R v. Ablitt - [2009] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ablitt [2009] QCA 45

PARTIES:

R
v
ABLITT, Craig Stuart
(applicant)

FILE NO/S:

CA No 360 of 2008
DC No 661 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

6 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2009

JUDGES:

de Jersey CJ, Muir JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant police officer pleaded guilty to one count of accessory after the fact to assault occasioning bodily harm – where applicant sentenced to 15 months imprisonment suspended after 5 months for a period of two years – whether sentence was manifestly excessive

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE – where applicant police officer knew colleague was guilty of the crime of assault occasioning bodily harm against a prisoner – where applicant’s actions aimed at enabling colleague to escape punishment – whether parity principle applies between the principle felon and the accessory

R v Smith & A-G of Qld (2000) 116 A Crim R 447; [2000] QCA 390, cited
R v Mills (1977) 16 SASR 581, cited

COUNSEL:

M J Byrne QC for the applicant
B G Campbell for the respondent

SOLICITORS:

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

e JERSEY CJd: I have had the advantage of reading the reasons for judgment of Atkinson J, with which I agree.

The applicant claimed a sense of grievance at being given a sentence more severe than that visited on the principal offender Burkett. The sentencing Judge expressly disavowed any objective of parity between the sentence to be imposed upon the applicant as accessory, and that imposed on Burkett as principal offender. That was a correct approach.

The gravity of the offence of being an accessory is not necessarily comparable with that of a principal offender. Here, for example, the spontaneity of Burkett’s assault may be contrasted with the studied deception of the applicant’s relevant conduct. Burkett’s assault was obviously serious, but on one view the applicant’s deceptions even more seriously undermined the integrity of the policing process and perceptions of it.

The actions of an accessory may have extremely grave consequences, even transcending delay or difficulty in the detection and prosecution of the principal offender. For example, it may even be the case that the wrong person ends up being charged with the principal offence.

This Judge was right to assess penalty in the respective cases largely independently of each other, by reference to the gravity of the particular offending: the acts done, their consequences, and the range of other relevant circumstances according to the legislation and case…

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. Ablitt

Details

AGLC: R v Ablitt [2009] QCA 45
Case: [2009] QCA 45
Decision Date: 6 March 2009

CaseChat Overview and Summary

The matter of R v. Ablitt involved a police officer who had pleaded guilty to being an accessory after the fact to an assault occasioning bodily harm. The accused was sentenced to 15 months imprisonment, which was suspended after 5 months for a period of two years. The applicant appealed against the sentence, arguing that it was manifestly excessive. The court was required to determine whether the sentence imposed was disproportionate and whether the parity principle applied between the principal offender and the accessory.

The court examined the legal grounds for interference with the sentence, focusing on whether the sentence was manifestly excessive or inadequate. The accused argued that the sentence did not reflect the mitigating factors of his involvement and that it was disproportionate compared to the sentence of the principal offender. The court considered the role of the accessory and the principles of sentencing for such offences. The court also assessed whether the parity principle should apply, considering the nature of the offence and the respective roles of the principal and the accessory.

In delivering its judgment, the court found that the sentence imposed was not manifestly excessive. The court considered the mitigating factors presented but ultimately determined that the sentence was appropriate given the seriousness of the offence and the role of the accused as an accessory. The court also concluded that the parity principle did not apply in this instance, as the roles and responsibilities of the principal offender and the accessory were distinct. As a result, the application for leave to appeal against the sentence was refused.

The court's final orders were to refuse the applicant's application for leave to appeal against the sentence. The sentence of 15 months imprisonment, suspended after 5 months for a period of two years, was upheld as appropriate and proportionate to the offence committed.

Orders

Orders of the court

The application for leave to appeal against sentence is refused

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 Ablitt [2009] QCA 45
PARTIES:	R v ABLITT, Craig Stuart (applicant)
FILE NO/S:	CA No 360 of 2008 DC No 661 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	6 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2009
JUDGES:	de Jersey CJ, Muir JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant police officer pleaded guilty to one count of accessory after the fact to assault occasioning bodily harm – where applicant sentenced to 15 months imprisonment suspended after 5 months for a period of two years – whether sentence was manifestly excessive CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE – where applicant police officer knew colleague was guilty of the crime of assault occasioning bodily harm against a prisoner – where applicant’s actions aimed at enabling colleague to escape punishment – whether parity principle applies between the principle felon and the accessory R v Smith & A-G of Qld (2000) 116 A Crim R 447; [2000] QCA 390, cited R v Mills (1977) 16 SASR 581, cited
COUNSEL:	M J Byrne QC for the applicant B G Campbell for the respondent
SOLICITORS:	Byrne Legal Group for the applicant Director of Public Prosecutions (Queensland) for the respondent