R v Clark - [2008] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clark [2008] QCA 51

PARTIES:

R
v
CLARK, Sydney James
(applicant)

FILE NO/S:

CA No 238 of 2007
DC No 105 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

7 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2008

JUDGES:

McMurdo P, Muir JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The application for leave to appeal against sentence is refused

2. A warrant should issue for the apprehension of the applicant to lie in the Registry for seven days

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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant convicted of unlawful wounding – where applicant sentenced to 18 months imprisonment suspended after four months – whether period of suspension such as to make sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(p)

R v Bell; ex parte A-G (Qld) [1994] QCA 220; CA No 116 of 1994, 20 June 1994, considered
R v Chong; ex parte A-G (Qld) [2008] QCA 22; CA No 250 of 2007, 22 February 2008, considered
R v Kidner [2005] QCA 430; CA No 265 of 2005, 23 November 2005, considered
R v Kimmins [2006] QCA 438; CA No 224 of 2006, 3 November 2006, considered
R v Roberts [2002] QCA 105; CA No 367 of 2001, 20 March 2002, considered

COUNSEL:

B W Farr SC for the applicant
M J Copley for the respondent

SOLICITORS:

Rostron Carlyle for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE AJA: This is an application for leave to appeal against a sentence of 18 months' imprisonment suspended after four months for unlawful wounding. The applicant was convicted after a five day trial. He appealed against conviction but that was abandoned. It is conceded that the 18 months' head sentence is not manifestly excessive. The application is concerned only with the period of suspension.

The applicant was admitted to bail pending appeal about three weeks after he went into custody. It was contended that suspension after two months instead of four months was appropriate.

The applicant was 55 at the time of the offence. The complainant was 31. The applicant conducted a business in one of several industrial sheds at Slacks Creek. The complainant was employed as a furniture removalist for a business that operated from a nearby shed. There had been friction over parking issues in the area although not necessarily between the complainant and the applicant personally.

Shortly before the offence was committed the complainant had parked his van and gone to get instructions about his tasks for the day. When he came back he found a…

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 Clark

Details

AGLC: R v Clark [2008] QCA 51
Case: [2008] QCA 51
Decision Date: 7 March 2008

CaseChat Overview and Summary

The case of R v Clark involves an appeal against a sentence handed down to the applicant following their conviction for unlawful wounding. The applicant was sentenced to 18 months imprisonment, which was suspended after a period of four months. The applicant sought leave to appeal against the sentence, arguing that the period of suspension was such that it made the sentence manifestly excessive. The matter was heard in the Court of Criminal Appeal, which was required to consider the legal issues surrounding the imposition of the sentence and whether it warranted any alteration.

The court considered whether the sentence was manifestly excessive, particularly in light of the period of suspension, and whether the sentence was proportionate to the offence committed. The court examined the nature of the offence and the circumstances surrounding it, as well as the applicant's criminal history and other relevant factors. The court also considered the principles of sentencing and the role of the appellate court in reviewing sentences.

The Court of Criminal Appeal held that the sentence was not manifestly excessive and that the period of suspension was not such as to render the sentence disproportionate. The court found that the sentence was appropriate in the circumstances and that there were no grounds for altering it. The court also held that the applicant's application for leave to appeal against the sentence was without merit and that there were no grounds for granting leave to appeal. The court refused the application for leave to appeal and ordered that a warrant should issue for the apprehension of the applicant to lie in the Registry for seven days.

In summary, the Court of Criminal Appeal dismissed the applicant's appeal against sentence and held that the sentence was appropriate in the circumstances. The court refused the applicant's application for leave to appeal and ordered that a warrant should issue for the apprehension of the applicant.

Orders

Orders of the court

1. The application for leave to appeal against sentence is refused

2. A warrant should issue for the apprehension of the applicant to lie in the Registry for seven days

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Clark [2008] QCA 51
PARTIES:	R v CLARK, Sydney James (applicant)
FILE NO/S:	CA No 238 of 2007 DC No 105 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	7 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2008
JUDGES:	McMurdo P, Muir JA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The application for leave to appeal against sentence is refused 2. A warrant should issue for the apprehension of the applicant to lie in the Registry for seven days
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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant convicted of unlawful wounding – where applicant sentenced to 18 months imprisonment suspended after four months – whether period of suspension such as to make sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(p) R v Bell; ex parte A-G (Qld) [1994] QCA 220; CA No 116 of 1994, 20 June 1994, considered R v Chong; ex parte A-G (Qld) [2008] QCA 22; CA No 250 of 2007, 22 February 2008, considered R v Kidner [2005] QCA 430; CA No 265 of 2005, 23 November 2005, considered R v Kimmins [2006] QCA 438; CA No 224 of 2006, 3 November 2006, considered R v Roberts [2002] QCA 105; CA No 367 of 2001, 20 March 2002, considered
COUNSEL:	B W Farr SC for the applicant M J Copley for the respondent
SOLICITORS:	Rostron Carlyle for the applicant Director of Public Prosecutions (Queensland) for the respondent