R v Wolens - [2010] QCA 167

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wolens [2010] QCA 167

PARTIES:

R
v
WOLENS, Jeremy John
(applicant)

FILE NO/S:

CA No 106 of 2010
DC No 970 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

2 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2010

JUDGES:

Chief Justice, White JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – PARITY BETWEEN CO-OFFENDERS – where applicant and three others involved in car chase – where applicant fired gun and hit other vehicle twice – where all offenders charged on one indictment – where each offender received different sentences due to their respective involvement in the offences – where applicant sentenced to 12 months imprisonment, suspended after three months, with an operational period of two years – where applicant was the only offender to serve period of imprisonment - whether sentence manifestly excessive – whether imprisonment should have been imposed on the applicant – whether sentencing Judge impermissibly referred to discontinued charge of acts intended to maim – whether sentencing Judge gave weight to s 9(2)(a) and (d) Penalties and Sentences Acts 1992 (Qld) – whether there was disparity between applicant’s sentence and sentence of co-offenders such as to give rise to a justifiable sense of grievance

Criminal Code 1899 (Qld), s 7, s 8
Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(2)(d), s 9(2)(i), s 13A

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R vIkin[2007] QCA 224, cited
R v Rochford[2006] QCA 200, considered
R v Taylor & Napatali; ex parte Attorney-General of Qld[1999] QCA 323; (1999) 106 A Crim R 578, considered
R v Turner[2002] QCA 79, considered
R v White [1995] QCA 198, considered
R v Wing[2007] QCA 138, cited

COUNSEL:

S A Lynch for the applicant
D C Boyle for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of White JA. I agree that the application should be dismissed for those reasons.

WHITE JA: The applicant seeks leave to appeal a head sentence of 12 months to be suspended after serving three months, imposed upon him in the District Court at Ipswich on 28 April 2010 for a number of offences, the most serious of which was going armed in public so as to cause fear and wilful damage to a motor vehicle by shooting at it. He contends that he ought not to have been given a sentence which involved imprisonment and instead ought…

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 Wolens

Details

AGLC: R v Wolens [2010] QCA 167
Case: [2010] QCA 167
Decision Date: 2 July 2010

CaseChat Overview and Summary

The matter before the court was an appeal by the applicant, Wolens, against his sentence of 12 months imprisonment, suspended after three months, with an operational period of two years. Wolens was one of four individuals involved in a car chase incident where he fired a gun at another vehicle, striking it twice. The case was heard in the Supreme Court of Queensland. The applicant's appeal centred on several grounds, including the assertion that the sentence was manifestly excessive, the lack of parity between his sentence and those of his co-offenders, and the alleged inappropriate consideration of a discontinued charge in the sentencing process. The court had to determine whether the sentence was indeed excessive, if imprisonment should have been imposed on the applicant, and whether the sentencing judge properly balanced the relevant sentencing principles.

The court examined the principles of sentencing, particularly the need to achieve parity between co-offenders and the avoidance of manifestly excessive sentences. The court assessed the individual roles of each offender in the incident and the principles of culpability and deterrence. It was noted that Wolens was the only one to serve a period of imprisonment, which raised questions about the fairness of his sentence in comparison to those of his co-offenders. The court also considered whether the sentencing judge erred in referring to a discontinued charge and whether there was an imbalance in the sentences that could lead to a sense of grievance among the co-offenders. Ultimately, the court concluded that the sentence was appropriate, considering the totality of the circumstances and the individual culpability of the applicant.

In light of the reasoning provided, the court dismissed the applicant's appeal. The court found that the sentence imposed was not manifestly excessive and that the sentencing judge appropriately balanced the relevant principles in determining the sentence. The court also held that there was no disparity between the sentences of the co-offenders that would give rise to a justifiable sense of grievance. Therefore, the appeal was dismissed, and the original sentence stood as imposed by the trial court.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Wolens [2010] QCA 167
PARTIES:	R v WOLENS, Jeremy John (applicant)
FILE NO/S:	CA No 106 of 2010 DC No 970 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	2 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	17 June 2010
JUDGES:	Chief Justice, White JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – PARITY BETWEEN CO-OFFENDERS – where applicant and three others involved in car chase – where applicant fired gun and hit other vehicle twice – where all offenders charged on one indictment – where each offender received different sentences due to their respective involvement in the offences – where applicant sentenced to 12 months imprisonment, suspended after three months, with an operational period of two years – where applicant was the only offender to serve period of imprisonment - whether sentence manifestly excessive – whether imprisonment should have been imposed on the applicant – whether sentencing Judge impermissibly referred to discontinued charge of acts intended to maim – whether sentencing Judge gave weight to s 9(2)(a) and (d) Penalties and Sentences Acts 1992 (Qld) – whether there was disparity between applicant’s sentence and sentence of co-offenders such as to give rise to a justifiable sense of grievance Criminal Code 1899 (Qld), s 7, s 8 Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(2)(d), s 9(2)(i), s 13A Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R vIkin[2007] QCA 224, cited R v Rochford[2006] QCA 200, considered R v Taylor & Napatali; ex parte Attorney-General of Qld[1999] QCA 323; (1999) 106 A Crim R 578, considered R v Turner[2002] QCA 79, considered R v White [1995] QCA 198, considered R v Wing[2007] QCA 138, cited
COUNSEL:	S A Lynch for the applicant D C Boyle for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent