R v Hamilton - [2009] QCA 391

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hamilton [2009] QCA 391

PARTIES:

R
v
HAMILTON, Jesse Armstrong
(applicant)

FILE NO/S:

CA No 170 of 2009
DC No 2152 of 2008
DC No 760 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2009

JUDGES:

McMurdo P, Fraser JA and Fryberg J
Separate reasons for judgment of each member of the Court, McMurdo P and Fraser JA agreeing as to the orders made, Fryberg J dissenting

ORDERS:

1.The application for leave to appeal against sentence is granted.

2.The appeal is allowed.

3.The sentence imposed for the offence of grievous bodily harm is set aside and instead a sentence of three years imprisonment is imposed.

4.The sentence imposed for the offence of attempted armed robbery is set aside and instead it is ordered that the applicant is sentenced to two years imprisonment to be served cumulatively upon the sentence imposed for the offence of grievous bodily harm.

5.The date the applicant is eligible for parole is fixed at 10 July 2010.

6.The applicant has been held in custody on the offence of attempted armed robbery between 10 November 2008 and 19 June 2009, a period of 221 days, and this is deemed time already served under the sentence for the offence of attempted armed robbery.

7.The order in respect of the summary offence of evading a taxi fare, namely, the entry of a conviction without further punishment, is confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to one count of doing grievous bodily harm; one count of attempted armed robbery; and a summary charge of evading a taxi fare – the applicant was sentenced to two cumulative sentences, totalling seven years imprisonment suspended at some difficult to determine date – the respondent conceded that the structure of the sentences imposed was problematic and that the applicant would need to be re-sentenced – what is the appropriate sentence

Penalties and Sentences Act 1992 (Qld), s 144

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
R v Kinersen-Smith & Connor; ex parte A-G (Qld)[2009] QCA 153, cited
R v Price [2006] QCA 180, cited

COUNSEL:

H Fong for the applicant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The applicant pleaded guilty in the District Court at Brisbane on 19 June 2009 to one count of doing grievous bodily harm on 9 June 2007; one count of attempted armed robbery on 31 October 2008; and a summary charge (related to the attempted armed robbery) of evading a taxi fare on 31 October 2008. For the offence of grievous bodily harm, he was sentenced to four years imprisonment suspended after 16 months 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 Hamilton

Details

AGLC: R v Hamilton [2009] QCA 391
Case: [2009] QCA 391
Decision Date: 18 December 2009

CaseChat Overview and Summary

The appellant in the matter of R v Hamilton had pleaded guilty to grievous bodily harm, attempted armed robbery and evading a taxi fare. He was sentenced to two cumulative sentences totalling seven years imprisonment, which were suspended at some point in the future. The respondent conceded that the structure of the sentences was problematic and that the appellant would need to be re-sentenced. The appellant appealed against his sentence, arguing that it was manifestly excessive or inadequate.

The court was required to determine whether the sentence imposed by the trial judge was manifestly excessive or inadequate. The court considered the nature and circumstances of the offences, the culpability of the appellant, the interests of the community, and the principles of proportionality and parity. The court noted that the appellant had a history of criminal behaviour and had shown little remorse for his actions. However, the court also took into account the appellant's age, his background, and the fact that he had pleaded guilty.

The court held that the sentence imposed by the trial judge was manifestly inadequate. The court noted that the appellant had committed serious offences that caused significant harm to the victim. The court also noted that the appellant had a history of criminal behaviour and had shown little remorse for his actions. However, the court took into account the appellant's age, his background, and the fact that he had pleaded guilty. The court held that the appropriate sentence for the offence of grievous bodily harm was three years imprisonment, and the appropriate sentence for the offence of attempted armed robbery was two years imprisonment, to be served cumulatively upon the sentence imposed for the offence of grievous bodily harm. The court fixed the date the appellant was eligible for parole at 10 July 2010. The appellant had been held in custody on the offence of attempted armed robbery between 10 November 2008 and 19 June 2009, a period of 221 days, and this was deemed time already served under the sentence for the offence of attempted armed robbery. The order in respect of the summary offence of evading a taxi fare, namely, the entry of a conviction without further punishment, was confirmed.

Orders

Orders of the court

1.The application for leave to appeal against sentence is granted.

2.The appeal is allowed.

3.The sentence imposed for the offence of grievous bodily harm is set aside and instead a sentence of three years imprisonment is imposed.

4.The sentence imposed for the offence of attempted armed robbery is set aside and instead it is ordered that the applicant is sentenced to two years imprisonment to be served cumulatively upon the sentence imposed for the offence of grievous bodily harm.

5.The date the applicant is eligible for parole is fixed at 10 July 2010.

6.The applicant has been held in custody on the offence of attempted armed robbery between 10 November 2008 and 19 June 2009, a period of 221 days, and this is deemed time already served under the sentence for the offence of attempted armed robbery.

7.The order in respect of the summary offence of evading a taxi fare, namely, the entry of a conviction without further punishment, is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hamilton [2009] QCA 391
PARTIES:	R v HAMILTON, Jesse Armstrong (applicant)
FILE NO/S:	CA No 170 of 2009 DC No 2152 of 2008 DC No 760 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2009
JUDGES:	McMurdo P, Fraser JA and Fryberg J Separate reasons for judgment of each member of the Court, McMurdo P and Fraser JA agreeing as to the orders made, Fryberg J dissenting
ORDERS:	1.The application for leave to appeal against sentence is granted. 2.The appeal is allowed. 3.The sentence imposed for the offence of grievous bodily harm is set aside and instead a sentence of three years imprisonment is imposed. 4.The sentence imposed for the offence of attempted armed robbery is set aside and instead it is ordered that the applicant is sentenced to two years imprisonment to be served cumulatively upon the sentence imposed for the offence of grievous bodily harm. 5.The date the applicant is eligible for parole is fixed at 10 July 2010. 6.The applicant has been held in custody on the offence of attempted armed robbery between 10 November 2008 and 19 June 2009, a period of 221 days, and this is deemed time already served under the sentence for the offence of attempted armed robbery. 7.The order in respect of the summary offence of evading a taxi fare, namely, the entry of a conviction without further punishment, is confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to one count of doing grievous bodily harm; one count of attempted armed robbery; and a summary charge of evading a taxi fare – the applicant was sentenced to two cumulative sentences, totalling seven years imprisonment suspended at some difficult to determine date – the respondent conceded that the structure of the sentences imposed was problematic and that the applicant would need to be re-sentenced – what is the appropriate sentence Penalties and Sentences Act 1992 (Qld), s 144 Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited R v Kinersen-Smith & Connor; ex parte A-G (Qld)[2009] QCA 153, cited R v Price [2006] QCA 180, cited
COUNSEL:	H Fong for the applicant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent