R v Gill; ex parte - [2004] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gill; ex parte A-G (Qld) [2004] QCA 139

PARTIES:

R
v
GILL, Christopher Alan
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 414 of 2003
DC No 2065 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2004

JUDGES:

de Jersey CJ, Davies JA and Holmes J
Separate reasons for judgment of each member of the Court, Davies JA and Holmes J concurring as to the order made, de Jersey CJ dissenting

ORDER:

Appeal against sentence by Attorney-General dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent pleaded guilty to stalking with a circumstance of aggravation and attempted rape – where respondent was sentenced to two years imprisonment for the former and a concurrent three year term for the latter, with a recommendation for consideration of post-prison community based release after 12 months – where the Attorney-General appeals on the ground the sentences are manifestly inadequate – whether the sentences imposed on the respondent are manifestly inadequate

Criminal Code Act 1889 (Qld), s 538(1)

R v Beaver [1992] QCA 238; CA No 114 of 1992, 2 June 1992, considered
R v Hatch [1999] QCA 495; CA No 320 of 1999, 29 November 1999, considered
R v Hughes [2000] QCA 16; CA No 306 of 1999, 11 February 2000, considered
R v J [2002] QCA 48; CA No 3 of 2002, 22 February 2002, considered
R v McNamara [1996] QCA 433; CA No 399 of 1996, 8 November 1996, considered
R v Stephens; Attorney-General of Queensland [1994] QCA 507; CA No 411 of 1994, 28 November 1994, not followed

COUNSEL:

B G Campbell for the appellant
C J Eberhardt for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Callaghan Lawyers for the respondent

de JERSEY CJ: The respondent pleaded guilty to two offences, stalking with a circumstance of aggravation, and attempted rape. He was sentenced to two years imprisonment for the former and a concurrent three year term for the latter, with a recommendation for consideration of post-prison community based release after 12 months. The Attorney-General appeals on the ground the sentences are manifestly inadequate.

The respondent committed the offence of stalking between the end of January and the end of February 2002. He was then 35 years old. He had earlier lived with the complainant for a couple of months and she had fallen pregnant to him. In late January 2002, the complainant told him that she no longer wanted contact with him. Over the following month, the respondent made almost daily contact with her (and often numerous times per day), by telephone calls…

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 Gill; ex parte

Details

AGLC: R v Gill; ex parte Attorney-General [2004] QCA 139
Case: [2004] QCA 139
Decision Date: 30 April 2004

CaseChat Overview and Summary

The appeal by the Attorney-General against the sentence imposed on the respondent was heard by the court. The respondent had pleaded guilty to stalking with a circumstance of aggravation and attempted rape. The court sentenced the respondent to two years imprisonment for stalking and a concurrent three-year term for attempted rape, with a recommendation for consideration of post-prison community-based release after 12 months. The Attorney-General appealed on the ground that the sentences were manifestly inadequate.

The legal issues before the court were whether the sentences imposed on the respondent were manifestly inadequate. The Attorney-General argued that the sentences did not reflect the seriousness of the offences and the need to deter similar conduct in the future. The court considered the principles of sentencing, the gravity of the offences, and the need for appropriate punishment and deterrence.

The court held that the sentences were not manifestly inadequate. The court considered the totality of the circumstances, including the respondent's guilty plea, the recommendation for post-prison community-based release, and the deterrent effect of the sentences. The court found that the sentences imposed were appropriate and did not require alteration. The appeal was dismissed, and the sentences remained unchanged.

Orders

Orders of the court

Appeal against sentence by Attorney-General 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

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CITATION:	R v Gill; ex parte A-G (Qld) [2004] QCA 139
PARTIES:	R v GILL, Christopher Alan (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 414 of 2003 DC No 2065 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2004
JUDGES:	de Jersey CJ, Davies JA and Holmes J Separate reasons for judgment of each member of the Court, Davies JA and Holmes J concurring as to the order made, de Jersey CJ dissenting
ORDER:	Appeal against sentence by Attorney-General dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent pleaded guilty to stalking with a circumstance of aggravation and attempted rape – where respondent was sentenced to two years imprisonment for the former and a concurrent three year term for the latter, with a recommendation for consideration of post-prison community based release after 12 months – where the Attorney-General appeals on the ground the sentences are manifestly inadequate – whether the sentences imposed on the respondent are manifestly inadequate
Criminal Code Act 1889 (Qld), s 538(1) R v Beaver [1992] QCA 238; CA No 114 of 1992, 2 June 1992, considered R v Hatch [1999] QCA 495; CA No 320 of 1999, 29 November 1999, considered R v Hughes [2000] QCA 16; CA No 306 of 1999, 11 February 2000, considered R v J [2002] QCA 48; CA No 3 of 2002, 22 February 2002, considered R v McNamara [1996] QCA 433; CA No 399 of 1996, 8 November 1996, considered R v Stephens; Attorney-General of Queensland [1994] QCA 507; CA No 411 of 1994, 28 November 1994, not followed
COUNSEL:	B G Campbell for the appellant C J Eberhardt for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Callaghan Lawyers for the respondent