R v Foodey - [2003] QCA 310

SUPREME COURT OF QUEENSLAND

CITATION:

R v Foodey [2003] QCA 310

PARTIES:

R
v
FOODEY, Simon Hilton
(applicant)

FILE NO/S:

CA No 30 of 2003
DC No 17 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

25 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2003

JUDGES:

Davies and Jerrard JJA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Dismiss the application for leave to appeal against sentence

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant sentenced to eighteen months imprisonment suspended for five years after applicant served 168 days for unlawful stalking and wilful damage – where plea of guilty – where applicant demonstrated no remorse – where learned sentencing judge considered offending behaviour to be so serious as to require a deterrent element in the sentence imposed – where applicant’s conduct in constant breach of protection orders – whether sentence manifestly excessive

Domestic and Family Violence Protection Act 1989 (Qld)

R v Hallett [1997] QCA 418; CA No 301 of 1997, 21 November 1997, discussed
R v Holznagel [1998] QCA 26; CA No 426 of 1997, 6 February 1998, discussed
R v Millar [2002] QCA 382; CA No 198 of 2002, 25 September 2002, discussed

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

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

DAVIES JA: I agree with the reasons for judgment of Jerrard JA and with the order he proposes.

JERRARD JA: In mid May 2002 the applicant Simon Foodey and his wife Jennifer Louise Foodey separated after an eight year marriage. They had had a relationship for some 14 years and had two children then aged six and two. On 19 May 2002 a Temporary Protection Order, which had been issued by the Toowoomba Magistrates Court on 16 May 2002, was served on Mr Foodey at the Helidon Police Station. That order, issued pursuant to the Domestic and Family Violence Protection Act 1989 (Qld), expired on 30 May 2002, and on that date a second Temporary Protection Order was made. The applicant was present when that order was issued, which expired on 8 July 2002. On that last date a further order was made.

Despite those orders, the applicant engaged in conduct between 30 May 2002 and 25 July 2002 which constituted unlawfully stalking Jennifer Foodey; and on 23 December 2002 he pleaded guilty in the Toowoomba District Court to having committed that offence between those dates. By his plea he also admitted two circumstances of aggravation, namely that a number of the concerning acts of that stalking were constituted by his unlawfully using, and threatening to use, unlawful violence against Jennifer Foodey; and that a number of…

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 Foodey

Details

AGLC: R v Foodey [2003] QCA 310
Case: [2003] QCA 310
Decision Date: 25 July 2003

CaseChat Overview and Summary

The case of R v Foodey involved the applicant, who had been sentenced to eighteen months imprisonment, suspended for five years, after serving 168 days for unlawful stalking and wilful damage. The applicant had pleaded guilty to the charges. The primary issue before the court was whether the sentence was manifestly excessive. The learned sentencing judge had taken into account the seriousness of the applicant's offending behaviour, which included constant breaches of protection orders, and had imposed a sentence with a deterrent element due to the lack of remorse demonstrated by the applicant.

The court considered the principles of sentencing and the factors that the sentencing judge must take into account. The seriousness of the offence, the need for deterrence, and the applicant's conduct post-sentencing were all relevant. The court observed that the sentencing judge had carefully considered these factors and had exercised their discretion appropriately. The court found that the sentence was not manifestly excessive, as it was proportionate to the seriousness of the offence and took into account the need for deterrence.

The applicant's argument that the sentence was manifestly excessive was dismissed by the court. The court held that the sentence imposed was within the range of appropriate penalties for the offences committed, and the sentencing judge had appropriately balanced the various factors in reaching their decision. The court concluded that the sentence was not manifestly excessive and denied the application for leave to appeal against the sentence.

Orders

Orders of the court

Dismiss the application for leave to appeal against sentence

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 Foodey [2003] QCA 310
PARTIES:	R v FOODEY, Simon Hilton (applicant)
FILE NO/S:	CA No 30 of 2003 DC No 17 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	25 July 2003
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2003
JUDGES:	Davies and Jerrard JJA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Dismiss the application for leave to appeal against sentence
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant sentenced to eighteen months imprisonment suspended for five years after applicant served 168 days for unlawful stalking and wilful damage – where plea of guilty – where applicant demonstrated no remorse – where learned sentencing judge considered offending behaviour to be so serious as to require a deterrent element in the sentence imposed – where applicant’s conduct in constant breach of protection orders – whether sentence manifestly excessive Domestic and Family Violence Protection Act 1989 (Qld) R v Hallett [1997] QCA 418; CA No 301 of 1997, 21 November 1997, discussed R v Holznagel [1998] QCA 26; CA No 426 of 1997, 6 February 1998, discussed R v Millar [2002] QCA 382; CA No 198 of 2002, 25 September 2002, discussed
COUNSEL:	The applicant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent