R v Cai - [2008] QCA 359

SUPREME COURT OF QUEENSLAND

CITATION:

R v CAI [2008] QCA 359

PARTIES:

R
v
CAI
(applicant)

FILE NO/S:

CA No 186 of 2008
DC No 167 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

17 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2008

JUDGES:

Holmes and Muir JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Application for leave to appeal against sentence allowed

2.    Appeal allowed

3.    Sentence the applicant to an intensive correction order in relation to count 5 on the same terms and conditions as those imposed by the sentencing judge for a period of 6 months from today’s date

4.    Record convictions for counts 1-5 but no further penalties for counts 1 to 4

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty and was sentenced to a 12 months intensive correction order for five counts of unlawful assault – where one count involved bodily harm and another count involved bodily harm whilst armed – where the complainant is the applicant’s nine year old son – where the applicant has a minor criminal history – where the applicant has undertaken parenting classes and attended counselling – whether the primary judge took these mitigating factors into account – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty and was sentenced to a 12 months intensive correction order for five counts of unlawful assault – where the sentencing judge imposed only one sentence for all five offences – whether separate sentences for each offence were required – whether the sentencing judge’s discretion miscarried

R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, cited
R v Dolan [2008] QCA 41, cited
R v Walker [2007] QCA 446, considered

COUNSEL:

The applicant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

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

MUIR JA: The applicant seeks leave to appeal against a 12 months intensive correction order imposed after a plea of guilty by the applicant to five counts of unlawful assault, one count of which involved bodily harm and another of which involved bodily harm whilst armed.

The applicant was about 35 years of age at the time of the offences and had a minor criminal history which did not include offences involving physical violence. The complainant is the applicant's nine year old son.

The circumstances underlying each of the counts on the indictment are as follows. The applicant punched the complainant in the head for failing to clean his teeth, count one. The applicant, for an undisclosed…

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 Cai

Details

AGLC: R v CAI [2008] QCA 359
Case: [2008] QCA 359
Decision Date: 17 November 2008

CaseChat Overview and Summary

The case of R v Cai involved the applicant who pleaded guilty to five counts of unlawful assault, one of which involved causing bodily harm to his nine-year-old son and another involving causing bodily harm while armed. The primary judge sentenced the applicant to a 12-month intensive correction order for all five counts. The applicant, who had a minor criminal history, had undertaken parenting classes and attended counselling, sought to appeal the sentence on the basis that it was manifestly excessive and that the sentencing judge had failed to take into account certain mitigating factors. Additionally, the applicant argued that separate sentences for each offence should have been imposed.

The court was required to determine whether the primary judge had erred in finding the sentence to be manifestly excessive and whether the sentencing judge had taken into account the mitigating factors presented. Furthermore, the court needed to decide if separate sentences for each offence should have been imposed as the sentencing judge had only imposed one sentence for all five counts.

In allowing the appeal, the court found that the sentence imposed was manifestly excessive. The court held that the primary judge had not adequately taken into account the mitigating factors, including the applicant’s remorse, his undertaking of parenting classes and counselling, and his minor criminal history. Additionally, the court found that separate sentences for each offence should have been imposed, and the sentencing judge’s discretion had miscarried as a result.

The court ordered that the application for leave to appeal against sentence be allowed, the appeal be allowed, and the applicant be sentenced to an intensive correction order in relation to count 5 for a period of 6 months. The court also ordered that convictions be recorded for counts 1-5, but no further penalties be imposed for counts 1 to 4.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed

2. Appeal allowed

3. Sentence the applicant to an intensive correction order in relation to count 5 on the same terms and conditions as those imposed by the sentencing judge for a period of 6 months from today’s date

4. Record convictions for counts 1-5 but no further penalties for counts 1 to 4

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 CAI [2008] QCA 359
PARTIES:	R v CAI (applicant)
FILE NO/S:	CA No 186 of 2008 DC No 167 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	17 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	17 November 2008
JUDGES:	Holmes and Muir JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence allowed 2. Appeal allowed 3. Sentence the applicant to an intensive correction order in relation to count 5 on the same terms and conditions as those imposed by the sentencing judge for a period of 6 months from today’s date 4. Record convictions for counts 1-5 but no further penalties for counts 1 to 4
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty and was sentenced to a 12 months intensive correction order for five counts of unlawful assault – where one count involved bodily harm and another count involved bodily harm whilst armed – where the complainant is the applicant’s nine year old son – where the applicant has a minor criminal history – where the applicant has undertaken parenting classes and attended counselling – whether the primary judge took these mitigating factors into account – whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty and was sentenced to a 12 months intensive correction order for five counts of unlawful assault – where the sentencing judge imposed only one sentence for all five offences – whether separate sentences for each offence were required – whether the sentencing judge’s discretion miscarried R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, cited R v Dolan [2008] QCA 41, cited R v Walker [2007] QCA 446, considered
COUNSEL:	The applicant appeared on his own behalf R G Martin SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent