R v. Chong; ex parte A-G (Qld) - [2008] QCA 22

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chong; ex parte A-G (Qld) [2008] QCA 22

PARTIES:

R
v
CHONG, Doramie Grace
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 250 of 2007
DC No 132 of 2006
DC No 145 of 2007
DC No 176 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Mornington Island

DELIVERED ON:

22 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2008

JUDGES:

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

ORDER:

The appeal against sentence is dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AGAINST SENTENCE- APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER - APPLICATION TO INCREASE SENTENCE - where Attorney-General appealed against sentence - where respondent was convicted on one count of unlawful wounding and one count of breach of an intensive correction order - where the respondent was sentenced for the unlawful wounding conviction to two and a half years imprisonment with court ordered parole to apply immediately - where for the breach of the intensive correction order the respondent was re-sentenced for the original offences to 15 months probation to be served concurrently with the earlier sentence - whether the sentence imposed for the offence of unlawful wounding, both before or after the re-opening, was manifestly inadequate

SENTENCE-FACTORS TO BE TAKEN INTO ACCOUNT-ABORIGINAL OFFENDERS- where exceptional circumstances include the respondent being an Aboriginal mother from a remote community who would no longer be able to breastfeed her youngest child if imprisoned - whether a person convicted of unlawful wounding must spend time in custody-where hardship caused to an offender's children by imprisonment may be taken into account in sentencing in exceptional circumstances

Crimes Act 1914 (Cth), s 16A(2)(p)
Penalties and Sentences Act 1992 (Qld), s 9(2)(p), s 188(1)(c)

Arnold v Trenerry (1997) 118 NTR 1, cited
R v Bell & Anor [1994] QCA 220, considered
R v Boyle (1987) 34 A Crim R 202, cited
R v D'Arrigo; ex parte A-G (Qld) [2004] QCA 399, considered
R v Edwards (1996) 90 A Crim R 510, cited
R v Friday [2005] QCA 440, considered
R v Le [1996] 2 Qd R 516; [1995] QCA 479, applied
R v MP [2004] QCA 170, considered
R v Shev [2005] QCA 278, considered
R v McDonald [2003] QCA 439, considered
R v Shillingsworth [2002] 1 Qd R 527; [2001] QCA 172, cited
R v Tilley (1991) 53 A Crim R 1, considered
R v Stewart (1994) 72 A Crim R 17, applied

COUNSEL:

M J Copley for the appellant
A W Moynihan SC with J Benjamin for the respondent

SOLICITORS:

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

KEANE JA: I agree with the reasons given by Atkinson J and with the order proposed by her Honour.

FRASER JA: I agree…

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.

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Details

Case: [2008] QCA 22
Decision Date: 22 February 2008

CaseChat Overview and Summary

The Attorney-General for Queensland appealed against the sentence imposed on the respondent who had been convicted of unlawful wounding and breaching an intensive correction order. The respondent had been sentenced to two and a half years imprisonment, with immediate parole to apply, for the unlawful wounding offence and re-sentenced to 15 months probation for the breach of the intensive correction order. The Attorney-General argued that the sentence was manifestly inadequate. The court was required to decide whether the sentence for the offence of unlawful wounding, both before and after the re-sentencing, was manifestly inadequate and whether the court should have taken into account the respondent's status as an Aboriginal mother from a remote community who would no longer be able to breastfeed her youngest child if imprisoned.
The court held that the sentence for unlawful wounding was not manifestly inadequate, having regard to the need to ensure that a person convicted of that offence must spend time in custody. The court considered that the hardship caused to the offender's children by imprisonment could be taken into account in sentencing in exceptional circumstances, but held that this was not such a case. The court dismissed the appeal against sentence.

No further orders were made.

Orders

Orders of the court

The appeal against sentence is dismissed

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 Chong; ex parte A-G (Qld) [2008] QCA 22
PARTIES:	R v CHONG, Doramie Grace (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 250 of 2007 DC No 132 of 2006 DC No 145 of 2007 DC No 176 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Mornington Island
DELIVERED ON:	22 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2008
JUDGES:	Keane and Fraser JJA and Atkinson, J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal against sentence is dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AGAINST SENTENCE- APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER - APPLICATION TO INCREASE SENTENCE - where Attorney-General appealed against sentence - where respondent was convicted on one count of unlawful wounding and one count of breach of an intensive correction order - where the respondent was sentenced for the unlawful wounding conviction to two and a half years imprisonment with court ordered parole to apply immediately - where for the breach of the intensive correction order the respondent was re-sentenced for the original offences to 15 months probation to be served concurrently with the earlier sentence - whether the sentence imposed for the offence of unlawful wounding, both before or after the re-opening, was manifestly inadequate SENTENCE-FACTORS TO BE TAKEN INTO ACCOUNT-ABORIGINAL OFFENDERS- where exceptional circumstances include the respondent being an Aboriginal mother from a remote community who would no longer be able to breastfeed her youngest child if imprisoned - whether a person convicted of unlawful wounding must spend time in custody-where hardship caused to an offender's children by imprisonment may be taken into account in sentencing in exceptional circumstances Crimes Act 1914 (Cth), s 16A(2)(p) Penalties and Sentences Act 1992 (Qld), s 9(2)(p), s 188(1)(c) Arnold v Trenerry (1997) 118 NTR 1, cited R v Bell & Anor [1994] QCA 220, considered R v Boyle (1987) 34 A Crim R 202, cited R v D'Arrigo; ex parte A-G (Qld) [2004] QCA 399, considered R v Edwards (1996) 90 A Crim R 510, cited R v Friday [2005] QCA 440, considered R v Le [1996] 2 Qd R 516; [1995] QCA 479, applied R v MP [2004] QCA 170, considered R v Shev [2005] QCA 278, considered R v McDonald [2003] QCA 439, considered R v Shillingsworth [2002] 1 Qd R 527; [2001] QCA 172, cited R v Tilley (1991) 53 A Crim R 1, considered R v Stewart (1994) 72 A Crim R 17, applied
COUNSEL:	M J Copley for the appellant A W Moynihan SC with J Benjamin for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent