R v Cleland - [2018] QCA 14

[2018] QCA 14

COURT OF APPEAL

HOLMES CJ
GOTTERSON JA
McMURDO JA

CA No 240 of 2017
DC No 74 of 2016

THE QUEEN

CLELAND, Robert Jamie Applicant

BRISBANE

WEDNESDAY, 21 FEBRUARY 2018

JUDGMENT

McMURDO JA: The applicant was charged with one count of doing grievous bodily harm and one count of unlawful wounding. After a trial he was convicted and sentenced. He was ordered to serve a term of six years imprisonment for the grievous bodily harm offence and a concurrent two years for the other offence. His parole eligibility date was set at the halfway mark.

Those sentences were imposed on 10 March 2017. It was not until 13 October 2017 that he sought to challenge them. He applies for an extension of time in which to seek leave to appeal against his sentence. He is not legally represented and his proposed arguments for that appeal are not entirely clear. However, there is a ground of appeal which appears from the judge’s sentencing reasons although it has not been raised by him.

In the altercation in which these offences were committed the applicant stabbed the complainant and on the jury’s verdicts wounded him and caused grievous bodily harm. In his sentencing reasons the judge said that:

“When you took that knife and opened that knife you did intend the effect of you producing the knife, that is, the wound and the GBH.”

A little later the judge said that what he described earlier as the knife and which he also described as the multi-tool was not “an easy thing to manipulate” because the judge himself had “had a go at it”. The judge said that to his mind, this difficulty in the use of the weapon had “clearly expressed your intent to do the harm that you did in respect of both matters”.

On those findings, the applicant had committed the more serious offence of causing grievous bodily harm with intent to do so. That offence under s 317 of the Code carries a maximum penalty of life imprisonment. The offence with which the applicant was charged and of which he was convicted by the jury was an offence under s 320 and carried a maximum penalty of 14 years. It must be said that the prosecutor told the judge that the maximum penalty was 14 years in this case. Nevertheless, the judge has sentenced the applicant on the basis that he was guilty of a more serious offence which had not been considered by the jury. It is sufficient to say that in this respect there was an arguable error in the exercise of the judge’s discretion.

The applicant’s explanation for not challenging these sentences within time is that, he says, his then lawyer told him that he could not appeal “the judge’s decision” and that he first became aware of the possibility of an appeal by talking to another prisoner some months later. His explanation for not applying to this Court before October 2017 is…

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 14
Case: [2018] QCA 14
Decision Date: 21 FEBRUARY 2018

CaseChat Overview and Summary

The case of R v Cleland involved the applicant, Robert Jamie Cleland, who was charged with grievous bodily harm and unlawful wounding. After a trial, he was convicted and sentenced to six years for the grievous bodily harm offence and a concurrent two years for the unlawful wounding offence. The applicant sought an extension of time to appeal against his sentence, which was denied until the Court of Appeal granted an extension to 13 October 2017, and leave to appeal. The applicant had stabbed the complainant during an altercation, causing grievous bodily harm. The sentencing judge found that the applicant had intended to cause grievous bodily harm, which was a more serious offence than the one the jury had convicted him of, carrying a maximum penalty of life imprisonment, as opposed to the 14 years for the offence charged. The sentencing judge's decision to sentence the applicant for the more serious offence of grievous bodily harm with intent, which had not been considered by the jury, could be seen as an arguable error in the exercise of the judge's discretion.
The court considered the applicant's explanation for not challenging these sentences within time, which was that his then lawyer told him that he could not appeal the judge's decision, and that he first became aware of the possibility of an appeal by talking to another prisoner some months later. The court found that the applicant's explanation for not applying to the Court before October 2017 was not particularly compelling, but there was an apparent basis for his proposed appeal, which he need not have been aware of, and which warranted an extension of time and the grant of leave to appeal. The court ordered that the time for making an application for leave to appeal against sentence be extended to 13 October 2017, that leave to appeal be granted, and that the appeal be heard on a date to be fixed. The applicant was informed that the sentencing judge seemed to have sentenced him on the basis that he was guilty of grievous bodily harm with intent to do grievous bodily harm, which was a more serious offence than the one the jury had found him guilty of. The applicant was advised to make an application for Legal Aid to assist him in his appeal.

Orders