R v Wilshire - [1998] QCA 30

COURT OF APPEAL

[1998] QCA 030

DAVIES JA PINCUS JA BYRNE J

CA No 402 of 1997
THE QUEEN
v.

STANLEY WILSHIRE

Applicant

BRISBANE
..DATE 06/02/98
060298 D.1 T10/BAN18 M/T COA 6/98
PINCUS JA: The applicant, who appeared before us today is a man
aged 37. He was convicted on 1 October 1997 of breaking,
entering and stealing and was sentenced to 18 months'
imprisonment with a recommendation for release on parole after
six months. The primary judge also recommended the applicant
receive psychiatric treatment and supervision.

The offence was one which the applicant committed with another man. They broke into a church and removed from it a safe containing a substantial amount of cash, account books, and what are described as memorabilia. This was done at night and some time later, the same night, the police were called and they found the applicant together with his co-offender and the safe. When the police came the applicant and his co-offender were trying to so arrange matters as to fit the safe on the back seat of a car, because it would not go in the boot.

The applicant has a substantial criminal history, although it appears to be one which consists primarily of fairly minor offences. Stealing, destruction of property and breaking and entering are to be found in that criminal history. The judge had before him a report by a community corrections officer dealing with three orders made against the applicant, the last being a probation order completed in 1995 in relation to which the officer said the applicant was deemed suitable for further probation orders.

The co-offender had much less of a criminal history than the applicant. He was a man aged 24 and he was given a community based order. Mr Wilshire has told us today, in effect, that he 060298 D.1 T10/BAN18 M/T COA 6/98

feels some resentment about the disparity between the treatment accorded to him and that accorded to the co-offender who, he assures us, is a man who really is involved in criminal activity although he has not frequently been caught. Although I have some sympathy with the argument which Mr Wilshire has advanced, it does not seem to be possible for us to ignore the formal criminal history which is, in Mr Wilshire's case, much more substantial.

The sentencing judge had the advantage of access to sentencing remarks made in the District Court in respect of the applicant in 1992, when he received a community service order and an order for probation in respect of offences of breaking and entering, arson and entering a dwelling house with intent. The damage was of the order of $34,000. On the basis of reports tendered before him, the District Court judge who sentenced the applicant in 1992 declined to order imprisonment. His Honour accepted the view that the combined effect of alcohol plus certain medication interacted with the applicant's damaged personality and impaired intellectual function so as to reduce his ability to control himself. In…

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 Wilshire

Details

AGLC: R v Wilshire [1998] QCA 30
Case: [1998] QCA 30
Decision Date: 6/02/1998

CaseChat Overview and Summary

The case of R v Wilshire involved the applicant, Stanley Wilshire, who was convicted of breaking, entering, and stealing. The offence occurred when Wilshire, together with a co-offender, broke into a church and stole a safe containing cash, account books, and memorabilia. Wilshire was sentenced to 18 months' imprisonment with a recommendation for release on parole after six months. Wilshire appealed against his sentence, arguing that it was disproportionate given his co-offender received a non-custodial sentence.

The central legal issues in this case revolved around the proportionality of the sentence imposed on Wilshire, considering his criminal history and the circumstances of the offence. Wilshire's appeal hinged on the argument that the disparity in sentencing between him and his co-offender was unjust. The court was tasked with determining whether the sentence was reasonable and whether it appropriately balanced the interests of Wilshire and the broader community.

The Court of Appeal found that the sentencing judge had appropriately considered Wilshire's criminal history, which included numerous minor offences but only one previous period of imprisonment. The court acknowledged Wilshire's plea of guilty, his relatively minor offence, and the fact that he and his co-offender were quickly apprehended. However, the court ultimately concluded that the sentence was not unreasonable. The judges expressed sympathy for Wilshire but emphasized the need to protect potential future victims of his criminal tendencies. The court held that the sentence was proportionate and dismissed the appeal.

The final order of the Court of Appeal was to refuse the application, affirming the original sentence imposed by the primary judge. The judges unanimously agreed that the sentence was appropriate and that the appeal was without merit.

Orders