R v Das - [2009] QCA 74

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAS [2009] QCA 74

PARTIES:

R
v
DAS
(applicant)

FILE NO/S:

CA No 14 of 2009
DC No 3158 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2009

JUDGES:

Chesterman JA, Mullins and Douglas JJ
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 – when refused – generally – where counsel for the applicant at sentencing accepted that the head sentence and parole date were within range – where the applicant complained that his counsel failed to dispute factual matters at the sentence – whether the sentence was excessive

R v Clark (2007) 171 A Crim R 532; [2007] QCA 168, considered
R v Pesnak (2000) 112 A Crim R 410; [2000] QCA 245, considered

COUNSEL:

The applicant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

JACHESTERMAN: I agree that the application for leave to appeal against sentence should be dismissed for the reasons given by Mullins J.

MULLINS J: On 28 November 2008 the applicant pleaded guilty to one count of grievous bodily harm committed between 17 August and 4 September 2006. The complainant was his daughter. The applicant was sentenced on 16 December 2008 to imprisonment for three years. The date for his release on parole was fixed at 15 June 2009 which will be after he has served six months of the term of imprisonment.

The plea of guilty was entered on the day the matter had been listed for the pre-trial recording of the complainant’s evidence. It was not an early plea. The indictment had been presented in August 2007.

The complainant was 11 years old at the time of the relevant events. She and her 13 year old sister lived with the applicant who was their primary carer. The applicant was involved in the promotion and distribution of a product called “Mannatech” which was described as a “therapeutic treatment and dietary supplement”. The applicant used it and had given it to his daughters prior to the offence. The applicant had a genuine belief in the benefits of Mannatech.

The complainant’s teacher noted that the complainant was unwell and had a temperature on 17 and 18 August 2006. A neighbour of the applicant also noticed that the complainant was ill on 17 August 2006. The applicant told the neighbour he was treating the complainant with Mannatech. The applicant and the elder daughter were also ill with flu-like symptoms. By 21 August 2006 the elder daughter had recovered, but 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 Das

Details

AGLC: R v Das [2009] QCA 74
Case: [2009] QCA 74
Decision Date: 3 April 2009

CaseChat Overview and Summary

The case of R v Das involved an appeal against sentence by the convicted party. The applicant contested the severity of the sentence imposed, claiming that his legal representation at the time of sentencing had been deficient. At the original sentencing, counsel had accepted the appropriateness of the head sentence and the parole date, but the applicant now argued that his counsel should have disputed certain factual matters that may have mitigated the sentence. The matter was brought before the court to determine if the sentence was excessive and whether the applicant's counsel's conduct warranted a reduction in sentence.

The primary legal issue before the court was whether the sentence imposed was excessive and whether the applicant's counsel's failure to dispute certain factual matters during sentencing constituted a basis for reducing the sentence. The court needed to consider the nature and severity of the crime, the circumstances of the case, and the standard sentencing practices applicable. Furthermore, the court had to assess the adequacy of the applicant's counsel's performance at sentencing and determine if this warranted any alteration to the sentence.

The court found that the sentence imposed was within the appropriate range for the offence and that the counsel's decision not to dispute certain factual matters did not result in an excessive sentence. The court emphasised that the counsel's conduct was within the scope of reasonable professional judgment and that the sentence, therefore, remained appropriate. Consequently, the court dismissed the application for leave to appeal against the sentence, affirming the original judgment.

No further orders were made by the court, as the application for leave to appeal against the sentence was dismissed. The court found no grounds for altering the sentence or for finding that the counsel's performance had been deficient to the point of affecting the fairness or severity of the sentence.

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

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CITATION:	R v DAS [2009] QCA 74
PARTIES:	R v DAS (applicant)
FILE NO/S:	CA No 14 of 2009 DC No 3158 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	24 March 2009
JUDGES:	Chesterman JA, Mullins and Douglas JJ 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 – when refused – generally – where counsel for the applicant at sentencing accepted that the head sentence and parole date were within range – where the applicant complained that his counsel failed to dispute factual matters at the sentence – whether the sentence was excessive R v Clark (2007) 171 A Crim R 532; [2007] QCA 168, considered R v Pesnak (2000) 112 A Crim R 410; [2000] QCA 245, considered
COUNSEL:	The applicant appeared on his own behalf G P Cash for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent