R v Wickham & Wickham - [1998] QCA 168

[1998] QCA 168

COURT OF APPEAL
PINCUS JA
McPHERSON JA

FRYBERG J

Appeal Nos 454 of 1997

455 of 1997

THE QUEEN
v.
SHANE TIMOTHY WICKHAM and

GLENN DAVID WICKHAM

BRISBANE
..DATE 25/02/98
250298 D.1 T02/JXP33 M/T COA24/98
PINCUS JA: These are two applications for leave to appeal
against sentence relating to offences committed at Rockhampton
in January 1997. Each of the applicants is young; Shane
Wickham was 25 years of age when the offences were committed,
and Glenn Wickham 23 years of age. Each of them pleaded guilty
before His Honour Judge Nase to one offence of breaking,
entering and stealing and another of breaking and entering with
intent. Each was sentenced to three years imprisonment.

The basic challenges to the sentence are three: the offenders' youth, the fact that neither of them had any prior criminal history, and that they pleaded guilty. In the Court below the two offenders were represented by the same counsel. Here, each is represented separately, and Mr Farmer, who appears for Glenn, makes a special plea on his behalf that if one compares his circumstances with those of his elder brother it seems odd that the two received the same punishment. That is a subject to which I will return.

The first of the offences, each of which was committed by the applicants jointly, occurred on 13 January 1997 when Shane Wickham was dropped off at the rear of a Spotlight store at which he was employed as a security officer. Shane broke into the building, while Glenn and Shane's de facto wife Rachel Holt were in the car which had brought him there. The two groups were in communication by mobile phone. Shane's entry into the building set off security alarms. People came to search the building but did not find Shane, who was hiding in the ceiling.

He took the opportunity to examine the alarm system in

250298 D.1 T02/JXP33 M/T COA24/98
anticipation of a further entry.

It was suggested during the course of the hearing, and I agree, that a particularly reprehensible feature of the case against Shane was that he was in a position of trust; being employed to prevent persons from stealing from the property, he used, to some extent at least, his inside knowledge to do that very thing. It should be mentioned that his security job did not involve him with the alarm system I have mentioned; his function was to stop people from stealing during trading hours.

The entry of Shane on 13 January having produced no profit, the applicants returned to the store a few days later and on this occasion they took precautions to prevent the alarm system from working, by using sticky tape and other means. Goods on display were upturned, the office was broken into, two large holes were made in the wall and a safe which had been attached to the floor by a bolt was taken out. It contained sets of keys, gift vouchers and the sum of over…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wickham & Wickham

Details

AGLC: R v Wickham and Wickham [1998] QCA 168
Case: [1998] QCA 168
Decision Date: 25/02/1998

CaseChat Overview and Summary

In the matter of the Queen versus Shane Timothy Wickham and Glenn David Wickham, the Queensland Court of Appeal considered two applications for leave to appeal against sentences imposed following the applicants' pleas of guilty to breaking and entering charges. Shane Wickham was 25 years old at the time of the offence, and Glenn Wickham was 23. Both applicants were sentenced to three years imprisonment. The applicants argued that their youth, lack of prior criminal history, and pleas of guilty warranted a lesser sentence. The court acknowledged these factors but highlighted the sophisticated nature of the crimes and Shane's breach of trust as a security officer, which justified a custodial sentence. The court compared the present case with previous cases, Taylor and Leigep and Heath, and found that the sentences imposed on the applicants were appropriate, with some adjustment for Glenn Wickham. The Court of Appeal confirmed Shane Wickham's sentence but reduced Glenn Wickham's sentence from three years to two years for each offence.

The primary legal issue for the court was whether the sentences imposed on the applicants were appropriate given the mitigating factors of their youth, lack of criminal history, and pleas of guilty. The court also had to consider the severity of the offences, which involved a sophisticated break-in and a breach of trust. By comparing the present case with previous cases, the court sought to determine if the sentences were commensurate with the crimes committed and the applicable legal principles. The reasoning of the court demonstrated a balance between the mitigating factors and the need to deter and appropriately punish the offences, leading to the decision to reduce Glenn Wickham's sentence while confirming Shane Wickham's sentence.

Orders