The Queen v Jason Neil Graham - [2000] QCA 181

COURT OF APPEAL

de JERSEY CJ
McMURDO P
DUTNEY J

CA No 72 of 2000

THE QUEEN

JASON NEIL GRAHAM
(Also known as McLEAN) Applicant

ROCKHAMPTON

..DATE 16/05/2000

JUDGMENT

THE PRESIDENT: The applicant, who represents himself in this application, pleaded guilty in the District Court at Mackay on 17 March this year to three break, enter and steals (counts 1, 3 and 4) and one entering with intent (count 2). He was sentenced to 12 months’ imprisonment on counts 2 and 3 and to 18 months’ imprisonment on counts 1 and 4, concurrent with each other, and with a nine-month sentence imposed for an unlawful use of a motor vehicle, sentence which was imposed on 10 January 2000. These sentences were, however, cumulative upon a six-month term of imprisonment imposed for breach of probation for two burglaries and one stealing offence. It was recommended that the applicant be considered for release on parole after serving eight months of this effective sentence of two years.

The applicant complains in his notice of appeal that he was dealt with unfairly because his co-accused got nine months for 30 break and enters, whereas he got two years for four break and enters. It seems that this is a misconception which was based on what was incorrectly said at the sentence below.

The facts are as follows. The applicant, who has a drug problem, broke into three childcare centres and a pharmacy within a period of a week between 23 November 1999 and
3 December 1999. In all, about $4,400 worth of property was stolen and $1,500 worth of damage was caused. In the offence involving the pharmacy the roof was removed and $3,000 worth of pharmaceuticals, including 63 boxes of Sudafed tablets, were stolen. The property from the pharmacy was recovered but the property taken from the childcare centres was not. The offences were in breach of a probation order, as I have already noted.

The applicant’s co-offender, Townroe, was about 30 years of age. He pleaded guilty to 26 offences, which included these four offences. His offending was over a six-month period and was drug related. Some of Townroe’s offences occurred whilst he was effectively on bail, and the property taken and unrecovered exceeded $20,000. Townroe, however, had a lesser criminal history than this applicant. He was sentenced to two and a-half years’ imprisonment with a recommendation for parole after nine months.

The burglary counts, the subject of the breach of probation, involved the stealing of property from people’s homes, on one occasion whilst residents were at home and asleep.

The applicant has been in custody since his arrest on
27 December 1999 for the unlawful use of a motor vehicle charge, which was committed whilst on bail for these offences. He told the Court below, and has confirmed today, that he has been drug-free since he has been in custody.
The applicant was 20 years old at the time of sentence. He has an extensive criminal history, apparently considerably worse…

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: [2000] QCA 181
Decision Date: 16/05/2000

CaseChat Overview and Summary

In this case, the applicant, Jason Neil Graham, appealed against his sentence imposed by the District Court at Mackay. Graham pleaded guilty to multiple counts of break, enter, and steal, as well as entering with intent. He was sentenced to concurrent terms of imprisonment, which were cumulative to a sentence imposed for breach of probation. Graham argued that his sentence was unfair compared to the sentence of his co-accused, who received a lesser sentence for a greater number of similar offences.

The court had to decide whether Graham's sentence was manifestly excessive or if there was a justifiable sense of grievance warranting interference with the sentence. The court also had to consider the disparity in sentencing between Graham and his co-accused. The court examined the facts of the case, including the nature and extent of the offences committed by Graham and his co-accused, their respective criminal histories, and the sentences imposed on them.

The court found that Graham's sentence was not manifestly excessive, taking into account all relevant factors, including the sentence imposed on his co-accused. The court also found that there was no significant disparity in the sentences to cause a justifiable sense of grievance. The parole recommendation given to Graham appropriately recognised all mitigating factors. The court therefore refused the application for leave to appeal the sentence.

The final order was that the application for leave to appeal the sentence was refused.

Orders