R v Fleming - [2009] QCA 112

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fleming [2009] QCA 112

PARTIES:

R
v
FLEMING, Jason William
(applicant/appellant)

FILE NO:

CA No 328 of 2008
DC No 76 of 2008
DC No 86 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

5 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2009

JUDGES:

McMurdo P, Chesterman JA and Mullins J
Separate reasons for judgment of each member of the Court,

each concurring as to the order made

ORDERS:

1. The appeal is allowed
2. The sentences imposed for Counts 4 and 6 are set aside
3. The applicant is instead sentenced to three years imprisonment on each of Counts 4 and 6
4. Parole release date is to be fixed 17 November 2009, one year after the applicant entered custody
5. The declaration in relation to pre-sentence custody should not be disturbed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where sentencing judge was unsure as to procedures for dealing with a breach of probation – where sentencing judge increased head sentence for aggravated burglary and assault to avoid the need for a cumulative sentence for the breach of probation – whether breach of probation required applicant to serve a term of imprisonment

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was sentenced to three years and six months for burglary and assault charges – where sentencing judge increased head sentence from three years to incorporate breach of probation – whether sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 93(1)(a), s 123, s 126(2), s 126(4), s 126(6)(b), s 160A(3)

R v Armstrong, Park, Pullyn[2008] QCA 132, considered

COUNSEL:

R East for the applicant/appellant
M B Lehane for the respondent

SOLICITORS:

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

McMURDO P: I agree with Chesterman JA.

CHESTERMAN JA
: On 17 November 2008 the applicant pleaded guilty to common assault; burglary by breaking, in the night, with violence, while armed, in company; wilful damage; and assault occasioning bodily harm while armed and in company. On 21 November 2008 he was sentenced to 12 months’ imprisonment for the assault; three and a half years’ imprisonment for each of the counts of burglary with aggravation and assault occasioning bodily harm while armed and in company; and 12 months’ imprisonment for wilful damage. All sentences were to be served concurrently. A parole eligibility date was fixed for 17 January 2010 which is 14 months after the plea. The orders require the applicant to serve a third of the two longer terms in actual custody. There was a declaration that four days of

pre-sentence custody was time served under the sentences.

The offences to which the applicant pleaded guilty were committed on 11…

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 Fleming

Details

AGLC: R v Fleming [2009] QCA 112
Case: [2009] QCA 112
Decision Date: 5 May 2009

CaseChat Overview and Summary

The case involved an appellant who had been sentenced for aggravated burglary and assault, as well as a breach of probation. The sentencing judge, uncertain about the procedures for dealing with a breach of probation, increased the head sentence for the original offences to avoid imposing a cumulative sentence for the breach. The appellant appealed against the sentence, arguing that the breach of probation did not require imprisonment and that the overall sentence was manifestly excessive. The appeal was heard and determined by the court.

The court had to decide whether the sentencing judge had acted on the wrong principle by increasing the head sentence for the original offences to avoid imposing a cumulative sentence for the breach of probation. Additionally, the court had to determine whether the sentence imposed, which was three years and six months, was manifestly excessive. The court considered the appropriate principles for dealing with a breach of probation and whether the breach in this case warranted a term of imprisonment. Furthermore, the court evaluated whether the overall sentence was excessive in light of the circumstances of the case.

The court found that the sentencing judge had indeed acted on the wrong principle by increasing the head sentence for the original offences. The court held that the breach of probation did not require the imposition of a term of imprisonment. Consequently, the court concluded that the sentence was manifestly excessive. The court allowed the appeal, set aside the sentences imposed for Counts 4 and 6, and instead sentenced the appellant to three years imprisonment on each of those counts. The court also fixed the parole release date as 17 November 2009, one year after the appellant entered custody. The declaration in relation to pre-sentence custody was not to be disturbed.

The final orders of the court were to allow the appeal, set aside the sentences imposed for Counts 4 and 6, sentence the appellant to three years imprisonment on each of those counts, fix the parole release date as 17 November 2009, and leave the declaration in relation to pre-sentence custody undisturbed.

Orders

Orders of the court

1. The appeal is allowed

2. The sentences imposed for Counts 4 and 6 are set aside

3. The applicant is instead sentenced to three years imprisonment on each of Counts 4 and 6

4. Parole release date is to be fixed 17 November 2009, one year after the applicant entered custody

5. The declaration in relation to pre-sentence custody should not be disturbed

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 Fleming [2009] QCA 112
PARTIES:	R v FLEMING, Jason William (applicant/appellant)
FILE NO:	CA No 328 of 2008 DC No 76 of 2008 DC No 86 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	5 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2009
JUDGES:	McMurdo P, Chesterman JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDERS:	1. The appeal is allowed 2. The sentences imposed for Counts 4 and 6 are set aside 3. The applicant is instead sentenced to three years imprisonment on each of Counts 4 and 6 4. Parole release date is to be fixed 17 November 2009, one year after the applicant entered custody 5. The declaration in relation to pre-sentence custody should not be disturbed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where sentencing judge was unsure as to procedures for dealing with a breach of probation – where sentencing judge increased head sentence for aggravated burglary and assault to avoid the need for a cumulative sentence for the breach of probation – whether breach of probation required applicant to serve a term of imprisonment CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was sentenced to three years and six months for burglary and assault charges – where sentencing judge increased head sentence from three years to incorporate breach of probation – whether sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 93(1)(a), s 123, s 126(2), s 126(4), s 126(6)(b), s 160A(3) R v Armstrong, Park, Pullyn[2008] QCA 132, considered
COUNSEL:	R East for the applicant/appellant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent