R v Denham; ex parte A-G (Qld) - [2003] QCA 74

SUPREME COURT OF QUEENSLAND

CITATION:

R v Denham; ex parte A-G (Qld) [2003] QCA 74

PARTIES:

R
v
DENHAM, Shayne Michael
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 376 of 2002
DC No 154 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Sentence by A-G (Qld)

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

28 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2003

JUDGES:

McMurdo P, Jerrard JA and Cullinane J
Separate reasons for judgment of each member of the Court; each concurring as to the order made

ORDER:

Appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent pleaded guilty to assault occasioning bodily harm and breach of domestic violence order – where respondent sentenced to six months imprisonment wholly suspended – whether sentence is manifestly inadequate in that it failed to reflect gravity of the offences – whether learned sentencing judge gave too much weight to mitigating factors

R v Brelsford [1995] QCA 594; CA No 301 of 1995, 14 September 1995, distinguished
R v Shepherd [2001] QCA 224; CA No 76 of 2001, 6 June 2001, distinguished
R v Wentt [1995] QCA 613; CA No 440 of 1995, 6 December 1995, distinguished

Corrective Services Act 2000 (Qld), s 134(1)(a)(ii)
Penalties & Sentences Act 1992 (Qld), s 157(2)

COUNSEL:

D L Meredith for the appellant
A J Moynihan for the respondent

SOLICITORS:

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

McMURDO P: The respondent pleaded guilty on 21 October 2002 in the Mackay District Court to one count of burglary and one count of assault occasioning bodily harm and to an additional summary offence of breach of domestic violence order. All offences occurred on 31 January 2002. He was sentenced on 22 October 2002 to 12 months imprisonment on each of the indictable offences to be served by way of an intensive correction order containing special conditions that he submit to psychiatric and psychological treatment and that he have no contact with the complainant. He was also ordered to pay $1,000 to the complainant within three months, in default one month imprisonment. He was sentenced to six months imprisonment wholly suspended with an operational period of three years on the summary offence.

The appellant, the Attorney-General of Queensland, contends that sentence is manifestly inadequate in that it failed to reflect the gravity of the offence; to sufficiently take into account general deterrence and that the learned sentencing judge gave too much weight to mitigating factors.

The complainant, a 59 year old man, is the father of the respondent's former partner. The respondent and his former partner were in conflict over custody and access to their young child. On the evening of 31 January 2002, the respondent approached the complainant's home. The complainant attempted to lock the door but before he could do so 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.

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Details

Case: [2003] QCA 74
Decision Date: 28 February 2003

CaseChat Overview and Summary

The case involved the Attorney-General of Queensland seeking to appeal the sentence handed down by the court to the respondent, Denham, who had pleaded guilty to charges of assault occasioning bodily harm and breaching a domestic violence order. The respondent was sentenced to six months imprisonment, which was wholly suspended. The central issue for the court was whether the sentence imposed was manifestly inadequate, failing to reflect the gravity of the offences, and whether the sentencing judge had given undue weight to mitigating factors.

The court considered whether the sentence was manifestly inadequate, noting that the sentencing judge had taken into account the mitigating factors presented by the respondent, including his remorse and personal circumstances. The court held that the sentencing judge had exercised their discretion appropriately and had given adequate consideration to both the aggravating and mitigating factors. The court concluded that the sentence was not manifestly inadequate, as it had been tailored to address the specific circumstances of the case and to achieve the purposes of sentencing, including punishment and deterrence.

Consequently, the appeal against the sentence was dismissed. The court found that the sentence was proportionate and appropriate, taking into account the nature of the offences and the mitigating factors presented. The final order was that the appeal against the sentence was refused, and the original sentence would stand.

Orders

Orders of the court

Appeal against sentence refused

Background

Background to the litigation

Full text does not contain this section.

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 Denham; ex parte A-G (Qld) [2003] QCA 74
PARTIES:	R v DENHAM, Shayne Michael (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 376 of 2002 DC No 154 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Sentence by A-G (Qld)
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	28 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2003
JUDGES:	McMurdo P, Jerrard JA and Cullinane J Separate reasons for judgment of each member of the Court; each concurring as to the order made
ORDER:	Appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent pleaded guilty to assault occasioning bodily harm and breach of domestic violence order – where respondent sentenced to six months imprisonment wholly suspended – whether sentence is manifestly inadequate in that it failed to reflect gravity of the offences – whether learned sentencing judge gave too much weight to mitigating factors R v Brelsford [1995] QCA 594; CA No 301 of 1995, 14 September 1995, distinguished R v Shepherd [2001] QCA 224; CA No 76 of 2001, 6 June 2001, distinguished R v Wentt [1995] QCA 613; CA No 440 of 1995, 6 December 1995, distinguished Corrective Services Act 2000 (Qld), s 134(1)(a)(ii) Penalties & Sentences Act 1992 (Qld), s 157(2)
COUNSEL:	D L Meredith for the appellant A J Moynihan for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent