The Queen v Peter Brian Weiss - [2000] QCA 262

[2000] QCA 262
COURT OF APPEAL

McPHERSON JA
DAVIES JA
THOMAS JA

[R v Weiss]

CA No 102 of 2000

THE QUEEN

PETER BRIAN WEISS

BRISBANE

..DATE 04/07/2000

JUDGMENT

McPHERSON JA: The applicant pleaded guilty in the District Court at Southport to a series of Commonwealth and State offences committed between 9 May 1995 and 6 August 1999.

In the case of the Commonwealth informations, there was a total of 60 offences. There were 43 charges of imposition, together with two of attempted imposition, both of which offences attract a maximum penalty of imprisonment for two years; one charge of forgery and one of uttering, with a maximum of 10 years imprisonment; seven of opening a bank account in a false name and six of operating a bank account in a false name, each of which attract a maximum of two years imprisonment. The amount of money involved or taken as a result of those offences was some $142,000.

So far as the State offences were concerned, there was a total of 16, including four counts of misappropriation with a circumstance of aggravation, namely, that the amount involved was over a certain figure. Those offences were charged in counts 1, 2 and 4 of indictment 613 of 1999, and count 1 in indictment 641 of 1999. The penalty for an offence of that kind with a circumstance of aggravation is 10 years. In addition, there were eight counts of misappropriation without a circumstance of aggravation, three of false pretences and one of a wilfully false promise. The total amount in that instance was some $138,000, producing a grand total for both series of offences of some $275,000.

The pleas of guilty, the conviction and the sentence all took place on 14 March 2000. It is pertinent to state at this point that the applicant is a man aged 36 years, or so he was at the date of sentence. He was born on 7 March 1964. He is a builder with some qualifications or ability, married with two children, and having previous convictions for 13 counts of false pretences in 1998, which attracted a sentence of probation for two years.

His Honour the learned sentencing Judge ordered that in respect to the Commonwealth offences, the applicant serve a term of two years' imprisonment in respect of each offence - those sentences to be served concurrently - and in respect of the State offences, five years' imprisonment on each count, also to be served concurrently. He did, however, order that the sentence for the State offences be served cumulatively on the Commonwealth offences, resulting in a total term of imprisonment of seven years for all the offences to which the applicant pleaded guilty.

His Honour made no order for release on recognisance in respect of the Commonwealth offences, but made a recommendation for parole after serving two and a half years of the combined sentences.

Rather than recite the details of the offences and the way in which they 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 The Queen v Peter Brian Weiss

Details

AGLC: The Queen v Peter Brian Weiss [2000] QCA 262
Case: [2000] QCA 262
Decision Date: 04/07/2000

CaseChat Overview and Summary

The Queen brought an appeal against the decision of the sentencing judge in the case of The Queen v Peter Brian Weiss. The applicant, Peter Brian Weiss, had pleaded guilty to a series of Commonwealth and State offences committed between 9 May 1995 and 6 August 1999. The offences included imposition, forgery, uttering, opening and operating bank accounts in false names, misappropriation, false pretences, and wilfully false promises. The total amount of money involved in these offences was approximately $275,000. The sentencing judge had imposed a sentence of two years' imprisonment for each Commonwealth offence, to be served concurrently, and five years' imprisonment for each State offence, also to be served concurrently, but cumulatively on the Commonwealth offences, resulting in a total term of imprisonment of seven years. The applicant appealed against the sentence on the grounds that it contained several technical errors. The Court of Appeal was required to decide whether the sentencing judge had made any errors in the structuring of the sentences and, if so, to exercise afresh the sentencing discretion in this case. The Court of Appeal found that there were several technical errors in the structuring of the sentences imposed by the sentencing judge. Firstly, the sentence imposed contravened s.19AJ of the Crimes Act 1914, which prevents a Court from fixing a single non-parole period in respect of both Federal and State offences. Secondly, the sentencing judge did not give reasons for his decision not to make a recognisance release order, as required by s.19(1) of the Crimes Act. Thirdly, the sentences were made cumulative when it would have been more appropriate to make the sentences concurrent. The Court of Appeal exercised afresh the sentencing discretion in this case and imposed a sentence of six years in respect of each of the four State offences of misappropriation with circumstances of aggravation, and two years in respect of each of the other State offences, to be served concurrently with the Federal sentences. The Court of Appeal also ordered that the applicant be eligible to be considered for parole after serving a total of two and a half years of the sentences on the State offences. The Court of Appeal found that the applicant's plea of guilty had been taken into account by making the sentences for the Federal and State offences concurrent instead of cumulative as was done in the sentencing court below. The Court of Appeal also found that the impact of the previous order that the State offences be served cumulatively itself produced an effective seven year head sentence. The Court of Appeal further found that the reasons for not making a recognisance release order in this case included the number of offences involved, the use of forgery in some of the Federal offences, the large sums of money obtained by the applicant, and the fact that several of the offences were committed while the applicant was on bail awaiting trial or sentence.

Orders