R v Hamilton - [2006] QCA 122

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hamilton [2006] QCA 122

PARTIES:

R
v
HAMILTON, Glen Andrew
(applicant)

FILE NO/S:

CA No 336 of 2005
DC No 460 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

21 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2006

JUDGES:

Jerrard JA, Fryberg and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed. A warrant for the applicant’s arrest should issue, to lie in the registry for seven days before execution

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – where applicant convicted of two counts of serious assault – where applicant assaulted a police officer by punching him – where applicant assaulted a police officer by spitting on him – where applicant believed police officer was assaulting his brother – whether sentencing judge failed to give proper weight to certain mitigating factors in the applicant’s favour – whether sentence was manifestly excessive

R v Mathieson [2005] QCA 313; CA No 199 of 2005, 26 August 2005, considered
R v Reuben [2001] QCA 322; CA No 99 of 2001, 7 August

2001, considered

COUNSEL:

S T Courtney for the applicant

L J Clare for the respondent

SOLICITORS:

Noel Woodall & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: In this application I have had the benefit of reading the reasons for judgment and orders proposed by Fryberg J, and I respectfully agree with those.

FRYBERG J: The applicant seeks leave to appeal against a sentence of imprisonment for nine months, suspended after serving three months, for an operational period of 12 months. The sentence was imposed in the District Court on 12 December 2005 after the applicant pleaded guilty to two counts of assaulting a police officer in the execution of his duty.

The circumstances of the offences were set out in a statement of agreed facts. At approximately 11.40 pm on Saturday 13 April 2005, police were called to a disturbance outside the Cooroy Victory Hotel on Maple Street, Cooroy. On arrival, police observed a large number of people involved in verbal and physical altercations. After repeated warnings from police, the applicant's younger brother, Ian Hamilton, was arrested for creating a public nuisance. The applicant immediately told police, “Fuck off. Don't touch my brother.” Ian Hamilton then ran from the scene. Police chased after him and he was apprehended 50 metres down the street. As police were attempting to handcuff him, the applicant charged at police, running at full pace towards where his brother was being arrested. The applicant swung a number of punches, hitting Constable Alexander in the head and upper torso (count one). The applicant was wrestled to the ground and then handcuffed. He was screaming abuse and struggling violently 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 [2006] QCA 122
Case: [2006] QCA 122
Decision Date: 21 April 2006

CaseChat Overview and Summary

The case of R v Hamilton involved an appeal against the sentence imposed on the applicant, who had been convicted of two counts of serious assault against police officers. The applicant had punched and spat on a police officer, actions which were driven by a mistaken belief that the officer was assaulting his brother. The applicant sought a reduction in sentence, arguing that the sentencing judge had failed to appropriately consider certain mitigating factors and that the sentence was manifestly excessive. The appeal was heard in the relevant court, where the legal issues centred on the appropriateness of the sentence and the consideration of mitigating factors.

The primary legal issues that the court needed to address were whether the sentencing judge had adequately taken into account the mitigating factors presented and whether the sentence imposed was manifestly excessive. The applicant contended that the sentencing judge did not sufficiently weigh the mitigating factors, which included the applicant's otherwise good character, the impact of the events on the applicant's mental state, and the influence of alcohol at the time of the offences. Furthermore, the applicant argued that the sentence was disproportionately severe given the circumstances and the nature of the assaults.

The court meticulously reviewed the sentencing process and examined the mitigating factors presented. It found that the sentencing judge had indeed considered the mitigating factors but had appropriately balanced them against the gravity of the offences and the need to protect the community. The court held that the sentence was not manifestly excessive, given the serious nature of the assaults on police officers. Consequently, the appeal was dismissed, and an order was made for a warrant to be issued for the applicant's arrest, to remain in the registry for seven days before execution.

Orders

Orders of the court

Application dismissed. A warrant for the applicant’s arrest should issue, to lie in the registry for seven days before execution

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 Hamilton [2006] QCA 122
PARTIES:	R v HAMILTON, Glen Andrew (applicant)
FILE NO/S:	CA No 336 of 2005 DC No 460 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	21 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2006
JUDGES:	Jerrard JA, Fryberg and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed. A warrant for the applicant’s arrest should issue, to lie in the registry for seven days before execution
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – where applicant convicted of two counts of serious assault – where applicant assaulted a police officer by punching him – where applicant assaulted a police officer by spitting on him – where applicant believed police officer was assaulting his brother – whether sentencing judge failed to give proper weight to certain mitigating factors in the applicant’s favour – whether sentence was manifestly excessive R v Mathieson [2005] QCA 313; CA No 199 of 2005, 26 August 2005, considered R v Reuben [2001] QCA 322; CA No 99 of 2001, 7 August 2001, considered
COUNSEL:	S T Courtney for the applicant L J Clare for the respondent
SOLICITORS:	Noel Woodall & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent