R v Cleland - [2018] QCA 273

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cleland [2018] QCA 273

PARTIES:

R
v
CLELAND, Robert Jamie
(applicant)

FILE NO/S:

CA No 240 of 2017
DC No 74 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gladstone – Date of Sentence: 10 March 2017 (Burnett DCJ)

DELIVERED ON:

16 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2018

JUDGES:

Sofronoff P and Gotterson JA and Boddice J

ORDERS:

1. Leave to appeal be granted.

2. The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted by a jury of one count of unlawfully doing grievous bodily harm (count 1) and one count of unlawful wounding (count 2) – where the applicant had pursued the complainant to another property, following an altercation between the complainant and the applicant’s partner – where the applicant and complainant were armed – where the applicant had punched, hit with a hockey stick, and stabbed the complainant – where the applicant was sentenced to six years imprisonment for count 1, and two years imprisonment for count 2 – whether the sentencing judge erred by ascribing a specific intent to count 1, not the subject of the offence for which the applicant was convicted by the jury – where the sentencing judge’s remarks referred to an intention by the applicant to cause grievous bodily harm – where such an intention was not an element of the offence for which the applicant was convicted – whether the sentencing judge’s discretion miscarried by sentencing for a more serious offence than the conviction – where a re-exercise of the discretion does not warrant a lesser sentence

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied
R v Jaramillo[2007] QCA 420, cited
R v Thomason; Ex parte Attorney-General (Qld)[2011] QCA 9, cited

COUNSEL:

P F Richards for the applicant
J D Finch for the respondent

SOLICITORS:

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

SOFRONOFF P: I agree with the reasons of Boddice J and the orders his Honour proposes.
GOTTERSON JA: I agree with the orders proposed by Boddice J and with the reasons given by his Honour.
BODDICE J: On 10 March 2017, a jury found the applicant guilty of one count of unlawfully doing grievous bodily harm and one count of unlawful wounding. The applicant was sentenced to six years imprisonment on the count of unlawfully doing grievous bodily harm and a concurrent two years imprisonment on the count of unlawful wounding. The applicant’s parole eligibility date was set at 9 March 2020.
The applicant seeks leave to appeal the sentence of six years imprisonment on the count of unlawfully doing grievous bodily harm on the ground “the learned sentencing judge erred in ascribing the applicant with a specific intent and sentencing him on…

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 Cleland

Details

AGLC: R v Cleland [2018] QCA 273
Case: [2018] QCA 273
Decision Date: 16 October 2018

CaseChat Overview and Summary

The applicant in this case was convicted of unlawfully doing grievous bodily harm and unlawful wounding. He appealed the six-year sentence imposed for the grievous bodily harm offence on the basis that the sentencing judge had ascribed to him a specific intent that was not an element of the offence. The applicant argued that the sentencing judge had erred in ascribing him with an intent to cause grievous bodily harm, which was not required for the offence of unlawfully doing grievous bodily harm. The legal issue before the court was whether the sentencing judge had erred in ascribing the applicant with a specific intent that was not an element of the offence, and whether this resulted in a miscarriage of the sentencing discretion.

The court held that the sentencing judge had indeed erred in ascribing to the applicant a specific intent that was not an element of the offence. The court noted that the sentencing judge's remarks referred to an intention by the applicant to cause grievous bodily harm, but such an intention was not an element of the offence for which the applicant was convicted by the jury. The court held that the sentencing judge's discretion miscarried by sentencing for a more serious offence than the conviction. However, the court also held that a re-exercise of the discretion did not warrant a lesser sentence. The court concluded that the applicant's sentence was appropriate and dismissed the appeal.

The court granted the applicant leave to appeal but dismissed the appeal. The court found that the sentencing judge had erred in ascribing to the applicant a specific intent that was not an element of the offence, but held that this did not warrant a lesser sentence. The court's decision highlights the importance of ensuring that the sentencing judge applies the correct legal principles when imposing a sentence. The court's decision also underscores the principle that a re-exercise of the sentencing discretion does not necessarily result in a lesser sentence.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be dismissed.

Background

Background to the litigation

The applicant seeks leave to appeal the sentence of six years imprisonment on the count of unlawfully doing grievous bodily harm on the ground “the learned sentencing judge erred in ascribing the applicant with a specific intent and sentencing him on that basis”.Background The applicant was born on 7 May 1970. He was 45 at the time of the offence and 46 at the date of sentence. He has a past criminal history, both in Queensland and in Victoria. His past criminal history includes offences of violence and breaches of court orders.Offences On 24 January 2016, a dispute arose outside a residence near Gladstone. The dispute was between the male complainant and the applicant’s partner. At issue was ownership of a utility the complainant was proposing to tow home to his own residence. During the dispute there was a physical assault by the complainant upon the applicant’s partner. The applicant came to his partner’s aid, armed with a hockey stick. The complainant left the area but was pursued by the applicant. An altercation occurred between the applicant and the complainant. The applicant was armed with a hockey stick and a knife. The complainant was armed with a baton. The applicant approached the complainant, who sought to retreat. The applicant threatened to get and/or kill the complainant. He struck the complainant twice with the hockey stick. On the second occasion the hockey stick was dislodged from the applicant’s hands. At some point, the complainant had his back against a mail box in the front yard of the property. The complainant punched the applicant about four or five times and struck the applicant in the head with the baton about three times. The applicant then stabbed the complainant in the arm and, later, in the abdomen. As the complainant fell to the ground the applicant said “I’m going to kill you”. The complainant suffered a five centimetre stab wound to the front right chest area and a two centimetre deep stab wound to the right arm. He suffered a 50 per cent collapse of the right lung as a consequence of the stab wound to the chest.Sentencing remarks The sentencing judge noted there were a number of aggravating features as well as mitigating features in the applicant’s conduct. The aggravating features were that the applicant intended to both wound and do grievous bodily harm by opening the knife and stabbing the complainant on two occasions; the offending arose out of a sense of vigilantism, in which the applicant took the law into his own hands; the applicant must have felt the knife puncture the complainant’s torso and was callous in leaving the complainant after he had been struck with the knife and the applicant had a significant criminal history. The sentencing judge observed the applicant was fortunate there was not an application for the court to declare him to be convicted of a serious violent offence. The mitigating factors included that the applicant had a lengthy history of employment; was in a long term relationship; had five children and had undertaken rehabilitation courses, including anger management. The applicant was therefore not beyond rehabilitation. He had also cooperated in the course of the investigation.

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 Cleland [2018] QCA 273
PARTIES:	R v CLELAND, Robert Jamie (applicant)
FILE NO/S:	CA No 240 of 2017 DC No 74 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gladstone – Date of Sentence: 10 March 2017 (Burnett DCJ)
DELIVERED ON:	16 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2018
JUDGES:	Sofronoff P and Gotterson JA and Boddice J
ORDERS:	1. Leave to appeal be granted. 2. The appeal be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted by a jury of one count of unlawfully doing grievous bodily harm (count 1) and one count of unlawful wounding (count 2) – where the applicant had pursued the complainant to another property, following an altercation between the complainant and the applicant’s partner – where the applicant and complainant were armed – where the applicant had punched, hit with a hockey stick, and stabbed the complainant – where the applicant was sentenced to six years imprisonment for count 1, and two years imprisonment for count 2 – whether the sentencing judge erred by ascribing a specific intent to count 1, not the subject of the offence for which the applicant was convicted by the jury – where the sentencing judge’s remarks referred to an intention by the applicant to cause grievous bodily harm – where such an intention was not an element of the offence for which the applicant was convicted – whether the sentencing judge’s discretion miscarried by sentencing for a more serious offence than the conviction – where a re-exercise of the discretion does not warrant a lesser sentence Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied R v Jaramillo[2007] QCA 420, cited R v Thomason; Ex parte Attorney-General (Qld)[2011] QCA 9, cited
COUNSEL:	P F Richards for the applicant J D Finch for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent