R v Freestone - [2009] QCA 290

SUPREME COURT OF QUEENSLAND

CITATION:

R v Freestone [2009] QCA 290

PARTIES:

R
v
FREESTONE, Scott Robert
(applicant)

FILE NO/S:

CA No 167 of 2009
DC No 226 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

29 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2009

JUDGES:

McMurdo P, Keane JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as the order made

ORDER:

Application for leave to appeal refused

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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where the applicant pleaded guilty to two counts of assault occasioning bodily harm – where the applicant punched the complainant in the head without warning in a bar – where the applicant later bit the complainant’s finger, amputating its tip – whether the learned sentencing judge erred in finding that the biting occurred during a consensual fight – whether a sentence that fixed a parole release date after six months of imprisonment was manifestly excessive

Criminal Code 1899 (Qld), s 339
Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(3), s 9(4)

R v Aitken[1995] QCA 534, cited
R v Holani; ex parte Attorney-General of Queensland (1994) A Crim R 72; [1994] QCA 447, cited
R v King [2006] QCA 466, applied
R v Kite [1999] QCA 162, cited
R v KU & Ors; ex parte A-G(Qld) [2008] QCA 154, cited
R v M & Attorney-General of Queensland[1996] QCA 257, cited
R v Mundraby [2004] QCA 493, cited
R v O’Grady; ex parte A-G(Qld) (2003) 138 A Crim R 273; [2003] QCA 137, cited
R v Tapiolas [2008] QCA 118, applied
R v Walker [1997] QCA 140, cited

COUNSEL:

S Ryan for the applicant
T A Fuller for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent

McMURDO P: The application for leave to appeal against sentence should be dismissed for the reasons given by Applegarth J.

Under s 9(2) Penalties and Sentences Act 1992 (Qld) a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable. But as the applicant's assaults on the complainant involved the use of violence, s 9(2)(a) does not apply to his sentence: see s 9(3). Instead, the court must have regard primarily to the sentencing principles set out in s 9(4). Applying those principles, a judge could have imposed a sentence in this case that did not involve a period of actual custody whilst still meeting the need for personal and general deterrence. For example, an effective sentence of two to three years imprisonment, immediately suspended, with…

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 Freestone

Details

AGLC: R v Freestone [2009] QCA 290
Case: [2009] QCA 290
Decision Date: 29 September 2009

CaseChat Overview and Summary

In the case of R v Freestone, the applicant, Freestone, was convicted and sentenced for two counts of assault occasioning bodily harm. Freestone pleaded guilty to punching the complainant in the head without warning in a bar and to biting the complainant’s finger, resulting in the amputation of its tip. The applicant sought leave to appeal against his sentence, arguing that the primary judge erred in finding that the biting occurred during a consensual fight and that the sentence imposing a parole release date after six months of imprisonment was manifestly excessive.

The legal issues before the court were whether the primary judge made an error in determining that the biting incident was consensual and whether the sentence imposed was manifestly excessive. The applicant argued that the biting did not occur during a consensual fight and that the sentence was disproportionate to the nature and circumstances of the offences.

The court found that the primary judge was not in error in determining that the biting occurred during a consensual fight, as there was ample evidence to support this conclusion. The court further held that the sentence imposed was not manifestly excessive, as it took into account the applicant's guilty plea, the circumstances of the offence, and the need for deterrence and rehabilitation. The court rejected the applicant's submission that the sentence was manifestly excessive and found that the sentence was within the range of appropriate penalties for the offences committed.

The final order of the court was to refuse the applicant's application for leave to appeal. The court held that the primary judge's findings and the sentence imposed were not manifestly erroneous or excessive, and therefore, the application for leave to appeal was dismissed.

Orders

Orders of the court

Application for leave to appeal refused

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 Freestone [2009] QCA 290
PARTIES:	R v FREESTONE, Scott Robert (applicant)
FILE NO/S:	CA No 167 of 2009 DC No 226 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	29 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 September 2009
JUDGES:	McMurdo P, Keane JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as the order made
ORDER:	Application for leave to appeal refused
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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where the applicant pleaded guilty to two counts of assault occasioning bodily harm – where the applicant punched the complainant in the head without warning in a bar – where the applicant later bit the complainant’s finger, amputating its tip – whether the learned sentencing judge erred in finding that the biting occurred during a consensual fight – whether a sentence that fixed a parole release date after six months of imprisonment was manifestly excessive Criminal Code 1899 (Qld), s 339 Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(3), s 9(4) R v Aitken[1995] QCA 534, cited R v Holani; ex parte Attorney-General of Queensland (1994) A Crim R 72; [1994] QCA 447, cited R v King [2006] QCA 466, applied R v Kite [1999] QCA 162, cited R v KU & Ors; ex parte A-G(Qld) [2008] QCA 154, cited R v M & Attorney-General of Queensland[1996] QCA 257, cited R v Mundraby [2004] QCA 493, cited R v O’Grady; ex parte A-G(Qld) (2003) 138 A Crim R 273; [2003] QCA 137, cited R v Tapiolas [2008] QCA 118, applied R v Walker [1997] QCA 140, cited
COUNSEL:	S Ryan for the applicant T A Fuller for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent