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R v Benson

R v Benson

Case [2014] QCA 188 8 August 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Benson [2014] QCA 188

PARTIES:

R
v
BENSON, David Richard
(applicant)

FILE NO/S:

CA No 31 of 2014
DC No 484 of 2014
DC No 6 of 2014
DC No 19 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Hervey Bay

DELIVERED ON:

8 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2014

JUDGES:

Fraser and Morrison JJA and Philippides J
Separate reasons for judgment for each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Set aside that part of the orders made on 7 February 2014 that the offender be imprisoned for a period of 18 months, and in lieu thereof order that the offender be imprisoned for a period of 18 months to be served cumulatively upon the sentence imposed in the Magistrates Court on 14 October 2011.

3.   Otherwise reaffirm the sentence imposed on 7 February 2014.

4.   The Registrar of the District Court amend the Verdict and Judgment Record to include the additional offence of Serious Assault which the Applicant was convicted of on 7 February 2014.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to one count of serious assault with circumstances of aggravation and four summary offences – where the applicant had an extensive criminal record including convictions for assault – where at the time that the offences the subject of this application were committed the applicant was on probation and parole – where in relation to the serious assault the applicant was sentenced to 18 months imprisonment with a parole eligibility date set at one-third and 158 days of pre-sentence custody were declared – where in relation to the summary offences a conviction was recorded and the applicant was not further punished – where s 156A Penalties and Sentences Act 1992 (Qld) was not considered – where s 156A requires the applicant serve any further term of imprisonment cumulatively upon any unexpired portion of the earlier sentence – whether the application for leave to appeal should be granted – whether the sentence imposed was manifestly excessive

Corrective Services Act 2006 (Qld), s 190(2)(c), s 193(3)(b), s 209
Penalties and Sentences Act 1992 (Qld), s 156A, s 190(2)(c), s 193(3)(b)

R v Craigie[2014] QCA 1, cited
R v KAC[2010] QCA 39, cited

COUNSEL:

The applicant appeared on his own behalf
J A Wooldridge for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Morrison JA and the orders proposed by his Honour.

MORRISON JA: This is an application for leave to appeal against a sentence imposed on 7 February 2014 for an offence of serious assault with circumstances of aggravation. The applicant was sentenced to…

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 Benson

Details

AGLC: R v Benson [2014] QCA 188
Case: [2014] QCA 188
Decision Date: 8 August 2014

CaseChat Overview and Summary

The applicant, Benson, appealed against the sentence imposed following his guilty plea to a serious assault with aggravating circumstances and four summary offences. The matter was heard in the District Court of Queensland. The crux of the appeal was whether the sentence was manifestly excessive and whether the applicant should be granted leave to appeal.

The legal issues before the court were whether the sentence imposed by the District Court was manifestly excessive and whether the court should have considered the provisions of s 156A Penalties and Sentences Act 1992 (Qld). The applicant argued that the sentence of 18 months imprisonment for the serious assault, with parole eligibility after one-third and 158 days of pre-sentence custody, was manifestly excessive. Furthermore, the applicant contended that the court failed to consider s 156A, which mandates that any further term of imprisonment be served cumulatively upon any unexpired portion of the earlier sentence.

The court found that the sentence was indeed manifestly excessive and granted the applicant leave to appeal. The court emphasised that the failure to consider s 156A was a significant oversight. Consequently, the court set aside the part of the orders imposing an 18-month imprisonment sentence and ordered that the sentence be served cumulatively upon the sentence imposed in the Magistrates Court on 14 October 2011. The court reaffirmed the rest of the sentence and ordered the Registrar of the District Court to amend the Verdict and Judgment Record to include the additional offence of Serious Assault.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Set aside that part of the orders made on 7 February 2014 that the offender be imprisoned for a period of 18 months, and in lieu thereof order that the offender be imprisoned for a period of 18 months to be served cumulatively upon the sentence imposed in the Magistrates Court on 14 October 2011.

3. Otherwise reaffirm the sentence imposed on 7 February 2014.

4. The Registrar of the District Court amend the Verdict and Judgment Record to include the additional offence of Serious Assault which the Applicant was convicted of on 7 February 2014.

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

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Ratio Decidendi

Legal Principle Established

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Citations

R v Benson [2014] QCA 188

Most Recent Citation

R v Murray [2014] QCA 250

Cases Citing This Decision

RXY v Commissioner of Police [2025] QDC 163
Citation 1 (Para 8)

…In R v Benson [2014] QCA 188 a sentence of 18 months was imposed with parole after 6 months. The violence perpetrated by the offender was significant. He punched the police officer in the eye, pulled the officer into him and choked him, then hooked his finger into the officer’s eye causing substantial pain. In th…
WPT v QPS [2021] QDC 250
Citation 2 (Para 7)

…den [2006] QCA 416; R v Pootchemunka (Unreported, QDC, 3 October 2011, Harrison DCJ); R v Brown [2013] QCA 185; R v Murray [2014] QCA 250; R v Benson [2014] QCA 188; R v MCL [2017] QCA 114; and R v Adcock [2021] QDC 116.…
Dawkins v Queensland Police Service [2018] QDC 161
Citation 3 (Para 1)

…f those comparative cases, as well as R v Brown .[38] [34] (unreported, Fantin DCJ, Cairns District Court, 8 March 2018) [35] [2003] QCA 132 [36] [2014] QCA 188 [37] [2017] QDC 45 [38] [2013] QCA 185…
R v Roberts [2017] QCA 256
Citation 4 (Para 1)

…least 18 months’ imprisonment, perhaps as long as two years’ imprisonment, with a period of actual custody required to be served. [4][2014] QCA 188.…
R v Gopurenko [2017] QDC 107
Citation 5 (Para 1)

…prisonment in Victoria, even to the extent that a minimal liability may be discernible.[9] [8] R v Nicholsen [2016] QCA 315 at [43]; R v Benson [2014] QCA 188 at [36]. [9] R v Herbert [2014] QCA 83 at [28], noting that this case was considered as a comparative in the Court of Appeal decision in this matter.…
Townsend v Commissioner of Police [2017] QDC 45
Citation 6 (Para 1)

…nalty but presented arguably less culpable circumstances than this case and that Benson was presented as a more serious case. [50][2001] QCA 322. [51][2014] QCA 188.…
Addo v Senior Constable Jacovos [2016] QDC 271
Citation 7 (Para 1)

…R v Benson [2014] QCA 188 involved an offence of serious assault police causing bodily harm. The 42 year old applicant punched a police officer to his left eye, tried to choke him, gouged his eyeball and bit his leg. The officer suffered injuries including a bite mark to the upper left thigh (no break to the skin…
Ross v Commissioner of Police [2015] QDC 315
Citation 8 (Para 36)

…mum penalty for the particular offence of which the applicant was convicted will lead to more severe penalties for that offence (see R v Benson [2014] QCA 188 at [36] per Morrison JA), “[i]t does not necessarily follow from the fact of an increase in the maximum penalty that all such offences committed after the…
R v Lappan [2015] QCA 180
Citation 9 (Para 25)

…; the previous maximum sentence was seven years. [19][2014] QCA 96. [20][2015] QCA 48. [21][2003] QCA 422. [22][1997] QCA 476. [23][2004] QCA 82. [24][2014] QCA 188. [25][2001] QCA 372. [26][1998] QCA 459.…
R v Murray [2014] QCA 250
Citation 10 (Para 1)

…ximum penalty for the particular offence of which the applicant was convicted will lead to more severe penalties for that offence (see R v Benson [2014] QCA 188 at [36] per Morrison JA), “[i]t does not necessarily follow from the fact of an increase in the maximum penalty that all such offences committed after th…
Beck v State of New South Wales; Beck v Commissioner of Police New South Wales [2012] NSWSC 1483
Citation 11 (Para 1)

…e prosecution had to prove that there was present in the street, a person who could have heard the words which were the subject of the charge. Citing R v Benson (1882) 8 VLR (L) 2, (to which I will come) his Honour held that the offence is made out despite absent of proof that there was anyone in the public place to…

See all citing cases →

Cases Cited

R v Craigie [2014] QCA 1
Citation 1 (Para 1)

…ibility date. The period of six months allowed by s 193(3)(b) for the Parole Board to decide such an application is a maximum period. See R v Craigie [2014] QCA 1, at [19].…
R v KAC [2010] QCA 39
Citation 2 (Para 1)

…will only have the effect of extending the full-time discharge date by two days and will have no effect on the parole eligibility date. [22] R v KAC [2010] QCA 39 per Keane JA at [17]-[18].…

Legislation Cited

Corrective Services Act 2006 (Qld) 190(2)(c)
2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld) 156A
2 mentions (from Para 1)

CITATION:	R v Benson [2014] QCA 188
PARTIES:	R v BENSON, David Richard (applicant)
FILE NO/S:	CA No 31 of 2014 DC No 484 of 2014 DC No 6 of 2014 DC No 19 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Hervey Bay
DELIVERED ON:	8 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	20 June 2014
JUDGES:	Fraser and Morrison JJA and Philippides J Separate reasons for judgment for each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Set aside that part of the orders made on 7 February 2014 that the offender be imprisoned for a period of 18 months, and in lieu thereof order that the offender be imprisoned for a period of 18 months to be served cumulatively upon the sentence imposed in the Magistrates Court on 14 October 2011. 3. Otherwise reaffirm the sentence imposed on 7 February 2014. 4. The Registrar of the District Court amend the Verdict and Judgment Record to include the additional offence of Serious Assault which the Applicant was convicted of on 7 February 2014.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to one count of serious assault with circumstances of aggravation and four summary offences – where the applicant had an extensive criminal record including convictions for assault – where at the time that the offences the subject of this application were committed the applicant was on probation and parole – where in relation to the serious assault the applicant was sentenced to 18 months imprisonment with a parole eligibility date set at one-third and 158 days of pre-sentence custody were declared – where in relation to the summary offences a conviction was recorded and the applicant was not further punished – where s 156A Penalties and Sentences Act 1992 (Qld) was not considered – where s 156A requires the applicant serve any further term of imprisonment cumulatively upon any unexpired portion of the earlier sentence – whether the application for leave to appeal should be granted – whether the sentence imposed was manifestly excessive Corrective Services Act 2006 (Qld), s 190(2)(c), s 193(3)(b), s 209 Penalties and Sentences Act 1992 (Qld), s 156A, s 190(2)(c), s 193(3)(b) R v Craigie[2014] QCA 1, cited R v KAC[2010] QCA 39, cited
COUNSEL:	The applicant appeared on his own behalf J A Wooldridge for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent