R v Elliott

[2000] QCA 267

SUPREME COURT OF QUEENSLAND

CITATION:

R v Elliott [2000] QCA 267

PARTIES:

R
v
ELLIOTT, Christopher John
(applicant)

FILE NO/S:

CA No  38 of 2000
DC No 815 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

11 July 2000

DELIVERED AT:

Brisbane

HEARING DATE:

4 July 2000

JUDGES:

McPherson, Davies and Thomas JJA

Joint reasons for judgment of Davies and Thomas JJA; separate reasons of McPherson JA, concurring as to the orders made

ORDER:

1.   Leave to appeal against sentence granted;

2.   Appeal allowed;

3.   Sentence below set aside and replaced with a sentence of three years imprisonment with a recommendation for consideration of parole after one year; and

4.   Declare that the applicant has already served 133 days of pre-sentence custody solely in respect of these offences namely from 4 March 1999 to 28 April 1999, from 28 October 1999 until 28 January 2000.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS - whether effective sentence of six years imprisonment with a recommendation for consideration of parole after 18 months manifestly excessive - where offences not involve actual physical harm – whether sentence failed to give sufficient regard to applicant’s mental disorder

Penalties and Sentences Act 1992 (Qld), s 92, s 161

Channon v R (1978) 20 ALR 1, considered
R v Amituanai (1995) 78 A Crim R 588, considered
R v Brown [1996] QCA 251; CA No 155 of 1996, 26 July 1996, considered
R v Hakkila [1994] QCA 95; CA No 14 of 1994, 30 March 1994, considered
R v Hughes [1999] 1 Qd R 389, considered
R v Ishibashi [1998] QCA 342; CA No 88 of 1998, 29 May 1998, considered
R v Norman [1999] QCA 77, CA No 378 of 1998, 18 March 1999, considered
R v Wishart  and Jenkins [1994] 2 Qd R 421, considered

COUNSEL:

P A  Leask for the applicant
T A C Winn for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA:  I agree with the joint reasons of Davies and Thomas JJA for allowing this appeal, and with the orders proposed.

1. DAVIES AND THOMAS JJA:  The applicant pleaded guilty to six offences arising out of an incident on 4 March 1999.  The offences were wilful damage, common assault, going armed so as to cause fear and three malicious acts with intent to resist lawful arrest.  On the first three counts he was sentenced to two years imprisonment, and on the remaining three counts to six years imprisonment with a recommendation for consideration of parole after 18 months.  It was declared that he had served 133 days in pre-sentence custody.

1. The circumstances of the offences were that the applicant, who was a regulated patient at the Gold Coast Hospital, absconded from the hospital approximately one…