R v Adams - [2006] QDC 197

[2006] QDC 197

DISTRICT COURT
CRIMINAL JURISDICTION
JUDGE ROBIN QC
THE QUEEN
v.
BRENTON KYLE ADAMS
MOUNT ISA
..DATE 20/06/2006
SENTENCE
Catchwords assault occasioning bodily harm and sentencing the offender had already been punished for the same incident, charged as common assault in the "Murri Court" - sentence reopened under s188 of Penalties and Sentences Act and vacated - offender allowed to withdraw his guilty plea - proper plea was autrefois convict

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HIS HONOUR: The Court is grateful to those operating the

watch-house here in Mount Isa for their vigilance in detecting
last evening that Mr Adams had already been convicted and
punished in respect of count 1 on the indictment to which he
pleaded guilty in this Court yesterday. The charge was of

assault occasioning bodily harm upon Colin Edward Namie on the 10
30th of March 2006. Exhibit 8 tendered this morning by Mr
Finch shows that before local Magistrate, Mr Manthey,
apparently sitting as the Murri Court, on the 12th of May this
year, Mr Adams pleaded guilty to an offence, "That on the 30th
day of March 2006 at Mount Isa in the State of Queensland [he] 20

unlawfully assaulted one Colin Edward Namie", and was punished for that and two driving offences by conviction and imposition of a fine of $1,600 in default 20 days' imprisonment, eight
months being allowed to pay. It is patent that the incident
on the 30th of March 2006 is one and the same as that 30
described to the Court yesterday in relation to count 1.

With the benefit of hindsight it can be said that the proper plea for Mr Adams to have entered was autrefois convict. Mr Adams should not have been called on to plead to count 1 at

40

all because he was facing double jeopardy. It is open to the Court under section 188 of the Penalties and Sentences Act to reopen the sentence. It is clear for the purposes of
subsection (1)(a) that the Court imposed a sentence that was
not in accordance with the law. It was a sentence of five 50
months' imprisonment. For practical purposes it is assumed
that because of a longer sentence of six months' imprisonment
in respect of count 2, and also a slightly longer balance

SENTENCE

2 60

remaining of a suspended sentence which Mr Adams was ordered

to serve, the setting aside of the order for five months'
(concurrent) imprisonment on count 1 will not have any great
practical…

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 Adams

Details

AGLC: R v Adams [2006] QDC 197
Case: [2006] QDC 197
Decision Date: 20/06/2006

CaseChat Overview and Summary

In the case of The Queen v. Brenton Kyle Adams, the defendant was charged with assault occasioning bodily harm against Colin Edward Namie on March 30, 2006, and was sentenced in the District Court of Mount Isa. The case arose from an incident where Adams had already been convicted and punished for the same offence by a local magistrate sitting as the Murri Court. The court was required to address the issue of whether the sentence could be reopened and vacated under section 188 of the Penalties and Sentences Act and whether the defendant could withdraw his guilty plea.

The court found that the sentence was not in accordance with the law as Adams had already been punished for the same incident, which amounted to double jeopardy. The court decided to vacate the sentence and allow Adams to withdraw his guilty plea, noting that his criminal history should not be misleadingly affected by this inappropriate conviction. The court also noted that it had found Adams in breach of a previous probation order and ordered him to serve two months' imprisonment concurrently with the other sentences.

The final orders of the court were to vacate the guilty plea entered by Adams, to vacate the sentence of five months' imprisonment, and to note in all records that there was no lawful conviction of Adams for the assault occasioning bodily harm on March 30, 2006. The court also ordered Adams to serve two months' imprisonment for breaching his probation order.

Orders