R v Fortnum and Fortnum - [2006] QCA 147

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fortnum & Fortnum [2006] QCA 147

PARTIES:

R
v
FORTNUM, Peter William
(first applicant)

R
v
FORTNUM, Michael Trevor
(second applicant)

FILE NO/S:

CA No 65 of 2006
CA No 66 of 2006
DC No 3631 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2006

JUDGES:

Williams and Jerrard JA, Mullins J
Separate reasons of each member of the Court, each concurring as to the order made

ORDERS:

Both applications for leave to appeal against sentence are dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where both applicants pleaded guilty to two counts of assault occasioning bodily harm whilst armed and in company – where first applicant was sentenced to 12 months imprisonment, to be suspended after six months with an operational period of 18 months – where second applicant was sentenced to 12 months imprisonment to be suspended after three months, for an operational period of 18 months – whether the sentences were manifestly excessive – where the first applicant was 25 years old at the time the offences were committed – where the second applicant was 22 at the time the offences were committed – where the offences were motivated by revenge – where applicants armed themselves with dangerous weapons (piece of timber with protruding nails and an extendable baton)

R v Abednego [2004] QCA 377; CA No 248 of 2004, 12 October 2004, distinguished
R v Middleton and Johns [2006] QCA 92; CA Nos 58 and 59 of 2006, 31 March 2006, considered

COUNSEL:

A J Glynn SC for the applicants
B G Campbell for the respondent

SOLICITORS:

Quinn & Scattini for the applicants
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and I agree with all that is said therein.

The offences arose out of an attack on three young men in a public place by three young men acting in company and each being armed. In my view the offences were made more serious because of the nature of the weapons with which the two applicants and their associate, Jonathon Fortnum, armed themselves: a piece of timber six centimetres in diameter, 75 centimetres long, and with protruding nails; a baton approximately two feet long; and a baseball bat. What is even more concerning is that, after an initial verbal confrontation between the two groups, the applicants and their associate went away to arm themselves and then returned to carry out the vicious assault.

In all the circumstances the sentences imposed were well within range and the applications for leave to appeal should be dismissed.

JERRARD JA: This proceeding is the hearing of applications for leave to…

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 Fortnum and Fortnum

Details

AGLC: R v Fortnum and Fortnum [2006] QCA 147
Case: [2006] QCA 147
Decision Date: 5 May 2006

CaseChat Overview and Summary

The applicants, Fortnum and Fortnum, sought leave to appeal against their sentences in the Supreme Court of Victoria. They had each pleaded guilty to two counts of assault occasioning bodily harm whilst armed and in company. The first applicant was sentenced to 12 months imprisonment, suspended after six months with an operational period of 18 months. The second applicant received a similar sentence, suspended after three months, also with an operational period of 18 months. The applicants argued that their sentences were manifestly excessive and should be reduced.

The legal issues before the court involved the assessment of the severity of the sentences imposed in relation to the nature and circumstances of the offences. The applicants contended that the sentences were manifestly excessive, particularly considering their age at the time of the offences – the first applicant was 25, and the second was 22. The court had to determine whether the sentences were disproportionately harsh and whether the applicants' age and the motivation behind the offences warranted a reduction in their sentences.

In dismissing the applications for leave to appeal, the court found that the sentences were not manifestly excessive. The court considered the seriousness of the offences, which were motivated by revenge and involved the use of dangerous weapons – a piece of timber with protruding nails and an extendable baton. The court held that the sentences were appropriate given the circumstances and that the applicants' age and motivation did not justify a reduction. The Supreme Court concluded that the applicants had not demonstrated that the sentences were so excessive as to warrant an appeal. The applications for leave to appeal were therefore dismissed.

Orders

Orders of the court

Both applications for leave to appeal against sentence are dismissed

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 Fortnum & Fortnum [2006] QCA 147
PARTIES:	R v FORTNUM, Peter William (first applicant) R v FORTNUM, Michael Trevor (second applicant)
FILE NO/S:	CA No 65 of 2006 CA No 66 of 2006 DC No 3631 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	4 April 2006
JUDGES:	Williams and Jerrard JA, Mullins J Separate reasons of each member of the Court, each concurring as to the order made
ORDERS:	Both applications for leave to appeal against sentence are dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where both applicants pleaded guilty to two counts of assault occasioning bodily harm whilst armed and in company – where first applicant was sentenced to 12 months imprisonment, to be suspended after six months with an operational period of 18 months – where second applicant was sentenced to 12 months imprisonment to be suspended after three months, for an operational period of 18 months – whether the sentences were manifestly excessive – where the first applicant was 25 years old at the time the offences were committed – where the second applicant was 22 at the time the offences were committed – where the offences were motivated by revenge – where applicants armed themselves with dangerous weapons (piece of timber with protruding nails and an extendable baton) R v Abednego [2004] QCA 377; CA No 248 of 2004, 12 October 2004, distinguished R v Middleton and Johns [2006] QCA 92; CA Nos 58 and 59 of 2006, 31 March 2006, considered
COUNSEL:	A J Glynn SC for the applicants B G Campbell for the respondent
SOLICITORS:	Quinn & Scattini for the applicants Director of Public Prosecutions (Queensland) for the respondent