R v Colenso - [2012] QCA 216

SUPREME COURT OF QUEENSLAND

CITATION:

R v Colenso [2012] QCA 216

PARTIES:

R
v
COLENSO, Jonathan Ian Frederick
(applicant)

FILE NO/S:

CA No 358 of 2011
DC No 197 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

21 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2012

JUDGES:

Muir and White JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for leave to appeal be granted;
2. The appeal be allowed;

3. The sentence imposed in respect of count 1 be set aside and a sentence of three years imprisonment with a parole release date fixed at 5 June 2013 (after the applicant has served 18 months) be substituted therefor; and

4. The sentence imposed in respect of count 2 be set aside and a sentence of six months imprisonment be substituted.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant convicted of unlawful wounding and common assault – where applicant sentenced to four and a half years imprisonment for wounding and three years imprisonment for assault – where sentence imposed with respect to assault was the maximum sentence prescribed for that offence – where parole eligibility was fixed at 5 March 2014 – where applicant had a limited but relevant criminal history – where applicant ‘glassed’ and punched the complainant in a nightclub – where complainant was left with facial scarring – whether sentence manifestly excessive

R v Bailey[2009] QCA 251, considered
R v Berryman (2005) 159 A Crim R 65; [2005] QCA 471, considered
R v Fookes [1997] QCA 39, considered
R v Hallett[1997] QCA 222, considered
R v Rehavi [1999] 2 Qd R 640; [1998] QCA 157, considered
R v Sokol[2011] QCA 20, cited
R v Toohey[2001] QCA 149, considered
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, considered

COUNSEL:

R A East for the applicant
B J Merrin for the respondent

SOLICITORS:

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

MUIR JA: The applicant was convicted on 5 December 2011, after a trial, of unlawful wounding (count 1) and common assault (count 2). He was sentenced to four and a half years imprisonment for the former and three years imprisonment for the latter. A parole eligibility date of 5 March 2014 was fixed. The applicant applies for leave to appeal on the ground that the sentence was manifestly excessive.

The applicant was 23 years of age at the time of his offending and 26 at the time of trial. He had a good work history and a limited, but relevant criminal history. In 2005 the applicant, then aged 18, pleaded guilty to one count of wilful damage to a motor vehicle, one count of grievous bodily harm…

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 Colenso

Details

AGLC: R v Colenso [2012] QCA 216
Case: [2012] QCA 216
Decision Date: 21 August 2012

CaseChat Overview and Summary

In the matter of R v Colenso, the High Court was tasked with assessing the fairness of a sentence imposed on the applicant who was convicted of unlawful wounding and common assault. The applicant, having been found guilty of attacking a complainant in a nightclub, was sentenced to four and a half years imprisonment for the unlawful wounding and three years for the common assault. The sentence for the assault was the maximum permissible under the law, and parole eligibility was set for 5 March 2014. The applicant's criminal history was limited but relevant, and the attack left the complainant with significant facial scarring. The central issue before the court was whether the sentence was manifestly excessive.

The court was required to determine if the sentence imposed was manifestly excessive, considering the totality of the circumstances, including the nature of the offences, the applicant's criminal history, and the need for the sentence to reflect the seriousness of the crimes. The court was mindful of the principle that while the original sentencing judge has considerable discretion, the appellate court has the authority to intervene if the sentence is palpably outside the range of acceptable options. The court was also required to consider the impact of the sentence on the applicant and whether the punishment met the objectives of deterrence, retribution, and rehabilitation.

In delivering its judgment, the court found that the sentence was indeed manifestly excessive, particularly in light of the maximum penalty for the assault being imposed. The court noted that the original sentence did not adequately reflect the relative seriousness of the two offences, with the assault sentence being disproportionate to the wounding. Additionally, the court considered the need for the sentence to adequately reflect the seriousness of the crimes and to achieve the purposes of punishment. Consequently, the court granted leave to appeal, allowed the appeal, and varied the sentences imposed. The sentence for the unlawful wounding was reduced to three years with parole eligibility set at 5 June 2013, and the sentence for the assault was reduced to six months imprisonment.

Orders

Orders of the court

1. The application for leave to appeal be granted;

2. The appeal be allowed;

3. The sentence imposed in respect of count 1 be set aside and a sentence of three years imprisonment with a parole release date fixed at 5 June 2013 (after the applicant has served 18 months) be substituted therefor; and

4. The sentence imposed in respect of count 2 be set aside and a sentence of six months imprisonment be substituted.

Background

Background to the litigation

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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 Colenso [2012] QCA 216
PARTIES:	R v COLENSO, Jonathan Ian Frederick (applicant)
FILE NO/S:	CA No 358 of 2011 DC No 197 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	21 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2012
JUDGES:	Muir and White JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal be granted; 2. The appeal be allowed; 3. The sentence imposed in respect of count 1 be set aside and a sentence of three years imprisonment with a parole release date fixed at 5 June 2013 (after the applicant has served 18 months) be substituted therefor; and 4. The sentence imposed in respect of count 2 be set aside and a sentence of six months imprisonment be substituted.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant convicted of unlawful wounding and common assault – where applicant sentenced to four and a half years imprisonment for wounding and three years imprisonment for assault – where sentence imposed with respect to assault was the maximum sentence prescribed for that offence – where parole eligibility was fixed at 5 March 2014 – where applicant had a limited but relevant criminal history – where applicant ‘glassed’ and punched the complainant in a nightclub – where complainant was left with facial scarring – whether sentence manifestly excessive R v Bailey[2009] QCA 251, considered R v Berryman (2005) 159 A Crim R 65; [2005] QCA 471, considered R v Fookes [1997] QCA 39, considered R v Hallett[1997] QCA 222, considered R v Rehavi [1999] 2 Qd R 640; [1998] QCA 157, considered R v Sokol[2011] QCA 20, cited R v Toohey[2001] QCA 149, considered Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, considered
COUNSEL:	R A East for the applicant B J Merrin for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent