R v Denyer - [2009] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:

R v Denyer [2009] QCA 53

PARTIES:

R
v
DENYER, Joel Matthew
(applicant)

FILE NO/S:

CA No 330 of 2008
DC No 2785 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2009

JUDGES:

Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence refused

2. A warrant to issue for the apprehension of the applicant to lie in the registry for seven days

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where applicant pleaded guilty to unlawful wounding – where applicant sentenced to 18 months imprisonment – where applicant alleges sentencing judge fettered sentencing discretion by regarding custodial sentence as mandatory – where applicant alleges sentencing judge failed to have regard to relevant considerations under the Penalties and Sentences Act 1992 (Qld) – whether sentencing judge acted on wrong principle

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant alleges sentence manifestly excessive insofar as sentencing judge allegedly failed to have regard to applicant's substantial rehabilitative steps – where applicant alleges court not justified in returning applicant to prison in light of time served – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(a)(i), s 9(3),
s 9(4), s 9(4)(g), s 9(4)(j)

R v Bennett [2007] QCA 324, cited
R v Hays; ex parte A-G [1999] QCA 443, considered
R v Neivandt [2000] QCA 224, considered

COUNSEL:

P J Callaghan SC, with P Morreau, for the applicant
P F Rutledge for the respondent

SOLICITORS:

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

KEANE JA: On 1 December 2008 the applicant was convicted on his own plea of one count of unlawful wounding. He was sentenced to 18 months imprisonment with a fixed parole release date of 1 March 2009. The learned sentencing judge declared 19 days pre-sentence custody to be time served in respect of the sentence.

The applicant seeks leave to appeal against his sentence on the following grounds:

"1.The sentencing judge erred in the application of relevant provisions of the Penalties and Sentences Act 1992 (Qld); and
2. The sentence imposed was manifestly excessive."

The circumstances of the offence

On 23 December 2007 the applicant struck the complainant, a young man of the same age, on the face with a beer bottle. The bottle shattered upon impact injuring the complainant's left eye, causing a laceration to the face which required six sutures and fracturing the zygomatic bone. The complainant suffered from blurred vision and headaches for a week. He also suffered an ear infection. He has been left with some scarring.

Before…

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 Denyer

Details

AGLC: R v Denyer [2009] QCA 53
Case: [2009] QCA 53
Decision Date: 13 March 2009

CaseChat Overview and Summary

The case before the court was an appeal against sentence by an applicant who had pleaded guilty to the offence of unlawful wounding. The applicant was sentenced to 18 months imprisonment. The applicant alleged that the sentencing judge had acted on the wrong principle by treating a custodial sentence as mandatory, and that the judge had failed to take into account relevant considerations under the Penalties and Sentences Act 1992 (Qld). The applicant also argued that the sentence was manifestly excessive, as the judge had allegedly not considered the applicant's substantial rehabilitative steps, and that the court was not justified in returning the applicant to prison given the time already served.

The legal issues before the court were whether the sentencing judge had acted on the wrong principle and failed to consider relevant factors, and whether the sentence was manifestly excessive. The court considered the arguments presented by the applicant and examined the sentencing remarks of the judge. The court found that the sentencing judge had not acted on the wrong principle and had appropriately considered the relevant factors under the Penalties and Sentences Act 1992 (Qld). The court also found that the sentence was not manifestly excessive, as the judge had considered the applicant's rehabilitative steps and the time already served by the applicant.

In light of the above, the court refused the applicant's application for leave to appeal against sentence. The court issued a warrant for the apprehension of the applicant to lie in the registry for seven days, pending the applicant's surrender to commence the sentence. The court's decision was based on a careful consideration of the sentencing remarks of the judge and the arguments presented by the applicant. The court found that the sentence was appropriate and not manifestly excessive, and that the sentencing judge had not acted on the wrong principle.

Orders

Orders of the court

1. Application for leave to appeal against sentence refused

2. A warrant to issue for the apprehension of the applicant to lie in the registry for seven days

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 Denyer [2009] QCA 53
PARTIES:	R v DENYER, Joel Matthew (applicant)
FILE NO/S:	CA No 330 of 2008 DC No 2785 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2009
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence refused 2. A warrant to issue for the apprehension of the applicant to lie in the registry for seven days
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where applicant pleaded guilty to unlawful wounding – where applicant sentenced to 18 months imprisonment – where applicant alleges sentencing judge fettered sentencing discretion by regarding custodial sentence as mandatory – where applicant alleges sentencing judge failed to have regard to relevant considerations under the Penalties and Sentences Act 1992 (Qld) – whether sentencing judge acted on wrong principle CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant alleges sentence manifestly excessive insofar as sentencing judge allegedly failed to have regard to applicant's substantial rehabilitative steps – where applicant alleges court not justified in returning applicant to prison in light of time served – whether sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(a)(i), s 9(3), s 9(4), s 9(4)(g), s 9(4)(j) R v Bennett [2007] QCA 324, cited R v Hays; ex parte A-G [1999] QCA 443, considered R v Neivandt [2000] QCA 224, considered
COUNSEL:	P J Callaghan SC, with P Morreau, for the applicant P F Rutledge for the respondent
SOLICITORS:	Boe Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent