R v AN - [2003] QCA 349

SUPREME COURT OF QUEENSLAND

CITATION:

R v AN [2003] QCA 349

PARTIES:

R
v
AN
(applicant/appellant)

FILE NOS:

CA No 196 of 2003
DC No 665 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

11 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2003

JUDGES:

McMurdo P, Muir and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal granted.

2. Appeal allowed. The sentence imposed on the 28^th of May 2003 is set aside and a term of two years is substituted with a recommendation for parole on 5 November 2003.

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – TOTALITY – where the applicant pleaded guilty to a charge to stalking which activated suspended sentences for other offences – where the terms of imprisonment for the suspended sentences were ordered to be served cumulatively – whether the sentence imposed was manifestly excessive in all the circumstances

Domestic and Family Violence Protection Act 1989 (Qld)

R v Allie [1998] QCA 75; CA No 463 of 1997, 28 April 1998, [1999] 1 Qd R 618, referred to
R v Foodey [2003] QCA 310; CA No 30 of 2003, 25 July 2003, considered
R v Holznagel [1998] QCA 26; CA No 426 of 1997, 6 February 1998, referred to
R v Layfield [2003] QCA 3; CA No 271 of 2002, 29 January 2003, considered
R v Millar [2002] QCA 382; CA No 198 of 2002, 25 September 2002, considered
R v Tupper [1998] QCA 362; CA No 208 of 1998; 22 September 1998, referred to

COUNSEL:

K C Eberhardt for the applicant/appellant
S J Farnden for the Crown

SOLICITORS:

Boe & Callaghan for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR J: On 28 May 2003 the applicant, having pleaded guilty to stalking with circumstances of aggravation, was sentenced in the District Court to three years' imprisonment with a recommendation of eligibility for post-prison community based relief after 23 July 2004. At the same time, a 14 month concurrent suspended sentence of two and a half years suspended after 16 months with an operational period of four years imposed on 16 October for stalking was activated.

The applicant was also sentenced on 16 October 2000 for common assault and wilful damage. The practical effect of the sentences and the order is that the applicant is liable to serve a term of four years and two months imprisonment and is not eligible for release until after about 18 months. The applicant, who was 48 in May 2003, had been sentenced on 4 March 2002 to 267 days' imprisonment for stalking with a circumstance of aggravation.

Two hundred and sixty seven days spent in pre-sentence custody were declared to be time spent in serving the sentence. That…

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 AN

Details

AGLC: R v AN [2003] QCA 349
Case: [2003] QCA 349
Decision Date: 11 August 2003

CaseChat Overview and Summary

The applicant, AN, appealed against the sentence imposed by the Supreme Court of the Australian Capital Territory, which sentenced him to two years imprisonment for stalking, to be served cumulatively with suspended sentences for other offences. The applicant pleaded guilty to the charge and, as a result, the sentences for the other offences were activated. The High Court was asked to determine whether the sentence was manifestly excessive in all the circumstances.

The court considered the principles of totality and the need to ensure that the sentence imposed was proportionate to the offending. The court found that the sentence imposed was manifestly excessive, taking into account the cumulative effect of the sentences, the applicant's age and health, and the circumstances of the offending. The court also considered the principle of proportionality, which requires that the sentence should not be greater than is necessary to achieve the objectives of sentencing.

The court allowed the appeal and set aside the sentence imposed on the 28th of May 2003, substituting a term of two years imprisonment with a recommendation for parole on 5 November 2003. The court found that the original sentence was manifestly excessive and did not take into account the principle of totality. The court also found that the sentence did not achieve the objectives of sentencing, which include deterrence, retribution, rehabilitation, and protection of the community.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed. The sentence imposed on the 28th of May 2003 is set aside and a term of two years is substituted with a recommendation for parole on 5 November 2003.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v AN [2003] QCA 349
PARTIES:	R v AN (applicant/appellant)
FILE NOS:	CA No 196 of 2003 DC No 665 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	11 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	11 August 2003
JUDGES:	McMurdo P, Muir and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal granted. 2. Appeal allowed. The sentence imposed on the 28^th of May 2003 is set aside and a term of two years is substituted with a recommendation for parole on 5 November 2003.
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – TOTALITY – where the applicant pleaded guilty to a charge to stalking which activated suspended sentences for other offences – where the terms of imprisonment for the suspended sentences were ordered to be served cumulatively – whether the sentence imposed was manifestly excessive in all the circumstances Domestic and Family Violence Protection Act 1989 (Qld) R v Allie [1998] QCA 75; CA No 463 of 1997, 28 April 1998, [1999] 1 Qd R 618, referred to R v Foodey [2003] QCA 310; CA No 30 of 2003, 25 July 2003, considered R v Holznagel [1998] QCA 26; CA No 426 of 1997, 6 February 1998, referred to R v Layfield [2003] QCA 3; CA No 271 of 2002, 29 January 2003, considered R v Millar [2002] QCA 382; CA No 198 of 2002, 25 September 2002, considered R v Tupper [1998] QCA 362; CA No 208 of 1998; 22 September 1998, referred to
COUNSEL:	K C Eberhardt for the applicant/appellant S J Farnden for the Crown
SOLICITORS:	Boe & Callaghan for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent