R v Alvin - [2004] QCA 422

SUPREME COURT OF QUEENSLAND

CITATION:

R v Alvin [2004] QCA 422

PARTIES:

R
v
ALVIN, Shane Bradley
(applicant)

FILE NO/S:

CA No 274 of 2004
SC No 203 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

4 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2004

JUDGES:

McMurdo P and Fryberg and Mullins JJ
Separate reasons for judgment of each member of the Court, McMurdo P and Mullins J concurring as to the orders made, Fryberg J dissenting in part

ORDERS:

1.   Grant the application for leave to appeal against sentence

2.   Allow the appeal

3.   Set aside that part of the order recording the conviction

4.   Instead of ordering that the offender serve the whole of the suspended imprisonment, order that he serve nine months of it

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS – PROBATION ORDERS AND SUSPENSION OF SENTENCE – GENERALLY – applicant convicted of assaulting a person 60 years of age or more – applicant had been convicted in 2002 of attempting to procure murder and sentenced to five years imprisonment suspended forthwith – assault involved a push to the chest and complainant did not sustain any injury – applicant sentenced to serve full period of suspended sentence for breach – whether it was unjust to require the applicant to serve the whole period of the suspended sentence in the circumstances

Penalties and Sentences Act 1992 (Qld), s 147(3)

COUNSEL:

A J Moynihan for the applicant
S G Bain for the respondent

SOLICITORS:

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

THE PRESIDENT: On 13 May 2002 Mr Alvin pleaded guilty in the Supreme Court at Brisbane to one count of attempting to procure murder. A pre-sentence report was ordered and Mr Alvin was remanded in custody. On 23 August 2002 he was sentenced by Mr Justice Ambrose to five years imprisonment suspended forthwith with an operational period of five years.

On 6 August 2004 he was dealt with by a different judge for committing an offence during the operational period of the suspended sentence and ordered to serve the whole of it. He contends in his sole ground of appeal that this was manifestly excessive but in fact his contention is that the Court should have decided that it was unjust to make such an order under s 147(3) Penalties and Sentences Act 1992 (Qld) ("the Act") and imposed a lesser consequence.

The offence that was committed during the operational period of the suspended sentence was one of assaulting a person 60 years of age or more on 12 November 2003. Mr Alvin was convicted and fined $300 in default six days imprisonment and recommitted to the Supreme Court, Brisbane to be dealt with for this.

The facts of that assault are as follows. The complainant, the partner of Mr Alvin's mother, had…

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 Alvin

Details

AGLC: R v Alvin [2004] QCA 422
Case: [2004] QCA 422
Decision Date: 4 November 2004

CaseChat Overview and Summary

In the case of R v Alvin, the applicant was convicted of assaulting a person aged 60 years or older. The dispute arose from the sentence imposed upon the applicant for breaching a suspended sentence previously imposed for an attempt to procure murder. The matter was heard in the Supreme Court of Queensland. The applicant, who had been convicted in 2002 for attempting to procure murder, was sentenced to five years imprisonment, which was suspended forthwith. In the present case, the applicant was convicted of assaulting an elderly person by pushing them to the chest, although the complainant did not sustain any injury. The applicant was sentenced to serve the full period of the suspended sentence for the breach. The applicant argued that it was unjust to require them to serve the entire suspended sentence in the circumstances.

The court was required to determine whether it was unjust to require the applicant to serve the entire period of the suspended sentence. The court had to consider the nature of the current offence and the circumstances of the applicant's previous conviction. The court also had to weigh the principles of justice and proportionality in sentencing the applicant for the current offence. The court had to consider the appropriate sentence for the current offence, taking into account the applicant's previous convictions and the circumstances of the case.

The court found that the sentence imposed by the lower court was unjust. The court held that it was disproportionate to require the applicant to serve the entire period of the suspended sentence for the current offence. The court noted that the current offence was a relatively minor one, involving a push to the chest without any injury to the complainant. The court also noted that the applicant had already served a significant period of time in prison for the previous offence. The court held that it was appropriate to order the applicant to serve only a portion of the suspended sentence for the current offence, rather than the entire period. The court set aside the part of the order that required the applicant to serve the whole of the suspended sentence and ordered that the applicant serve nine months of the suspended sentence instead.

The final orders of the court were to grant the application for leave to appeal against the sentence, to allow the appeal, to set aside the part of the order recording the conviction, and to order that the applicant serve nine months of the suspended sentence instead of the whole period. The court's decision highlights the importance of proportionality and justice in sentencing, and the need to consider the circumstances of each case when imposing a sentence.

Orders

Orders of the court

1. Grant the application for leave to appeal against sentence

2. Allow the appeal

3. Set aside that part of the order recording the conviction

4. Instead of ordering that the offender serve the whole of the suspended imprisonment, order that he serve nine months of it

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 Alvin [2004] QCA 422
PARTIES:	R v ALVIN, Shane Bradley (applicant)
FILE NO/S:	CA No 274 of 2004 SC No 203 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	4 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2004
JUDGES:	McMurdo P and Fryberg and Mullins JJ Separate reasons for judgment of each member of the Court, McMurdo P and Mullins J concurring as to the orders made, Fryberg J dissenting in part
ORDERS:	1. Grant the application for leave to appeal against sentence 2. Allow the appeal 3. Set aside that part of the order recording the conviction 4. Instead of ordering that the offender serve the whole of the suspended imprisonment, order that he serve nine months of it
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS – PROBATION ORDERS AND SUSPENSION OF SENTENCE – GENERALLY – applicant convicted of assaulting a person 60 years of age or more – applicant had been convicted in 2002 of attempting to procure murder and sentenced to five years imprisonment suspended forthwith – assault involved a push to the chest and complainant did not sustain any injury – applicant sentenced to serve full period of suspended sentence for breach – whether it was unjust to require the applicant to serve the whole period of the suspended sentence in the circumstances Penalties and Sentences Act 1992 (Qld), s 147(3)
COUNSEL:	A J Moynihan for the applicant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent