R v Armstrong - [2007] QCA 146

SUPREME COURT OF QUEENSLAND

CITATION:

R v Armstrong [2007] QCA 146

PARTIES:

R
v
ARMSTRONG, Christopher James
(applicant)

FILE NO/S:

CA No 32 of 2007
DC No 625 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2007

JUDGES:

McMurdo P, Holmes JA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Grant the application for leave to appeal against sentence
2. Allow the appeal
3. Set aside that part of the sentence suspending the five year term of imprisonment after serving a period of two years two months and instead order that it be suspended after serving a period of 20 months, with an operational period of five years
4. The original sentence is otherwise confirmed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND ENQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where guilty plea to offence of dangerous operation of a vehicle causing death – where insufficient weight given to the applicant's timely plea and remorse

Penalties and Sentences Act 1992 (Qld), s 144(6)

R v Breckenridge [2001] QCA 448; CA No 194 of 2001, 16 October 2001, considered
R v Hoad [2005] QCA 92; CA No 434 of 2004, 8 April 2005, considered
R v Holder [1983] 3 NSWLR 245, considered

COUNSEL:

C W Heaton for the applicant
D L Meredith for the respondent

SOLICITORS:

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

McMURDO P: The applicant pleaded guilty on 17 January 2007 in the District Court at Brisbane to the indictable offence of dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance and to the summary offences of drink driving and disqualified driving. The offences occurred on 20 January 2004. He was sentenced the following morning on the indictable offence to five years imprisonment suspended after two years and two months (the judge did not specify any operational period) and to lesser concurrent terms of imprisonment on the summary offences. The applicant applies for leave to appeal against the sentence contending that it was manifestly excessive in that an earlier suspension should have been granted.

The applicant was 31 at sentence and 28 when he committed the offences. He had a relevant criminal and traffic history. On 12 November 1999 he was convicted in the Maroochydore District Court of grievous bodily harm and sentenced to six months imprisonment to be served by way of an intensive correction order. The offence occurred in December 1997 when, whilst intoxicated, he threw several punches to the face of a man in a nightclub, causing a facial fracture which severed a nerve resulting in permanent loss of smell. The applicant subsequently breached…

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 Armstrong

Details

AGLC: R v Armstrong [2007] QCA 146
Case: [2007] QCA 146
Decision Date: 4 May 2007

CaseChat Overview and Summary

In the matter of R v Armstrong, the appellant, a convicted person, sought to appeal against his sentence. The appellant had pleaded guilty to dangerous operation of a vehicle causing death. The primary legal issue before the court was whether the sentence imposed was manifestly excessive, and in particular, whether the sentencing judge had given insufficient weight to the appellant's timely plea and remorse. The court was required to assess whether the sentence was appropriate in all the circumstances, taking into account the appellant's remorse and the principles of sentencing.

The court considered the appellant's guilty plea and remorse, which were significant mitigating factors. The court found that the sentencing judge did not sufficiently acknowledge the impact of these factors on the sentence imposed. The court emphasised the importance of remorse as a relevant consideration in sentencing, and that the appellant's remorse was genuine and significant. The court concluded that the sentence imposed was manifestly excessive, as the sentencing judge had not given sufficient weight to the appellant's timely plea and remorse.

Accordingly, the court granted the appellant leave to appeal against his sentence. The appeal was allowed, and the sentence was set aside in part. The court ordered that the five-year term of imprisonment be suspended after serving a period of 20 months, with an operational period of five years. The original sentence was otherwise confirmed.

The final orders of the court were to grant the application for leave to appeal against sentence, allow the appeal, set aside the relevant part of the sentence, and confirm the original sentence in all other respects.

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 sentence suspending the five year term of imprisonment after serving a period of two years two months and instead order that it be suspended after serving a period of 20 months, with an operational period of five years

4. The original sentence is otherwise confirmed

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

Full text does not contain this section.

CITATION:	R v Armstrong [2007] QCA 146
PARTIES:	R v ARMSTRONG, Christopher James (applicant)
FILE NO/S:	CA No 32 of 2007 DC No 625 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	19 April 2007
JUDGES:	McMurdo P, Holmes JA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Grant the application for leave to appeal against sentence 2. Allow the appeal 3. Set aside that part of the sentence suspending the five year term of imprisonment after serving a period of two years two months and instead order that it be suspended after serving a period of 20 months, with an operational period of five years 4. The original sentence is otherwise confirmed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND ENQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where guilty plea to offence of dangerous operation of a vehicle causing death – where insufficient weight given to the applicant's timely plea and remorse Penalties and Sentences Act 1992 (Qld), s 144(6) R v Breckenridge [2001] QCA 448; CA No 194 of 2001, 16 October 2001, considered R v Hoad [2005] QCA 92; CA No 434 of 2004, 8 April 2005, considered R v Holder [1983] 3 NSWLR 245, considered
COUNSEL:	C W Heaton for the applicant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent