R v Anderson - [2010] QCA 158

SUPREME COURT OF QUEENSLAND

CITATION:

R v Anderson [2010] QCA 158

PARTIES:

R
v
ANDERSON, Wayne Kevin
(applicant)

FILE NO/S:

CA No 18 of 2010
DC No 556 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

22 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2010

JUDGE:

McMurdo P, Muir JA and Cullinane J
Judgment of the Court

ORDERS:

1.   The application for leave to appeal is granted;

2.   The appeal is allowed;

3.    The sentence imposed in the District Court at Townsville on 13 November 2009 is set aside in so far as it sets a fixed parole release date of 30 June 2011 and substitute a parole release date of 30 October 2010.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – NON-PAROLE PERIOD OR MINIMUM TERM – GENERALLY – applicant convicted of one count of wilful damage, one count of assault occasioning bodily harm, two counts of common assault and one count of threatening violence – convictions breached suspended term of imprisonment imposed in 2005 – applicant sentenced to a total of six months imprisonment served cumulatively with fifteen months of suspended sentence – parole release date fixed significantly past halfway point of head sentence – primary judge failed to give reasons for parole release date – whether sentencing discretion has miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – MANIFESTLY EXCESSIVE OR INADEQUATE – applicant has made efforts at rehabilitation – whether sentence imposed was excessive

Penalties and Sentences Act 1992 (Qld), s 160B

R v Kitson[2008] QCA 86, cited
R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, applied
R v Norden [2009] 2 Qd R 455; [2009] QCA 42, applied

COUNSEL:

A Collins for the applicant
M Lehane for the respondent

SOLICITORS:

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

THE COURT:The applicant seeks leave to appeal against sentences imposed in the District Court at Townsville on 13 November 2009.

He pleaded guilty to five counts:

1. Wilful damage

2. Assault occasioning bodily harm

3. Common Assault (2)

4. Threatening violence.

He was sentenced to six months imprisonment on each charge.

Those terms were to be served concurrently as between themselves but cumulatively upon a term of suspended imprisonment which had been imposed on 14 October 2005 in the District Court at Townsville.

On 14 October 2005 the applicant had been sentenced in relation to a number of offences, the details to which we will return to shortly. The operative sentence imposed was three years' imprisonment to be suspended after serving 12 months with an operative period of three years.

The learned sentencing Judge in sentencing the applicant in respect of the matters the subject of this application, invoked 15 months of the two years' suspended imprisonment expressing the view that it would be unjust to require him to serve the whole of the…

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 Anderson

Details

AGLC: R v Anderson [2010] QCA 158
Case: [2010] QCA 158
Decision Date: 22 June 2010

CaseChat Overview and Summary

In the case of R v Anderson, the applicant appealed against his sentence imposed by the District Court of Queensland. The applicant was convicted of one count of wilful damage, one count of assault occasioning bodily harm, two counts of common assault and one count of threatening violence. The applicant's convictions breached a suspended term of imprisonment imposed in 2005, resulting in a sentence of six months imprisonment, to be served cumulatively with a fifteen-month suspended sentence. The District Court judge fixed the parole release date significantly past the halfway point of the head sentence, without providing reasons for the decision. The applicant argued that the sentencing discretion had miscarried and that the sentence was excessive.

The legal issues before the court were whether the primary judge had given sufficient reasons for the parole release date, and whether the sentence imposed was excessive or manifestly inadequate. The applicant also argued that he had made efforts at rehabilitation, which should be taken into account when considering the sentence. The court considered the principles of sentencing, including the need for deterrence, rehabilitation and proportionality. The court noted that the primary judge had not given reasons for the parole release date, which was a significant departure from the usual practice of setting the parole release date at the halfway point of the head sentence. The court also considered the applicant's efforts at rehabilitation, which demonstrated a willingness to address the underlying causes of his offending behaviour.

The court held that the sentencing discretion had miscarried due to the lack of reasons for the parole release date. The court also held that the sentence imposed was excessive, taking into account the applicant's efforts at rehabilitation and the need for proportionality. The court allowed the appeal and set aside the sentence imposed by the District Court. The court substituted a parole release date of 30 October 2010, which was closer to the halfway point of the head sentence. The court also granted the applicant leave to appeal and allowed the appeal on the basis that the sentence was excessive.

The court's orders were that the application for leave to appeal was granted, the appeal was allowed, and the sentence imposed by the District Court was set aside in so far as it set a fixed parole release date of 30 June 2011. The court substituted a parole release date of 30 October 2010. The court's decision highlights the importance of providing reasons for sentencing decisions and the need for proportionality in sentencing. The court also recognised the importance of taking into account an offender's efforts at rehabilitation when considering the sentence.

Orders

Orders of the court

1. The application for leave to appeal is granted;

2. The appeal is allowed;

3. The sentence imposed in the District Court at Townsville on 13 November 2009 is set aside in so far as it sets a fixed parole release date of 30 June 2011 and substitute a parole release date of 30 October 2010.

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 Anderson [2010] QCA 158
PARTIES:	R v ANDERSON, Wayne Kevin (applicant)
FILE NO/S:	CA No 18 of 2010 DC No 556 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	22 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	24 May 2010
JUDGE:	McMurdo P, Muir JA and Cullinane J Judgment of the Court
ORDERS:	1. The application for leave to appeal is granted; 2. The appeal is allowed; 3. The sentence imposed in the District Court at Townsville on 13 November 2009 is set aside in so far as it sets a fixed parole release date of 30 June 2011 and substitute a parole release date of 30 October 2010.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – NON-PAROLE PERIOD OR MINIMUM TERM – GENERALLY – applicant convicted of one count of wilful damage, one count of assault occasioning bodily harm, two counts of common assault and one count of threatening violence – convictions breached suspended term of imprisonment imposed in 2005 – applicant sentenced to a total of six months imprisonment served cumulatively with fifteen months of suspended sentence – parole release date fixed significantly past halfway point of head sentence – primary judge failed to give reasons for parole release date – whether sentencing discretion has miscarried CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – MANIFESTLY EXCESSIVE OR INADEQUATE – applicant has made efforts at rehabilitation – whether sentence imposed was excessive Penalties and Sentences Act 1992 (Qld), s 160B R v Kitson[2008] QCA 86, cited R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, applied R v Norden [2009] 2 Qd R 455; [2009] QCA 42, applied
COUNSEL:	A Collins for the applicant M Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent