R v Forrester - [2008] QCA 12

SUPREME COURT OF QUEENSLAND

CITATION:

R v Forrester [2008] QCA 12

PARTIES:

R

v

FORRESTER, Bill Donald

(applicant/appellant)

FILE NO/S:

CA No 287 of 2007
DC No 416 of 2007
DC No 425 of 2007
DC No 518 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

8 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2008

JUDGES:

Keane, Holmes and Fraser JJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for leave to appeal against sentences imposed for burglary and indecent assault granted

2.   Set aside the sentence of 3 years and 6 months imprisonment in respect of the burglary and indecent assault convictions and sentence the applicant in lieu to 3 years and 6 months imprisonment with a parole eligibility date fixed for 18 February 2008

3.   Application for leave to appeal against other sentences dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED - GENERALLY

CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – SENTENCE TO BE OF AND RELATED TO OFFENCE – where the applicant harassed the complainant using a mobile telephone – where the applicant was not charged with making harassing phone calls – where the sentencing judge considered the evidence of the phone calls as an aggravating circumstance in sentencing – whether evidence of the applicant’s harassment formed part of the offences of which he was convicted

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – whether the sentencing judge erred in exercising the sentencing discretion – whether the sentence imposed was manifestly excessive

Criminal Code Act 1995 (Cth), s 474.17

Corrective Services Act (Qld), s 184(2)

Penalties and Sentences Act 1992 (Qld), s 189, s 160D

AB v The Queen (1999) 198 CLR 111, followed

R v Baker (Unreported, Supreme Court of Queensland, Court of Criminal Appeal, Ryan, de Jersey and Cooper JJ, 8 August 1991), considered

R v Billy [1997] QCA 290, considered

R v D [1995] QCA 329, followed

R v Johnson [2007] QCA 433, followed

R v Sagiba (Unreported, Supreme Court of Queensland, Court of Appeal, McMurdo P, Thomas JA and Williams J, 5 November 1999), considered

COUNSEL:

The applicant appeared on his own behalf

D Holliday for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions for the respondent

KEANE JA: I agree with the reasons of Fraser JA and with the orders proposed by his Honour.

HOLMES JA: I agree with the reasons of Fraser JA and the…

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 Forrester

Details

AGLC: R v Forrester [2008] QCA 12
Case: [2008] QCA 12
Decision Date: 8 February 2008

CaseChat Overview and Summary

The case of R v Forrester involves the applicant, who was convicted of burglary and indecent assault, appealing against his sentences. The applicant argued that the evidence of his harassment of the complainant via a mobile telephone should not have been considered by the sentencing judge as an aggravating factor. The applicant was not charged with making harassing phone calls. The High Court of Australia heard the appeal against the sentences imposed by the lower court.

The legal issues in this case were whether the evidence of the applicant's harassment formed part of the offences of which he was convicted and whether the sentencing judge erred in exercising the sentencing discretion. The applicant argued that the sentencing judge should not have considered the evidence of the phone calls as an aggravating circumstance in sentencing, as he was not charged with making harassing phone calls. The applicant also argued that the sentence imposed was manifestly excessive.

The court held that the evidence of the applicant's harassment did not form part of the offences of which he was convicted, as he was not charged with making harassing phone calls. However, the court found that the sentencing judge did not err in exercising the sentencing discretion. The court further found that the sentence imposed was not manifestly excessive. The application for leave to appeal against sentences imposed for burglary and indecent assault was granted, and the sentence was set aside and replaced with a sentence of 3 years and 6 months imprisonment with a parole eligibility date fixed for 18 February 2008. The application for leave to appeal against other sentences was dismissed.

Orders

Orders of the court

1. Application for leave to appeal against sentences imposed for burglary and indecent assault granted

2. Set aside the sentence of 3 years and 6 months imprisonment in respect of the burglary and indecent assault convictions and sentence the applicant in lieu to 3 years and 6 months imprisonment with a parole eligibility date fixed for 18 February 2008

3. Application for leave to appeal against other sentences 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 Forrester [2008] QCA 12
PARTIES:	R v FORRESTER, Bill Donald (applicant/appellant)
FILE NO/S:	CA No 287 of 2007 DC No 416 of 2007 DC No 425 of 2007 DC No 518 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	8 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2008
JUDGES:	Keane, Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentences imposed for burglary and indecent assault granted 2. Set aside the sentence of 3 years and 6 months imprisonment in respect of the burglary and indecent assault convictions and sentence the applicant in lieu to 3 years and 6 months imprisonment with a parole eligibility date fixed for 18 February 2008 3. Application for leave to appeal against other sentences dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED - GENERALLY CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – SENTENCE TO BE OF AND RELATED TO OFFENCE – where the applicant harassed the complainant using a mobile telephone – where the applicant was not charged with making harassing phone calls – where the sentencing judge considered the evidence of the phone calls as an aggravating circumstance in sentencing – whether evidence of the applicant’s harassment formed part of the offences of which he was convicted CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – whether the sentencing judge erred in exercising the sentencing discretion – whether the sentence imposed was manifestly excessive Criminal Code Act 1995 (Cth), s 474.17 Corrective Services Act (Qld), s 184(2) Penalties and Sentences Act 1992 (Qld), s 189, s 160D AB v The Queen (1999) 198 CLR 111, followed R v Baker (Unreported, Supreme Court of Queensland, Court of Criminal Appeal, Ryan, de Jersey and Cooper JJ, 8 August 1991), considered R v Billy [1997] QCA 290, considered R v D [1995] QCA 329, followed R v Johnson [2007] QCA 433, followed R v Sagiba (Unreported, Supreme Court of Queensland, Court of Appeal, McMurdo P, Thomas JA and Williams J, 5 November 1999), considered
COUNSEL:	The applicant appeared on his own behalf D Holliday for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions for the respondent