R v Fitzgerald - [2004] QCA 241

SUPREME COURT OF QUEENSLAND

CITATION: R v Fitzgerald [2004] QCA 241
PARTIES: R
v
FITZGERALD, Mark Andrew
(applicant)
FILE NO/S: CA No 179 of 2004
DC No 1292 of 2004
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Brisbane
DELIVERED ON: 23 July 2004
DELIVERED AT: Brisbane
HEARING DATE: 16 July 2004
JUDGES: de Jersey CJ, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court,
de Jersey CJ and Mackenzie J concurring as to the order
made, Jerrard JA dissenting
ORDER: Application for leave to appeal against sentence dismissed
CATCHWORDS: CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRENCE – where applicant convicted on his own pleas of guilty of break and enter with intent and assault occasioning bodily harm – where applicant sentenced to 21 months imprisonment suspended after 6 months for an operational period of 3 years – where offences involved the invasion of the complainant’s home - where sentencing judge considered deterrence a significant factor in imposing sentence – whether sentence imposed manifestly excessive
R v Denham; ex parte A-G (Qld) [2003] QCA 74; CA No 376
of 2002, 28 February 2003, considered
R v Miles [1999] QCA 325; CA No 96 of 1999, 20 August
1999, considered
R v Wentt [1995] QCA 613; CA No 440 of 1995, 6 December
1995, considered
COUNSEL: M J Byrne QC for the applicant
S G Bain for the respondent
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Jerrard JA, and am grateful for His Honour’s recitation of the relevant circumstances.
I have also had the advantage of reading the reasons for judgment of Mackenzie J. I agree with those reasons.
In my respectful view, the gravity of this home invasion, which occurred some substantial period (approximately four months) after the ending of the applicant’s relationship with his wife, and exhibited considerable deliberation and brutality, warranted the penalty imposed, notwithstanding the limited injuries to the complainant, the attitude of the applicant’s wife, the aspect of care for the applicant’s eldest child, and the rehabilitation of the applicant over the period between the offending and sentencing. I consider the sentence imposed to have been moderate.
The court must, through the penalties imposed, take a serious stand against home invasions. There is a strong need for deterrence in that area.
I would refuse the application.
JERRARD JA: On 11 June 2004 Mark Fitzgerald pleaded guilty to one count of entering the dwelling of Zane Milfull with intent to commit an indictable offence in that dwelling, the entry being by means of a break, and one count of unlawfully assaulting Zane Milfull and doing him bodily harm. Those offences were committed on 29 January 2003. He was sentenced to imprisonment for 21 months, that sentence…

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 Fitzgerald

Details

AGLC: R v Fitzgerald [2004] QCA 241
Case: [2004] QCA 241
Decision Date: 23/07/2004

CaseChat Overview and Summary

In the case of R v Fitzgerald, the applicant had pleaded guilty to charges of breaking and entering with intent and assault occasioning bodily harm. The sentencing judge imposed a sentence of 21 months imprisonment, suspended after six months, for an operational period of three years. The applicant sought leave to appeal against the sentence on the grounds that it was manifestly excessive. The appeal was dismissed by the court.

The primary legal issue for determination was whether the sentence imposed by the sentencing judge was manifestly excessive. The applicant argued that the sentence was disproportionately harsh and failed to take into account mitigating factors such as the applicant’s guilty pleas and lack of a criminal history. The applicant contended that the judge had overemphasised the deterrence purpose of the sentence, which should not have been the primary consideration in this case.

The court considered the sentencing principles and the factors that should be taken into account in determining an appropriate sentence. The court held that the sentencing judge had appropriately considered the principles of deterrence, denunciation, and rehabilitation in imposing the sentence. The court noted that the offences involved a significant invasion of the complainant’s home, which warranted a sentence that reflected the seriousness of the crimes. The court found that the sentence was not manifestly excessive and dismissed the application for leave to appeal.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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 Fitzgerald [2004] QCA 241
PARTIES:	R v FITZGERALD, Mark Andrew (applicant)
FILE NO/S:	CA No 179 of 2004 DC No 1292 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2004
JUDGES:	de Jersey CJ, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the Court, de Jersey CJ and Mackenzie J concurring as to the order made, Jerrard JA dissenting
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRENCE – where applicant convicted on his own pleas of guilty of break and enter with intent and assault occasioning bodily harm – where applicant sentenced to 21 months imprisonment suspended after 6 months for an operational period of 3 years – where offences involved the invasion of the complainant’s home - where sentencing judge considered deterrence a significant factor in imposing sentence – whether sentence imposed manifestly excessive
R v Denham; ex parte A-G (Qld) [2003] QCA 74; CA No 376 of 2002, 28 February 2003, considered R v Miles [1999] QCA 325; CA No 96 of 1999, 20 August 1999, considered R v Wentt [1995] QCA 613; CA No 440 of 1995, 6 December 1995, considered
COUNSEL:	M J Byrne QC for the applicant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent