R v Fisher - [2014] QCA 302

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fisher [2014] QCA 302

PARTIES:

R
v
FISHER, Alan Mark
(applicant)

FILE NO/S:

CA No 158 of 2014
DC No 303 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

28 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2014

JUDGES:

Fraser and Gotterson JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of indecent treatment of a child under 12 and one count of unlawful stalking – where the applicant was sentenced to two years imprisonment and six months imprisonment respectively – where the sentences were ordered to be served concurrently with each other but cumulatively upon the sentence he was serving – where no parole eligibility date was fixed – whether the sentence imposed was manifestly excessive – whether the sentencing judge was obliged to fix a parole eligibility date

Corrective Services Act 2006 (Qld), s 160, s 184
Criminal Code 1899 (Qld), s 210(1)(d)(3)
Penalties and Sentences Act 1992 (Qld) s 9(1)(a), s 13, s 156A, s 160, s 160A, s 160D, s 160E

R v Glebow [2008] 1 Qd R 465; [2007] QCA 230, applied
R v Halvorsen[1994] QCA 565, distinguished
R v Porter; Ex parte Attorney-General (Qld)[2009] QCA 353, distinguished
R v Schwob[1996] QCA 123, distinguished
R v Shillingsworth [2002] 1 Qd R 527; [2001] QCA 172, applied
R v Sivel[1999] QCA 506, distinguished
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, applied

COUNSEL:

The applicant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of Henry J and the order proposed by his Honour.

GOTTERSON JA: I agree with the order proposed by Henry J and with the reasons given by his Honour.

HENRY J: On 22 May 2014 the applicant pleaded guilty to one count of indecent treatment of a child under 12 and one count of unlawful stalking. He was sentenced to terms of two years imprisonment and six months imprisonment respectively. Those sentences were ordered to be served concurrently with each other but cumulatively upon the sentence he was serving. No parole eligibility date was fixed.

The applicant seeks leave to appeal his sentences for indecent treatment and stalking on the grounds they are manifestly excessive.

Background

The applicant is a 44 year old indigenous man with an appalling criminal history. At the time of sentence his 10 page criminal history included reference to 32 separate court appearances at which he was sentenced to imprisonment.…

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 Fisher

Details

AGLC: R v Fisher [2014] QCA 302
Case: [2014] QCA 302
Decision Date: 28 November 2014

CaseChat Overview and Summary

The case of R v Fisher involved an appeal against the sentence imposed by the sentencing judge. The applicant had pleaded guilty to one count of indecent treatment of a child under 12 years of age and one count of unlawful stalking. The applicant was sentenced to two years imprisonment for the indecent treatment offence and six months imprisonment for the stalking offence. These sentences were ordered to be served concurrently with each other but cumulatively upon the sentence the applicant was already serving. No parole eligibility date was fixed by the sentencing judge.

The legal issues in this case centred on whether the sentence imposed was manifestly excessive or inadequate. Additionally, the court had to determine whether the sentencing judge was obliged to fix a parole eligibility date. The applicant argued that the sentence was manifestly excessive, particularly in light of the lack of a parole eligibility date. The respondent, in turn, argued that the sentence was appropriate and that there was no obligation on the part of the sentencing judge to fix a parole eligibility date.

The court considered the nature and circumstances of the offences, the need for deterrence and denunciation, and the principles of sentencing. The court also examined the sentencing judge's reasons and the overall fairness of the sentence. Ultimately, the court found that the sentence imposed was not manifestly excessive. The court also determined that the sentencing judge was not obliged to fix a parole eligibility date, as it was within the judge's discretion whether to do so. The court rejected the applicant's appeal and dismissed the application for a new trial.

The court's final orders were that the application be refused. The sentences imposed by the sentencing judge were upheld, and no parole eligibility date was fixed. The applicant's appeal against the sentence was dismissed.

Orders

Orders of the court

Application 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 Fisher [2014] QCA 302
PARTIES:	R v FISHER, Alan Mark (applicant)
FILE NO/S:	CA No 158 of 2014 DC No 303 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	28 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2014
JUDGES:	Fraser and Gotterson JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of indecent treatment of a child under 12 and one count of unlawful stalking – where the applicant was sentenced to two years imprisonment and six months imprisonment respectively – where the sentences were ordered to be served concurrently with each other but cumulatively upon the sentence he was serving – where no parole eligibility date was fixed – whether the sentence imposed was manifestly excessive – whether the sentencing judge was obliged to fix a parole eligibility date Corrective Services Act 2006 (Qld), s 160, s 184 Criminal Code 1899 (Qld), s 210(1)(d)(3) Penalties and Sentences Act 1992 (Qld) s 9(1)(a), s 13, s 156A, s 160, s 160A, s 160D, s 160E R v Glebow [2008] 1 Qd R 465; [2007] QCA 230, applied R v Halvorsen[1994] QCA 565, distinguished R v Porter; Ex parte Attorney-General (Qld)[2009] QCA 353, distinguished R v Schwob[1996] QCA 123, distinguished R v Shillingsworth [2002] 1 Qd R 527; [2001] QCA 172, applied R v Sivel[1999] QCA 506, distinguished Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, applied
COUNSEL:	The applicant appeared on his own behalf B J Power for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent