R v Chitty; Ex parte - [2021] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chitty; Ex parte Attorney-General (Qld) [2021] QCA 2

PARTIES:

R
v
CHITTY, Luke Daniel
(respondent)
EX PARTE
ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 183 of 2020
DC No 2719 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 12 August 2020 (Morzone QC DCJ)

DELIVERED ON:

19 January 2021

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2020

JUDGES:

Morrison JA and Boddice and Henry JJ

ORDERS:

1.   The appeal be allowed.

2.   The sentence below be set aside, to the extent that the respondent’s parole release date be fixed at 19 September 2021.

3.   The sentence below otherwise be confirmed.

4.   Order that a Warrant issue for the arrest of the respondent, to lie in the Registry for seven days.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of grievous bodily harm – where the respondent was sentenced to two and a half years’ imprisonment, with an immediate parole release date – where the Attorney-General appeals the sentence on the ground that it was manifestly inadequate given the respondent was not required to immediately serve actual imprisonment – whether the sentence imposed failed to address the relevant sentencing principles of deterrence, denunciation and the protection of the community – whether the sentence was manifestly inadequate

R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited
R v Bryan; Ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited
R v Ford[2011] QCA 208, cited
R v Iese[2017] QCA 68, cited
R v Levy & Drobney; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 296; [2014] QCA 205, cited
R v Tupou; Ex parte Attorney-General (Qld)[2005] QCA 179, cited

COUNSEL:

C W Heaton QC for the appellant
M J Copley QC for the respondent

SOLICITORS:

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

MORRISON JA: I have read the reasons of Boddice J and agree with those reasons and the orders his Honour proposes.
BODDICE J: On 12 August 2020, the respondent was convicted, on his own plea of guilty, of one offence of grievous bodily harm. He was sentenced to two and half years' imprisonment, with an immediate parole release date of 12 August 2020.
The Attorney-General appeals that sentence on the ground it was manifestly inadequate. The inadequacy is said to arise as a consequence of the imposition of a sentence which did not require the respondent to immediately serve actual imprisonment.
At issue, is whether the sentence imposed failed to address the relevant sentencing principles of deterrence, denunciation and the protection of the community and, as a consequence, was manifestly inadequate.
Background
The respondent was born…

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 Chitty; Ex parte

Details

AGLC: R v Chitty; Ex parte [2021] QCA 2
Case: [2021] QCA 2
Decision Date: 19 January 2021

CaseChat Overview and Summary

In the case of R v Chitty; Ex parte, the respondent had pleaded guilty to one count of grievous bodily harm. The Attorney-General appealed the sentence of two and a half years’ imprisonment with an immediate parole release date. The appeal raised the issue of whether the sentence was manifestly inadequate considering the relevant sentencing principles of deterrence, denunciation, and the protection of the community.

The court examined the circumstances of the offence, the respondent's criminal history, and the principles of sentencing. The respondent had a prior conviction for affray at the age of 18, which resulted in probation and community service. The grievous bodily harm offence involved a confrontational situation in a restaurant, but there was no indication of a hostile confrontation or serious physical interaction between the parties. The court considered the sentencing principles, including the need to deter the respondent and others from committing similar offences, to denounce the conduct, and to protect the community.

The court found that the sentence imposed did not adequately address the relevant sentencing principles, particularly in terms of deterrence and denunciation. The immediate parole release date did not sufficiently reflect the seriousness of the offence or the need to protect the community. Consequently, the court determined that the sentence was manifestly inadequate. The appeal was allowed, and the sentence was set aside with respect to the parole release date, which was fixed at 19 September 2021. The sentence was otherwise confirmed, and a warrant for the respondent's arrest was issued.

Orders

Orders of the court

1. The appeal be allowed.

2. The sentence below be set aside, to the extent that the respondent’s parole release date be fixed at 19 September 2021.

3. The sentence below otherwise be confirmed.

4. Order that a Warrant issue for the arrest of the respondent, to lie in the Registry for seven days.

Background

Background to the litigation

At issue, is whether the sentence imposed failed to address the relevant sentencing principles of deterrence, denunciation and the protection of the community and, as a consequence, was manifestly inadequate.Background The respondent was born on 5 October 1993. He was aged 26 at sentence and 25 at the time of the commission of the offence. The respondent had a criminal history containing one entry, being a conviction in the District Court of Brisbane on 11 February 2013 of an offence of affray, committed on 8 January 2012. On that occasion, the respondent was placed on probation for 12 months and ordered to perform community service for 120 hours, within a period of 12 months. No conviction was recorded. The respondent was 18 years of age at the time of the commission of the offence of affray. The respondent pleaded guilty to that offence. Relevantly, the circumstances of that offence were that, at a time when a male person was engaged in a heated exchange with the respondent’s friend, the respondent punched that other man who fell to the ground. That man suffered facial injuries and a broken jaw, which required surgery.Offence The offence of grievous bodily harm was committed on 6 August 2019. The complainant, a 39 year old male, had been drinking with friends at a venue in Cairns earlier that evening. The respondent had also been drinking in the city, with a childhood friend. Shortly after 11 pm, the respondent and his friend entered a McDonald’s restaurant and purchased food. Whilst they were eating that food, the complainant entered the restaurant. He was unknown to the respondent. The complainant ordered a meal and waited near the counter. A short time later, the respondent went to order more food. He also waited near the counter. CCTV footage, captured by the internal cameras within the restaurant, recorded that, whilst awaiting their food, the complainant and the respondent exchanged brief glances. After a short time, the respondent was joined at the counter by his friend. The complainant collected his meal and approached the respondent as he left the restaurant. The complainant moved his head close towards the respondent’s face. There was no physical contact. This conduct was accepted by the sentencing Judge as confrontational, initiated by the complainant. CCTV footage depicted the respondent as smiling towards the complainant as he approached and as he moved away. There was no indication of a hostile confrontation. There was, however, a verbal interaction at this time. At one point in this interchange, the complainant put his hand on the respondent’s side. The respondent gently pushed him away. There was another physical connection, which again resulted in the respondent pushing the complainant away. CCTV footage depicts continuing conversation with the respondent pointing towards the corners of the store. The sentencing Judge accepted the respondent was, at that stage, pointing to the cameras in the restaurant, in response to what was said to be the complainant’s suggestion they should fight outside of the restaurant.

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 Chitty; Ex parte Attorney-General (Qld) [2021] QCA 2
PARTIES:	R v CHITTY, Luke Daniel (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 183 of 2020 DC No 2719 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 12 August 2020 (Morzone QC DCJ)
DELIVERED ON:	19 January 2021
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2020
JUDGES:	Morrison JA and Boddice and Henry JJ
ORDERS:	1. The appeal be allowed. 2. The sentence below be set aside, to the extent that the respondent’s parole release date be fixed at 19 September 2021. 3. The sentence below otherwise be confirmed. 4. Order that a Warrant issue for the arrest of the respondent, to lie in the Registry for seven days.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of grievous bodily harm – where the respondent was sentenced to two and a half years’ imprisonment, with an immediate parole release date – where the Attorney-General appeals the sentence on the ground that it was manifestly inadequate given the respondent was not required to immediately serve actual imprisonment – whether the sentence imposed failed to address the relevant sentencing principles of deterrence, denunciation and the protection of the community – whether the sentence was manifestly inadequate R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Bryan; Ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited R v Ford[2011] QCA 208, cited R v Iese[2017] QCA 68, cited R v Levy & Drobney; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 296; [2014] QCA 205, cited R v Tupou; Ex parte Attorney-General (Qld)[2005] QCA 179, cited
COUNSEL:	C W Heaton QC for the appellant M J Copley QC for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent