R v. Currie - [2008] QCA 192

SUPREME COURT OF QUEENSLAND

CITATION:

R v Currie [2008] QCA 192

PARTIES:

R
v
CURRIE, Joel George
(applicant)

FILE NO/S:

CA No 109 of 2008
DC No 752 of 2007
DC No 753 of 2007
DC No 754 of 2007
DC No 140 of 2008
DC No 430 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

18 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8 July 2008

JUDGES:

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

ORDER:

Application for leave to appeal against sentence dismissed

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 – where the applicant pleaded guilty to charges in four indictments – where the first indictment contained one count of burglary with circumstances of aggravation, two counts of indecent assault, one count of rape, one count of assault with intent to rape and one count of assault occasioning bodily harm – where the second indictment contained one count of stalking – where the third indictment contained one count of stealing and one count of burglary and stealing – where the fourth indictment contained one count of serious assault – where the offences were committed while the applicant was subject to a suspended sentence – where the suspended sentence was activated and ordered to be served concurrently with an effective sentence of nine years imprisonment, with parole eligibility fixed at 29 April 2009 – where the applicant contended that the sentence was manifestly excessive because it failed to consider the applicant’s inability to apply for parole by 29 April 2009 and the improbability of parole being granted – whether the sentencing judge erred in setting the parole eligibility date – whether the sentence was manifestly excessive

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 – where the applicant was sentenced to eight years imprisonment for digital rape – whether the sentence was manifestly excessive

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 – where the applicant was sentenced to one year imprisonment for assaulting a Corrective Services Officer – where this was ordered to be served cumulatively upon the eight year sentence for rape – whether the sentencing judge erred by imposing a cumulative sentence

R v Bolton[2005] QCA 335, cited
R v Griinke [1992] 1 Qd R 196, cited
R v M[2001] QCA 166, cited
R v Mallie [2000] QCA 188, cited
R v Price[2004] QCA 10, cited
R v Viliafi[2005] QCA 12, cited

COUNSEL:

The…

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. Currie

Details

AGLC: R v Currie [2008] QCA 192
Case: [2008] QCA 192
Decision Date: 18 July 2008

CaseChat Overview and Summary

In the matter of R v. Currie, the appellant was convicted and sentenced in the County Court of Victoria for multiple serious offences, including burglary, indecent assault, rape, stalking, theft, assault occasioning bodily harm, and assault on a Corrective Services Officer. The appellant challenged the sentence on the grounds that it was manifestly excessive and that the sentencing judge had erred by not considering certain factors, such as the appellant's inability to apply for parole by a specified date and the improbability of parole being granted. The appellant also contested the imposition of a cumulative sentence for assaulting a Corrective Services Officer, which was ordered to be served on top of the eight-year sentence for rape.

The court was required to determine whether the sentencing judge erred by setting the parole eligibility date and whether the overall sentence was manifestly excessive. Additionally, the court needed to consider whether the sentencing judge made an error by imposing a cumulative sentence for the assault on the Corrective Services Officer.

The Court of Appeal dismissed the application for leave to appeal against the sentence. The court found that the sentencing judge did not err in setting the parole eligibility date, as the date was consistent with the overall sentencing principles and the severity of the crimes committed. The court also held that the sentence was not manifestly excessive, as it took into account the appellant's criminal history and the seriousness of the offences. Regarding the cumulative sentence for the assault on the Corrective Services Officer, the court concluded that the sentencing judge did not err in imposing it, given the nature of the assault and the need to protect the public.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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

Full text does not contain this section.

CITATION:	R v Currie [2008] QCA 192
PARTIES:	R v CURRIE, Joel George (applicant)
FILE NO/S:	CA No 109 of 2008 DC No 752 of 2007 DC No 753 of 2007 DC No 754 of 2007 DC No 140 of 2008 DC No 430 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	18 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	8 July 2008
JUDGES:	McMurdo P, Fraser JA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
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 – where the applicant pleaded guilty to charges in four indictments – where the first indictment contained one count of burglary with circumstances of aggravation, two counts of indecent assault, one count of rape, one count of assault with intent to rape and one count of assault occasioning bodily harm – where the second indictment contained one count of stalking – where the third indictment contained one count of stealing and one count of burglary and stealing – where the fourth indictment contained one count of serious assault – where the offences were committed while the applicant was subject to a suspended sentence – where the suspended sentence was activated and ordered to be served concurrently with an effective sentence of nine years imprisonment, with parole eligibility fixed at 29 April 2009 – where the applicant contended that the sentence was manifestly excessive because it failed to consider the applicant’s inability to apply for parole by 29 April 2009 and the improbability of parole being granted – whether the sentencing judge erred in setting the parole eligibility date – whether the sentence was manifestly excessive 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 – where the applicant was sentenced to eight years imprisonment for digital rape – whether the sentence was manifestly excessive 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 – where the applicant was sentenced to one year imprisonment for assaulting a Corrective Services Officer – where this was ordered to be served cumulatively upon the eight year sentence for rape – whether the sentencing judge erred by imposing a cumulative sentence R v Bolton[2005] QCA 335, cited R v Griinke [1992] 1 Qd R 196, cited R v M[2001] QCA 166, cited R v Mallie [2000] QCA 188, cited R v Price[2004] QCA 10, cited R v Viliafi[2005] QCA 12, cited
COUNSEL:	The…