R v Hardie - [2025] QCA 24

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hardie [2025] QCA 24

PARTIES:

R
v
HARDIE, Andrew Stewart
(applicant)

FILE NO/S:

CA No 250 of 2024
DC No 209 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton – Date of Sentence: 24 October 2024 (Clarke DCJ)

DELIVERED ON:

11 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2025

JUDGES:

Boddice and Brown JJA and Gotterson AJA

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of doing grievous bodily harm to the complainant in contravention of s 320 of the Criminal Code (Qld) – where the applicant is not an Australian citizen – where the learned trial judge ordered that the applicant be imprisoned for a period of two years and six months to be suspended after service of six months, for an operational period of two years and six months – where the sentence enlivens s 501(3A) of the Migration Act 1958 (Cth) which mandates the cancellation of the applicant’s visa – whether the sentence imposed was manifestly excessive in circumstances where the exposure to deportation consequent upon a visa cancellation was not raised at sentence

Migration Act 1958 (Cth), s 501(3A), s 501CA

R v Chitty; Ex parte Attorney-General (Qld)[2021] QCA 2, followed
R v Iese[2017] QCA 68, distinguished
R v Noone[2021] QCA 23, followed
R v Norris; Ex parte Attorney-General [2018] 2 Qd R 420; [2018] QCA 27, cited
R v Stringer[2014] QCA 342, followed

COUNSEL:

M J Hynes for the applicant
M A Gawrych for the respondent

SOLICITORS:

McGinness & Associates Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

BODDICE JA: I agree with the reasons of Gotterson AJA.
BROWN JA: I agree with Gotterson AJA.
GOTTERSON AJA: The applicant, Andrew Stewart Hardie, was indicted on a single count that on 30 September 2023 at Lammermoor he unlawfully did grievous bodily harm to the complainant, Lee John Pessall in contravention of s 320 of the Criminal Code (Qld). On 24 October 2024, at the District Court at Rockhampton, the applicant pleaded guilty before Judge Clarke. Having heard submissions on sentence on behalf of the Crown and the applicant, who was legally represented, his Honour ordered that he be imprisoned for a period of two years and six months to be suspended after service of six months, for an operational period of two years and six months. A conviction was recorded.
On 21 November 2024, the applicant filed an application for leave to appeal to this Court against the sentence. The application[1] was filed by solicitors who were not the solicitors who had acted for the applicant at the sentence hearing. The sole ground of appeal is that the sentence imposed is manifestly excessive.
[1]AB 1-2.
Circumstances of the offending
The…

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 Hardie

Details

AGLC: R v Hardie [2025] QCA 24
Case: [2025] QCA 24
Decision Date: 11 March 2025

CaseChat Overview and Summary

In the case of R v Hardie, the applicant, a non-citizen, was convicted of causing grievous bodily harm in contravention of s 320 of the Criminal Code (Qld). The applicant was sentenced by the learned trial judge to imprisonment for a period of two years and six months, to be suspended after service of six months, for an operational period of two years and six months. This sentence activated s 501(3A) of the Migration Act 1958 (Cth) which mandates the cancellation of the applicant’s visa, leading to the applicant’s potential deportation. The applicant sought leave to appeal against the sentence on the basis that it was manifestly excessive or inadequate, particularly as the exposure to deportation was not raised at the time of sentencing.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, given that the potential consequence of deportation due to visa cancellation was not considered during the sentencing process. The court had to determine whether the failure to consider this consequence warranted interference with the sentence imposed. The court also had to consider whether the new evidence presented by the applicant, an affidavit sworn by the applicant on 7 January 2025, was sufficient to warrant the formation of an opinion by the court that some other sentence should have been passed.

The court concluded that the sentence was not manifestly excessive or inadequate. The judge had carefully considered the circumstances of the case, including the nature of the offence, the applicant’s early plea, and the mitigating factors such as the applicant's remorse, employment history, and low risk of reoffending. The court noted that the sentencing judge had not overlooked the potential consequence of deportation but had balanced it against the need for a condign and deterrent sentence. The court found that the new evidence did not provide a basis to form an opinion that some other sentence should have been passed. Consequently, the application for leave to appeal was refused.

There were no specific orders made in this case beyond the refusal of the application for leave to appeal.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

His Honour described the sentence that he was about to impose as “just”.[9] He explained his reasoning to it in the following terms:[10]“Although not mandated by any means, the courts have long denounced alcohol-fuelled episodes of gratuitous violence. The courts have long considered the resultant impact or consequences as informing the need for a condign or deterrent sentence, including cases such as Amituanai and Brand, which are referred to in the cases of Chitty and Noone to which I have been referred. The submission on behalf of the prosecution is that on a comparison of those cases and your case – are that you have exposed yourself to a sentence of up to two and a-half years imprisonment and that I should set your parole release date or suspension point at the customary one-third mark, which is, again, not mandated but commonly imposed to record the cooperation that a plea of guilty offers to the criminal justice system.Ms Marsden has said absolutely everything that could be said for you. She implores me not to send you to prison today. She confirms that your partner is in support and that your relationship has been long-term and that you are both in employment. Apart from your early plea, Ms Marsden confirms that you are remorseful, which is confirmed by the references; that you are willing to offer an apology but have been unable to do so; that you are willing to provide some recompense, although I do not understand that to have been done or made to be available, for that. I was not told about that. She confirms that you appreciate that you would benefit from some treatment, although you have not undertaken any.Ms Marsden confirms that you, in the opinion of the report writer, present as a low risk for reoffending, that this was a single blow. You did not go on with your attack upon this man. You have a good employment record and are currently in employment. It is submitted that either I should wholly suspend the sentence or order your immediate release to parole. I appreciate the force and thrust of the submissions and, of course, imposing sentence on an offender like you is never as easy task, especially someone who has had a blameless life to this point in time. I have to be guided by the comparable decisions, which are called that because I must compare them to your case, and, of course, there must be some consistency in sentencing. You heard the discussion about what occurred in the matter of Chitty.”[9]ST 1-4 ll 17-18; AB 26.[10]ST 1-3 l 31; AB 25 – ST 1-4 l 15; AB 26.New evidence At the hearing of application for leave to appeal, counsel for the applicant, who was not the counsel who had appeared for the applicant on sentence, sought leave to rely on an affidavit sworn by his client on 7 January 2025. This application was unopposed[11] and leave to read and file the affidavit was granted.[11]In written submissions, the respondent submitted that an order granting the application should be made. It is evident from the way this application for leave to appeal has been argued that by not opposing the application for leave with respect to the affidavit, the respondent did not mean to concede that the new evidence justified the forming of an opinion by this Court for the purposes of s 668E(3) of the Criminal Code (Qld) that some other sentence is warranted and should have been passed in this case. The apparent purpose of the respondent’s approach was, it appears, to facilitate argument as to whether or not such an opinion should be formed.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hardie [2025] QCA 24
PARTIES:	R v HARDIE, Andrew Stewart (applicant)
FILE NO/S:	CA No 250 of 2024 DC No 209 of 2024
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton – Date of Sentence: 24 October 2024 (Clarke DCJ)
DELIVERED ON:	11 March 2025
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2025
JUDGES:	Boddice and Brown JJA and Gotterson AJA
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of doing grievous bodily harm to the complainant in contravention of s 320 of the Criminal Code (Qld) – where the applicant is not an Australian citizen – where the learned trial judge ordered that the applicant be imprisoned for a period of two years and six months to be suspended after service of six months, for an operational period of two years and six months – where the sentence enlivens s 501(3A) of the Migration Act 1958 (Cth) which mandates the cancellation of the applicant’s visa – whether the sentence imposed was manifestly excessive in circumstances where the exposure to deportation consequent upon a visa cancellation was not raised at sentence Migration Act 1958 (Cth), s 501(3A), s 501CA R v Chitty; Ex parte Attorney-General (Qld)[2021] QCA 2, followed R v Iese[2017] QCA 68, distinguished R v Noone[2021] QCA 23, followed R v Norris; Ex parte Attorney-General [2018] 2 Qd R 420; [2018] QCA 27, cited R v Stringer[2014] QCA 342, followed
COUNSEL:	M J Hynes for the applicant M A Gawrych for the respondent
SOLICITORS:	McGinness & Associates Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent