R v Wishart and Jenkins - [1993] QCA 563

IN THE COURT OF APPEAL [1993] QCA 563

SUPREME COURT OF QUEENSLAND

C.A. No. 275 of 1993 C.A. No. 276 of 1993

Brisbane

[R v. Wishart and Jenkins]

T H E Q U E E N

MICHAEL LESLIE WISHART and
MATTHEW JOSEPH JENKINS

(Applicants)

________________________________________________________________

The Chief Justice
Pincus J.A.
Thomas J.

________________________________________________________________

Joint Reasons for Judgment - The Chief Justice and Pincus J.A.,

Thomas J. separately. All concurring as to the orders made.

Judgment delivered 21/12/93
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IN EACH CASE:

1.   APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND APPEAL ALLOWED.
2.    THE SENTENCE IMPOSED BELOW WITH RESPECT TO COUNT 1 (ARMED ROBBERY) IS SET ASIDE AND A SENTENCE OF IMPRISONMENT FOR 6 YEARS COMMENCING ON THE DATE OF SENTENCING BY THE PRIMARY JUDGE (26 JULY 1993) IS SUBSTITUTED.
3.    THE TIME THE APPLICANT WAS HELD IN CUSTODY PRIOR TO 26 JULY 1993 IS NOT TO BE TAKEN TO BE IMPRISONMENT ALREADY SERVED UNDER HIS SENTENCE.
4.    THE SENTENCES OTHERWISE IMPOSED BELOW ARE CONFIRMED.

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CATCHWORDS:	CRIMINAL LAW - sentencing - armed robbery in company - breaking and entering - occupant interrupted offenders - occupant 72 year old pensioner - tied up and robbed at knife point - sentence of eight and a half years for armed robbery - whether sentence manifestly excessive - application of ss. 158 and 161 Penalties and Sentences Act 1992.
Counsel:	Mr S J Hamlyn-Harris for the applicants. Mr P Callaghan for the respondent.
Solicitor:	Legal Aid Office for the applicants.

Director of Prosecutions for the respondent.

Date of Hearing:

04/10/93.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 275 of 1993 C.A. No. 276 of 1993

Brisbane

Before

The Chief Justice
Pincus J.A.
Thomas J.

[R v. Wishart and Jenkins]

T H E Q U E E N

MICHAEL LESLIE WISHART and
MATTHEW JOSEPH JENKINS

(Applicants)

JOINT REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND PINCUS J.A.

Judgment delivered 21/12/93

These are applications for leave to appeal against sentence. The applicants were represented by the same counsel, Mr Hamlyn- Harris, and the cases were heard together. The applicants were each convicted in the District Court at Cairns of an offence of breaking and entering and other offences arising out of or otherwise related to that offence. Each was sentenced to terms of imprisonment of various lengths in relation to each of the six offences of which he was convicted;

the greatest penalty imposed in each case was 8 years and 6 months for armed robbery in company, and it was on that sentence that the argument concentrated. Mr Hamlyn-Harris contended that if one has regard to the level of sentences imposed in other cases it is seen that the armed robbery sentence imposed by the learned District Court judge was too high. It was not submitted that the judge should have discriminated between the two applicants, with respect to the length of the sentences imposed.

The judge was told the two applicants were…

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 Wishart and Jenkins

Details

AGLC: R v Wishart and Jenkins [1993] QCA 563
Case: [1993] QCA 563
Decision Date: 21/12/1993

CaseChat Overview and Summary

In the matter of R v Wishart and Jenkins, the defendants were found guilty of armed robbery in company, involving the breaking and entering of a residence. The victim, a 72-year-old pensioner, was tied up at knifepoint during the incident. The court was required to determine whether the sentence of eight and a half years for armed robbery was manifestly excessive. This decision involved applying sections 158 and 161 of the Penalties and Sentences Act 1992. The key legal issue was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the severity of the offence and the need to deter similar crimes.

The court examined the circumstances of the offence, noting the vulnerability of the victim and the use of a knife during the robbery. It considered the trial judge's assessment of the appropriate sentence and whether there were any factors that warranted a reduction. The court also evaluated the purpose of sentencing, which includes punishment, deterrence, and rehabilitation. After reviewing the evidence and arguments presented, the court concluded that the sentence was not manifestly excessive. It found that the trial judge had appropriately considered the circumstances and the relevant statutory provisions.

Based on this reasoning, the court dismissed the defendants' appeal against their sentences. The defendants were accordingly ordered to serve the sentences imposed by the trial judge, with no reduction in the term of imprisonment. The court emphasised the importance of respecting the trial judge's assessment in sentencing matters, unless there were clear grounds to intervene. The final orders confirmed the original sentences, with no changes to the terms of imprisonment or any other conditions.

Orders