R v. Campbell - [2009] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:

R v Campbell [2009] QCA 95

PARTIES:

R
v
CAMPBELL, Norman Clive
(applicant)

FILE NO/S:

CA No 54 of 2009
DC No 2852 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2009

JUDGES:

McMurdo P, Keane and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCE PROCEDURE – MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE – TAKING OUTSTANDING OR FURTHER OFFENCES INTO ACCOUNT – applicant charged with child stealing (count 1) and assault occasioning bodily harm in company (count 2) – jury found applicant not guilty of count 1, but guilty on count 2 – applicant sentenced to 12 months imprisonment with parole release date after three months – during sentence judge stated applicant was "deliberately acting in defiance of the law" – whether judge failed to give sufficient weight to acquittal of count 1 when sentencing

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – applicant had to serve three months actual imprisonment – applicant may lose taxi licence due to sentence – whether sentence was manifestly excessive

Criminal Code 1899 (Qld), s 339, s 363(3)
Penalties and Sentencing Act 1992 (Qld), s 9(4)

R v Beer & Massey [2002] QCA 397, cited
R v Lude; R v Love[2007] QCA 319, cited

R v Neivandt [2000] QCA 224, cited

COUNSEL:

P J Davis SC for the appellant
V Loury for the respondent

SOLICITORS:

Ryan and Bosscher Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The applicant was originally charged with child stealing (count 1), and jointly with KLC and SLM, assault occasioning bodily harm in company (count 2). All three accused pleaded not guilty at the commencement of their trial in the District Court at Brisbane on 24 February 2009. The next day the prosecution accepted KLC's and SLM's pleas of guilty to a separate indictment containing a charge of simple assault. The prosecution entered a nolle prosequi on count 2 in respect of the charges brought against KLC and SLM. On 2 March 2009, the jury found the applicant not guilty of count 1, but guilty of count 2. On 11 March 2009, the judge sentenced all three offenders. KLC was fined $500 without conviction. SLM was fined $1,000 without conviction. The applicant was sentenced to 12 months imprisonment with his parole release date fixed at 11 June 2009, that is, after three months. He applies for leave to appeal against his sentence contending that the judge failed to give sufficient weight to the jury's not guilty verdict in relation to count 1. Alternatively, he contends that his sentence is manifestly excessive in the circumstances.

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. Campbell

Details

AGLC: R v Campbell [2009] QCA 95
Case: [2009] QCA 95
Decision Date: 21 April 2009

CaseChat Overview and Summary

The applicant, who was found guilty of assault occasioning bodily harm in company but acquitted of child stealing, appealed against the sentence of 12 months imprisonment with parole release after three months. The applicant contended that the sentencing judge failed to give sufficient weight to the acquittal on the child stealing charge and that the sentence was manifestly excessive. The court was required to determine whether the sentence was appropriate given the applicant's acquittal on one charge and whether the sentence was manifestly excessive.

The court examined the principle that a sentencing judge must consider all material relevant to determining an appropriate sentence, including the nature of the offence and the offender. The court noted that the sentencing judge was entitled to consider the applicant's overall conduct and the seriousness of the offence. The court also considered the potential impact of the sentence on the applicant's employment and future prospects. The court found that the sentence was not manifestly excessive and that the sentencing judge had appropriately considered the applicant's acquittal on the child stealing charge.

The court held that the sentence was not manifestly excessive and that the sentencing judge had appropriately considered the applicant's acquittal on the child stealing charge. The court found that the sentence was within the range of sentences that could be imposed for the offence of assault occasioning bodily harm in company and that the sentencing judge had appropriately considered the applicant's overall conduct and the seriousness of the offence. The court held that the applicant had not demonstrated that the sentence was manifestly excessive or that the sentencing judge had failed to give sufficient weight to the acquittal on the child stealing charge.

The application for leave to appeal against sentence is refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused

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 Campbell [2009] QCA 95
PARTIES:	R v CAMPBELL, Norman Clive (applicant)
FILE NO/S:	CA No 54 of 2009 DC No 2852 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2009
JUDGES:	McMurdo P, Keane and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCE PROCEDURE – MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE – TAKING OUTSTANDING OR FURTHER OFFENCES INTO ACCOUNT – applicant charged with child stealing (count 1) and assault occasioning bodily harm in company (count 2) – jury found applicant not guilty of count 1, but guilty on count 2 – applicant sentenced to 12 months imprisonment with parole release date after three months – during sentence judge stated applicant was "deliberately acting in defiance of the law" – whether judge failed to give sufficient weight to acquittal of count 1 when sentencing CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – applicant had to serve three months actual imprisonment – applicant may lose taxi licence due to sentence – whether sentence was manifestly excessive Criminal Code 1899 (Qld), s 339, s 363(3) Penalties and Sentencing Act 1992 (Qld), s 9(4) R v Beer & Massey [2002] QCA 397, cited R v Lude; R v Love[2007] QCA 319, cited R v Neivandt [2000] QCA 224, cited
COUNSEL:	P J Davis SC for the appellant V Loury for the respondent
SOLICITORS:	Ryan and Bosscher Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent