R v. Wilkins; ex parte A-G (Qld) - [2008] QCA 272

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wilkins; ex parte A-G (Qld) [2008] QCA 272

PARTIES:

R
v
WILKINS, Robert James
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 177 of 2008
DC No 124 of 2008
DC No 282 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

12 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2008

JUDGES:

McMurdo P, Fraser JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal.1.

Set aside the sentence imposed at first instance and instead make the following orders:2.

In respect of the sentence of two years imprisonment imposed at the District Court at Toowoomba on 1 February 2007, the respondent is to serve the whole of the suspended imprisonment, a period of 21 months. (a)

In respect of counts 1, 2 and 3 on Indictment No 124 of 2008, on each count the respondent is to be imprisoned for a period of six months.Those sentences are concurrent with each other but cumulative upon the 21 month period of imprisonment imposed under order 2(a), above. (b)

In respect of all sentences imposed in orders 2(a) and (b), above, the date the respondent is to be released on parole is fixed at 2 June 2008 (the date of the original sentence on Indictment No 124 of 2008).(c)

The offender is ordered to pay restitution to Palcrest P/L (re taxi 1153) P O Box 108, Harlaxton, 4350, in the sum of $1,427.91, that order being referred to SPER for recovery(d)

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – respondent pleaded guilty to assault occasioning bodily harm, entering a vehicle to commit an indictable offence and wilful damage – offences committed during the operational period of a suspended sentence imposed for dangerous operation of a motor vehicle causing grievous bodily harm – sentencing judge imposed 12 months of the 21 months remaining under the suspended sentence – sentencing judge imposed concurrent sentences of 12 months for each of three recent offences – sentencing judge set parole release date as date of sentence and ordered restitution be paid for the damage caused – whether the whole of the unserved portion of the suspended sentence should have been imposed – whether the activated part of the suspended sentence should have been cumulative on the sentences for the recent offences – whether the sentence was manifestly inadequate

Penalties and Sentences Act 1992 (Qld), s 147

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, cited
R v AS; ex parte A-G (Qld)[2004] QCA 259, considered
R v Briody (2002) 134 A Crim R 170;

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.

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Details

Case: [2008] QCA 272
Decision Date: 12 September 2008

CaseChat Overview and Summary

The case of R v. Wilkins; ex parte A-G (Qld) involved an appeal against the sentence imposed on Wilkins, who had pleaded guilty to various criminal offences. These offences included assault occasioning bodily harm, entering a vehicle to commit an indictable offence, and wilful damage. Notably, these crimes were committed while Wilkins was under a suspended sentence for a prior offence of dangerous operation of a motor vehicle causing grievous bodily harm. The sentencing judge imposed a 12-month sentence for each of the three recent offences, running concurrently with each other and with the unserved portion of the suspended sentence, totalling 21 months. The judge also set the parole release date as the date of the sentence and ordered Wilkins to pay restitution for the damage caused.

The primary legal issues before the court were whether the sentencing judge should have imposed the entire unserved portion of the suspended sentence and whether the activated part of the suspended sentence should have been cumulative on the sentences for the recent offences. Additionally, the court needed to determine whether the sentence imposed was manifestly inadequate.

The court found that the sentencing judge erred in not imposing the whole of the unserved portion of the suspended sentence. The court held that the unserved portion of the suspended sentence should have been imposed in its entirety and should have been cumulative with the sentences for the recent offences. The court considered the sentence inadequate in light of the seriousness of the offences and Wilkins's criminal history. As a result, the appeal was allowed, and the original sentence was set aside. Instead, Wilkins was to serve the full 21 months of the suspended sentence, with an additional six months for each of the recent offences, these sentences running concurrently with each other but cumulative upon the 21-month period. The court also fixed the parole release date and ordered Wilkins to pay restitution to the victim for the damage caused.

Orders

Orders of the court

Allow the appeal.1.

Set aside the sentence imposed at first instance and instead make the following orders:2.

In respect of the sentence of two years imprisonment imposed at the District Court at Toowoomba on 1 February 2007, the respondent is to serve the whole of the suspended imprisonment, a period of 21 months. (a)

In respect of counts 1, 2 and 3 on Indictment No 124 of 2008, on each count the respondent is to be imprisoned for a period of six months.Those sentences are concurrent with each other but cumulative upon the 21 month period of imprisonment imposed under order 2(a), above. (b)

In respect of all sentences imposed in orders 2(a) and (b), above, the date the respondent is to be released on parole is fixed at 2 June 2008 (the date of the original sentence on Indictment No 124 of 2008).(c)

The offender is ordered to pay restitution to Palcrest P/L (re taxi 1153) P O Box 108, Harlaxton, 4350, in the sum of $1,427.91, that order being referred to SPER for recovery(d)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Wilkins; ex parte A-G (Qld) [2008] QCA 272
PARTIES:	R v WILKINS, Robert James (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 177 of 2008 DC No 124 of 2008 DC No 282 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	12 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2008
JUDGES:	McMurdo P, Fraser JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Allow the appeal.1. Set aside the sentence imposed at first instance and instead make the following orders:2. In respect of the sentence of two years imprisonment imposed at the District Court at Toowoomba on 1 February 2007, the respondent is to serve the whole of the suspended imprisonment, a period of 21 months. (a) In respect of counts 1, 2 and 3 on Indictment No 124 of 2008, on each count the respondent is to be imprisoned for a period of six months.Those sentences are concurrent with each other but cumulative upon the 21 month period of imprisonment imposed under order 2(a), above. (b) In respect of all sentences imposed in orders 2(a) and (b), above, the date the respondent is to be released on parole is fixed at 2 June 2008 (the date of the original sentence on Indictment No 124 of 2008).(c) The offender is ordered to pay restitution to Palcrest P/L (re taxi 1153) P O Box 108, Harlaxton, 4350, in the sum of $1,427.91, that order being referred to SPER for recovery(d)
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – respondent pleaded guilty to assault occasioning bodily harm, entering a vehicle to commit an indictable offence and wilful damage – offences committed during the operational period of a suspended sentence imposed for dangerous operation of a motor vehicle causing grievous bodily harm – sentencing judge imposed 12 months of the 21 months remaining under the suspended sentence – sentencing judge imposed concurrent sentences of 12 months for each of three recent offences – sentencing judge set parole release date as date of sentence and ordered restitution be paid for the damage caused – whether the whole of the unserved portion of the suspended sentence should have been imposed – whether the activated part of the suspended sentence should have been cumulative on the sentences for the recent offences – whether the sentence was manifestly inadequate Penalties and Sentences Act 1992 (Qld), s 147 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, cited R v AS; ex parte A-G (Qld)[2004] QCA 259, considered R v Briody (2002) 134 A Crim R 170;