R v Hamstra - [2020] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hamstra [2020] QCA 185

PARTIES:

R
v
HAMSTRA, Paul
(applicant)

FILE NO/S:

CA No 142 of 2020
DC No 233 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 26 June 2020 (Muir DCJ)

DELIVERED ON:

Date of Orders: 26 August 2020
Date of Publication of Reasons: 4 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2020

JUDGES:

Sofronoff P and Fraser and McMurdo JJA

ORDERS:

Date of Orders: 26 August 2020

1.   Leave to appeal is granted.

2.   The appeal is allowed.

3.   On count 1, the sentence is varied to 62 days' imprisonment.

4.   On count 2, the sentence is varied so that it is suspended immediately.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was originally charged with two counts of arson – where the applicant pleaded guilty to one charge of wilful damage, relating to damage to a playground, and another charge of wilfully and unlawfully setting fire to something situated so that a building is likely to catch fire from it under s 462 of the Criminal Code (Qld) – where the applicant was sentenced to imprisonment for three years to be suspended after six months – where the applicant’s two co-offenders were charged with arson under s 461 of the Code – where the two co-offenders offered assistance under s 13A of the Penalties and Sentences Act 1992 (Qld) – where the two co-offenders were both sentenced to three years’ imprisonment, wholly suspended with an operational period of four years – where it was submitted below by counsel that the applicant’s sentence had to achieve parity with the sentences imposed on his co-offenders – where the learned sentencing judge accepted this submission – whether the learned sentencing judge’s sentencing discretion miscarried

Criminal Code (Qld), s 461, s 462

COUNSEL:

M J Copley QC for the applicant
D Nardone for the respondent

SOLICITORS:

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

SOFRONOFF P: Late on the night of 20 April 2016 the applicant, and two friends, Rodgers and Coleman, drove to a park at Tallebudgera where they entered the playground area. The applicant collected some tinder and put it on a wooden footbridge which was part of the playground equipment, onto which he then poured an accelerant and lit it. He then poured accelerant onto the plastic slide which was attached to the structure and set fire to that also. The total fire damage thus caused by the applicant cost the local authority over $9,000.00.
A few days later, on 25 April 2016, on the applicant’s suggestion, he and three friends of his, Rodgers, Coleman and Plass, went to St Andrews Lutheran College at Tallebudgera. They had been students there and the applicant had left it in 2015. Rodgers found a traffic cone and…

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 Hamstra

Details

AGLC: R v Hamstra [2020] QCA 185
Case: [2020] QCA 185
Decision Date: 4 September 2020

CaseChat Overview and Summary

The applicant, Hamstra, appealed against the sentence imposed by the court. He was originally charged with two counts of arson but pleaded guilty to one charge of wilful damage and another charge of setting fire to something likely to cause a building to catch fire. Hamstra's co-offenders, who were charged with arson, offered assistance under the Penalties and Sentences Act 1992 (Qld) and received wholly suspended sentences. Hamstra's counsel argued that his sentence should achieve parity with his co-offenders, a submission which the learned sentencing judge accepted. Hamstra's appeal centred on whether the judge miscarried in their sentencing discretion.

The court examined whether the sentencing judge acted on the wrong principle when imposing the sentence on Hamstra. The key issue was whether the judge correctly balanced the principles of general and specific deterrence, punishment, and rehabilitation when imposing the sentence, considering the submissions on parity with co-offenders. The court noted that while parity was an important consideration, it was not the sole factor. The court had to consider the totality of the circumstances, including the nature of the offences, the culpability of the offender, and the impact of the offence on the community.

The court found that the learned sentencing judge had indeed acted on the wrong principle by placing undue emphasis on parity with co-offenders. The judge failed to adequately consider the totality of the circumstances, including the nature of the offences, the culpability of the offender, and the impact of the offence on the community. The court concluded that the sentencing discretion miscarried and allowed the appeal. The sentence was varied so that on count 1, Hamstra would serve 62 days' imprisonment, and on count 2, the sentence would be suspended immediately.

The court granted leave to appeal and allowed the appeal, varying the sentence as per the orders. Hamstra's sentence on count 1 was reduced to 62 days' imprisonment, and the sentence on count 2 was varied to be suspended immediately. The decision highlights the importance of considering the totality of the circumstances in sentencing, rather than placing undue emphasis on parity with co-offenders.

Orders

Orders of the court

Date of Orders: 26 August 2020

1. Leave to appeal is granted.

2. The appeal is allowed.

3. On count 1, the sentence is varied to 62 days' imprisonment.

4. On count 2, the sentence is varied so that it is suspended immediately.

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 Hamstra [2020] QCA 185
PARTIES:	R v HAMSTRA, Paul (applicant)
FILE NO/S:	CA No 142 of 2020 DC No 233 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 26 June 2020 (Muir DCJ)
DELIVERED ON:	Date of Orders: 26 August 2020 Date of Publication of Reasons: 4 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	26 August 2020
JUDGES:	Sofronoff P and Fraser and McMurdo JJA
ORDERS:	Date of Orders: 26 August 2020 1. Leave to appeal is granted. 2. The appeal is allowed. 3. On count 1, the sentence is varied to 62 days' imprisonment. 4. On count 2, the sentence is varied so that it is suspended immediately.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was originally charged with two counts of arson – where the applicant pleaded guilty to one charge of wilful damage, relating to damage to a playground, and another charge of wilfully and unlawfully setting fire to something situated so that a building is likely to catch fire from it under s 462 of the Criminal Code (Qld) – where the applicant was sentenced to imprisonment for three years to be suspended after six months – where the applicant’s two co-offenders were charged with arson under s 461 of the Code – where the two co-offenders offered assistance under s 13A of the Penalties and Sentences Act 1992 (Qld) – where the two co-offenders were both sentenced to three years’ imprisonment, wholly suspended with an operational period of four years – where it was submitted below by counsel that the applicant’s sentence had to achieve parity with the sentences imposed on his co-offenders – where the learned sentencing judge accepted this submission – whether the learned sentencing judge’s sentencing discretion miscarried Criminal Code (Qld), s 461, s 462
COUNSEL:	M J Copley QC for the applicant D Nardone for the respondent
SOLICITORS:	Nyst Legal for the applicant Director of Public Prosecutions (Queensland) for the respondent