R v Dahlstrom - [2022] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dahlstrom [2022] QCA 139

PARTIES:

R
v
DAHLSTROM, Traydan John
(applicant)

FILE NO/S:

CA No 39 of 2022
DC No 3467 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court Brisbane – Date of Sentence: 7 February 2022 (Porter QC DCJ)

DELIVERED ON:

5 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2022

JUDGES:

Mullins P and Morrison JA and Boddice J

ORDERS:

1. Leave to appeal be granted.

2. The appeal be allowed, to the extent that the applicant’s parole release date be fixed at 6 December 2022.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of burglary by break with violence in company, one count of common assault, two counts of assault occasioning bodily harm whilst armed in company, and one count of wilful damage – where the applicant was sentenced to three years imprisonment on count 1 and lesser concurrent periods of imprisonment in respect of the remaining counts – where the applicant was to be released on parole after serving 15 months imprisonment – where the offending involved serious physical violence – where the applicant had several mitigating factors – where the applicant was on bail for nearly two years with no reoffending – whether the sentencing judge made a material error in referencing the applicant being on bail for a year with no reoffending – whether the sentencing discretion should be re-exercised – whether the Court should fix a parole release date after serving 10 months imprisonment

R v Armstrong, Park, Pullyn[2008] QCA 132, cited
R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, cited

COUNSEL:

J W J Fenton for the applicant
S J Muir for the respondent

SOLICITORS:

Murray Torcetti Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree with Boddice J.
MORRISON JA: I agree with the reasons and the orders proposed by Boddice J.
BODDICE J: On 7 February 2022, the applicant pleaded guilty to one count of burglary by break with violence in company (count 1), one count of common assault (count 2), two counts of assault occasioning bodily harm, whilst armed, in company (counts 3 and 4), and one count of wilful damage (count 5).
On the same date, the applicant was sentenced to imprisonment for three years on count 1 and lesser concurrent periods of imprisonment on the remaining counts. It was ordered that the applicant be released on parole after serving 15 months of that sentence, namely, on 6 May 2023.
The applicant seeks leave to appeal his sentence. Should leave be granted, the applicant relies on two grounds. First, that the requirement he serve 15 months actual imprisonment was manifestly excessive in the circumstances. Second, that the sentencing judge erred in failing to find that the risk of 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 Dahlstrom

Details

AGLC: R v Dahlstrom [2022] QCA 139
Case: [2022] QCA 139
Decision Date: 5 August 2022

CaseChat Overview and Summary

The case of R v Dahlstrom involves an appeal against the sentence imposed by the sentencing judge. The applicant pleaded guilty to a series of offences including burglary by break with violence in company, common assault, assault occasioning bodily harm while armed in company, and wilful damage. The applicant was sentenced to three years imprisonment on the first count and lesser concurrent periods of imprisonment for the remaining counts, with a release on parole after serving 15 months imprisonment. The applicant argues that the requirement to serve 15 months was manifestly excessive and that the sentencing judge erred in failing to find that the risk of the applicant reoffending was low due to a misapprehension of the facts.

The legal issues in this case revolve around whether the sentencing judge made a material error in referencing the applicant's time on bail and whether the sentencing discretion should be re-exercised. Specifically, the applicant contends that the sentencing judge misapprehended the facts by stating that the applicant had been on bail for a year with no reoffending, when in fact the applicant had been on bail for nearly two years without reoffending. The applicant argues that this misapprehension led to an inappropriate exercise of the sentencing discretion.

The Court found that the sentencing judge did indeed misapprehend the facts regarding the duration of the applicant’s time on bail. However, the Court noted that this misapprehension did not significantly impact the overall sentence. Despite this error, the Court concluded that the sentence imposed was not manifestly excessive. Nevertheless, given the mitigating factors and the applicant's conduct while on bail, the Court decided to re-exercise its sentencing discretion. The Court fixed the applicant's parole release date at 6 December 2022, after serving 10 months imprisonment. This adjustment recognises the applicant's good conduct on bail and the lower risk of reoffending.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be allowed, to the extent that the applicant’s parole release date be fixed at 6 December 2022.

Background

Background to the litigation

The applicant seeks leave to appeal his sentence. Should leave be granted, the applicant relies on two grounds. First, that the requirement he serve 15 months actual imprisonment was manifestly excessive in the circumstances. Second, that the sentencing judge erred in failing to find that the risk of the applicant reoffending was low, in circumstances where the sentencing judge “misapprehended the facts, namely, that the Applicant had been on bail without re-offending for almost two years and not one year”.Background The applicant was born in 1997. He was aged 22 at the time of the offences and 24 at sentence. The applicant had a limited criminal history. He had no previous offences for violence and had not previously been sentenced to imprisonment.Offences All of the offences were committed on 19 March 2020. The complainants in the assault counts were a 27 year old female, a 23 year old male and a nine year old child. On 19 March 2020, the applicant, in company with his co-accused and another unknown male, forced his way into a residence. In doing so, they pinned a child against a wall as a consequence of the door being forced open. The applicant then swung a punch towards the male complainant who struck the applicant with a baseball bat the male complainant had retrieved from the garage in an attempt to defend himself. Notwithstanding that blow causing blood to appear on the applicant’s head, the applicant continued to swing punches at the male complainant. Those events represented count 1 on the indictment. Count 2 was committed when the applicant struck the female complainant in the mouth with a closed fist. Count 3 was committed when the applicant and the unknown male continued to assault the male complainant. The applicant grabbed the baseball bat from the male complainant and hit him 10 to 15 times in the head, jaw and eye socket. That attack only stopped when the female complainant’s partner grabbed the baseball bat from the applicant. Count 4 was committed when the male complainant managed to break free and run out the front door. The applicant retrieved the baseball bat and the three offenders gave chase. The applicant punched the male complainant at least five to six times. This attack ceased when a neighbour jumped the fence. Count 5 was committed when the unknown male offender, who had swung a sock filled with a billiard ball on several occasions striking the male complainant, swung the sock several more times hitting walls and causing several holes and dents. The male complainant suffered significant injuries to his face and body. Ambulance officers called to the scene noted that the male complainant was vomiting, had a headache, and complained of neck pain and pain/deformity to his nose as well as pain to the left eyebrow, upper scapula, left arm, left him and knees. The male complainant was taken to hospital for treatment. The female complainant complained that her finger was stiff and sore. She also complained of ongoing pain associated with the injury.Sentencing remarks

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 Dahlstrom [2022] QCA 139
PARTIES:	R v DAHLSTROM, Traydan John (applicant)
FILE NO/S:	CA No 39 of 2022 DC No 3467 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court Brisbane – Date of Sentence: 7 February 2022 (Porter QC DCJ)
DELIVERED ON:	5 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	13 July 2022
JUDGES:	Mullins P and Morrison JA and Boddice J
ORDERS:	1. Leave to appeal be granted. 2. The appeal be allowed, to the extent that the applicant’s parole release date be fixed at 6 December 2022.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of burglary by break with violence in company, one count of common assault, two counts of assault occasioning bodily harm whilst armed in company, and one count of wilful damage – where the applicant was sentenced to three years imprisonment on count 1 and lesser concurrent periods of imprisonment in respect of the remaining counts – where the applicant was to be released on parole after serving 15 months imprisonment – where the offending involved serious physical violence – where the applicant had several mitigating factors – where the applicant was on bail for nearly two years with no reoffending – whether the sentencing judge made a material error in referencing the applicant being on bail for a year with no reoffending – whether the sentencing discretion should be re-exercised – whether the Court should fix a parole release date after serving 10 months imprisonment R v Armstrong, Park, Pullyn[2008] QCA 132, cited R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, cited
COUNSEL:	J W J Fenton for the applicant S J Muir for the respondent
SOLICITORS:	Murray Torcetti Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent