R v Cherrie - [2006] QCA 491

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cherrie [2006] QCA 491

PARTIES:

R
v
CHERRIE, Adam Robert
(applicant)

FILE NO/S:

CA No 256 of 2006
DC No 3567 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2006

JUDGES:

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

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY- where the applicant pleaded guilty to two counts of assault occasioning bodily harm in company, one count of common assault and one count of wilful damage and was sentenced to two years imprisonment, suspended after six months for an operational period of two years – the applicant possessed a relevant criminal history – whether the sentence was manifestly excessive in all the circumstances

Lowe v The Queen (1984) 154 CLR 606, cited

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

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

WILLIAMS JA: On 22 August 2006 the applicant pleaded guilty to two counts of assault occasioning bodily harm in company, one count of common assault and one count of wilful damage. He was sentenced on that date for the two offences of assault occasioning bodily harm in company to two years imprisonment, suspended after six months for a period of two years. Shorter, concurrent sentences were imposed with respect to the other offences. He seeks leave to appeal against the head sentence on the ground that in the circumstances it was manifestly excessive.

The charges arose out of events which occurred on 12 February 2005. A few months prior to that, the first complainant had ended his relationship with a woman who then began a relationship with the applicant's co-offender, Wells. When the relationship ended, the woman kept possession of a motor vehicle owned by the first complainant. His request for the return of the vehicle was not complied with. The first complainant became aware on 12 February 2005 that the vehicle was at a shopping centre. He went with a friend (who was the complainant to the second count of assault occasioning bodily harm) to the shopping centre and retrieved the vehicle. He took it back to his home where he put it up on blocks and locked it in the garage.

Later that day the applicant, Wells, and a third man (who has remained unidentified) went to the first complainant's house. They did not leave when asked to do so. After some conversation the applicant punched the first complainant in the head, and Wells also punched the first complainant…

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 Cherrie

Details

AGLC: R v Cherrie [2006] QCA 491
Case: [2006] QCA 491
Decision Date: 24 November 2006

CaseChat Overview and Summary

The appeal arose from a conviction for two counts of assault occasioning bodily harm in company, one count of common assault, and one count of wilful damage. The applicant was sentenced to two years imprisonment, suspended after six months, for an operational period of two years. The applicant, who had a relevant criminal history, sought leave to appeal against the severity of the sentence. The case was heard by the Supreme Court of Victoria.

The court was required to determine whether the sentence imposed was manifestly excessive in all the circumstances. This involved assessing the nature and severity of the offences, the applicant's criminal history, and the principles of sentencing relevant to the case. The court had to consider whether the sentence was so disproportionate to the offence and the offender that it would be just and appropriate to reduce it.

The court held that the sentence was not manifestly excessive. The offences were serious, particularly given the number of victims and the nature of the harm caused. The court considered the applicant's criminal history, which included previous convictions for violent offences, and determined that it warranted a robust response. The court also noted the importance of deterrence and denunciation in sentencing. Given these factors, the court concluded that the sentence was proportionate and appropriate in the circumstances.

The application for leave to appeal against the sentence was refused. The court found that the sentence was not manifestly excessive and that the applicant had not demonstrated that the sentence imposed was an error of law or a significant departure from the principles of sentencing.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Cherrie [2006] QCA 491
PARTIES:	R v CHERRIE, Adam Robert (applicant)
FILE NO/S:	CA No 256 of 2006 DC No 3567 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2006
JUDGES:	Williams and Keane JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY- where the applicant pleaded guilty to two counts of assault occasioning bodily harm in company, one count of common assault and one count of wilful damage and was sentenced to two years imprisonment, suspended after six months for an operational period of two years – the applicant possessed a relevant criminal history – whether the sentence was manifestly excessive in all the circumstances Lowe v The Queen (1984) 154 CLR 606, cited
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent