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R v Hartwig; Ex parte

R v Hartwig; Ex parte

Case [2013] QCA 295 4 October 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Hartwig; Ex parte Attorney-General (Qld) [2013] QCA 295

PARTIES:

R
v
HARTWIG, Wayne Charles
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 133 of 2013
MC No 296 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 669A Criminal Code

ORIGINATING COURT:

Magistrates Court at Caboolture

DELIVERED ON:

4 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2013

JUDGES:

Muir and Gotterson JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.      The appeal be allowed.

2.      The sentences imposed on 30 April 2013, be varied by increasing the sentence imposed for the offence of unlawfully wounding an alpaca by night to six months imprisonment and by suspending both sentences of imprisonment from that date and by ordering that the respondent must not commit another offence punishable by imprisonment within a period of 18 months from the date of this order if to avoid being dealt with for the suspended term of imprisonment.

3. The respondent be released from the date of this order under the supervision of an authorised Corrective Services officer for a period of 18 months and must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld), as well as the requirement that he submit to such psychiatric or psychological treatment as may be directed by a Corrective Services officer, and report within 48 hours to an authorised Corrective Services officer at Caboolture.

4.      The parole order is revoked.

5.      The restitution order is confirmed.

6.      The prohibition order is confirmed.

7. The respondent’s legal representatives forthwith give the respondent an explanation in terms of s 95 of the Penalties and Sentences Act 1992 (Qld).

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where CCTV footage showed the 19 year old respondent and his 16 year old co-offender throwing objects at and repeatedly striking two alpacas used in the public education system – where one alpaca was found dead and another had to be euthanised – where the respondent was sentenced to six months imprisonment for wilfully and unlawfully killing an alpaca by night and three months imprisonment for wilfully and unlawfully wounding an alpaca by night – where the sentencing magistrate imposed a restitution order and ordered that the respondent be released on parole immediately – where the co-offender was sentenced to 12 months probation and 80 hours community service – where the appellant submits that the sentencing magistrate erred in not ordering a period of actual incarceration – where the appellant submits that the sentencing magistrate was overly influenced by the non-custodial sentence imposed on the juvenile co-offender and that considerations of parity should have been given little weight due to the application of differing sentencing regimes – where the respondent contends that the imposition of a short term of…

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 Hartwig; Ex parte

Details

AGLC: R v Hartwig; Ex parte Attorney-General (Qld) [2013] QCA 295
Case: [2013] QCA 295
Decision Date: 4 October 2013

CaseChat Overview and Summary

In the case before the court, the Crown appeals against the sentence imposed on the 19-year-old respondent for his involvement in the unlawful killing and wounding of alpacas, while the respondent contends that the sentence imposed is inherently undesirable. The respondent and his 16-year-old co-offender were caught on CCTV footage throwing objects at and repeatedly striking two alpacas, resulting in the death of one alpaca and the euthanisation of another. The respondent was sentenced to six months imprisonment for wilfully and unlawfully killing an alpaca by night and three months imprisonment for wilfully and unlawfully wounding an alpaca by night. The sentencing magistrate also imposed a restitution order and ordered that the respondent be released on parole immediately, while the co-offender was sentenced to 12 months probation and 80 hours of community service.

The Crown submits that the sentencing magistrate erred in not ordering a period of actual incarceration and that the magistrate was overly influenced by the non-custodial sentence imposed on the juvenile co-offender. The Crown argues that considerations of parity should have been given little weight due to the application of differing sentencing regimes. The respondent contends that the imposition of a short term of actual imprisonment is inherently undesirable. The court was required to determine whether the sentencing magistrate erred in regarding considerations of parity as particularly important in circumstances where co-offenders are sentenced under different statutory regimes and whether the sentences imposed were manifestly inadequate.

The court found that the sentencing magistrate erred in not imposing a period of actual incarceration and that the sentences imposed were manifestly inadequate. The court held that the sentencing magistrate gave undue weight to considerations of parity, as the co-offender was sentenced under a different statutory regime. The court noted that the respondent's offending was particularly egregious, and the sentence imposed did not adequately reflect the seriousness of the offence. The court allowed the appeal, varied the sentences imposed, and ordered that the respondent be released from the date of the order under the supervision of an authorised Corrective Services officer for a period of 18 months, among other things. The court also revoked the parole order and confirmed the restitution and prohibition orders.

Orders

Orders of the court

1. The appeal be allowed.

2. The sentences imposed on 30 April 2013, be varied by increasing the sentence imposed for the offence of unlawfully wounding an alpaca by night to six months imprisonment and by suspending both sentences of imprisonment from that date and by ordering that the respondent must not commit another offence punishable by imprisonment within a period of 18 months from the date of this order if to avoid being dealt with for the suspended term of imprisonment.

3. The respondent be released from the date of this order under the supervision of an authorised Corrective Services officer for a period of 18 months and must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld), as well as the requirement that he submit to such psychiatric or psychological treatment as may be directed by a Corrective Services officer, and report within 48 hours to an authorised Corrective Services officer at Caboolture.

4. The parole order is revoked.

5. The restitution order is confirmed.

6. The prohibition order is confirmed.

7. The respondent’s legal representatives forthwith give the respondent an explanation in terms of s 95 of the Penalties and Sentences Act 1992 (Qld).

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

Full text does not contain this section.

Citations

AGLC Citation

R v Hartwig; Ex parte Attorney-General (Qld) [2013] QCA 295

Most Recent Citation

Van Der LAAN v Lang [2023] WASC 200

Cases citing this decision · 2 of 2 shown

Van Der LAAN v Lang
[2023] WASC 200 Para 3

…6 months' imprisonment for both charges and by suspending both sentences for a period of 18 months. [58] R v Hartwig; Ex Parte Attorney-General (Qld) [2013] QCA 295.…
R v Page
[2022] ACTCA 65 Para 1

…nders are generally undesirable: see Lilico v Meyers [2003] QCA 16; 137 A Crim R 473 at [32] and [62]; R v Hartwig; Ex parte Attorney-General (Qld) [2013] QCA 295; 235 A Crim R 316 at [33]. In our opinion, requiring the offender to serve a short period of actual imprisonment would be be counterproductive to his r…

View all 2 citing cases →

Cases cited in this decision · 14 of 14 shown

R v DAZ
[2012] QCA 31 Para 1

…ney-General (No 2) [2011] 1 Qd R 439 at [153]; R v Maygar; ex parte A‑G (Qld) ; R v WT; ex parte A‑G (Qld) [2007] QCA 310 at [57]–[60]; R v DAZ [2012] QCA 31 at [44].…
R v Kuzmanovski; ex parte
[2012] QCA 19

…d R v KU, ex parte Attorney-General (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited R v Kuzmanovski; ex parte A-G (Qld) [2012] QCA 19, cited R v LY [2008] QCA 76, considered R v Maygar; ex parte A-G (Qld) ; R v WT; ex parte A-G (Qld) [2007] QCA 310, considered R v Neumann, ex parte Attorney-General [2007] 1 Qd R…
R v KU; ex parte Attorney-General (No 2)
[2008] QCA 154

…r [1970] QWN 20, cited R v Kelly [2006] QCA 467, considered R v KU, ex parte Attorney-General (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited R v Kuzmanovski; ex parte A-G (Qld) [2012] QCA 19, cited R v LY [2008] QCA 76, considered R v Maygar; ex parte A-G (Qld) ; R v WT; ex parte A-G (Qld) [2007] QCA 310, consid…
R v Romano
[2008] QCA 140 Para 1

…the submission that the subject sentences were not manifestly inadequate and were within the range of a properly exercised sentencing discretion. [2][2008] QCA 140. [3][2006] QCA 467. [4][2007] QDC 282.…
R v LY
[2008] QCA 76

…General (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited R v Kuzmanovski; ex parte A-G (Qld) [2012] QCA 19, cited R v LY [2008] QCA 76, considered R v Maygar; ex parte A-G (Qld) ; R v WT; ex parte A-G (Qld) [2007] QCA 310, considered R v Neumann, ex parte Attorney-General [2007] 1 Qd R 53; [2005] QCA 362, cited R…
R v. Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld)
[2007] QCA 310 Para 1

…gimes.[1] [1]See R v KU, ex parte Attorney-General (No 2) [2011] 1 Qd R 439 at [153]; R v Maygar; ex parte A‑G (Qld) ; R v WT; ex parte A‑G (Qld) [2007] QCA 310 at [57]–[60]; R v DAZ [2012] QCA 31 at [44].…
Towers-Hammond v Burnett
[2007] QDC 282 Para 1

…nces were not manifestly inadequate and were within the range of a properly exercised sentencing discretion. [2][2008] QCA 140. [3][2006] QCA 467. [4][2007] QDC 282.…
R v Kelly
[2006] QCA 467 Para 1

…t the subject sentences were not manifestly inadequate and were within the range of a properly exercised sentencing discretion. [2][2008] QCA 140. [3][2006] QCA 467. [4][2007] QDC 282.…
R v Neumann; Ex parte Attorney-General (Qld)
[2005] QCA 362

…(Qld) ; R v WT; ex parte A-G (Qld) [2007] QCA 310, considered R v Neumann, ex parte Attorney-General [2007] 1 Qd R 53; [2005] QCA 362, cited R v Romano [2008] QCA 140, considered R v Tuki [2004] QCA 482, cited R v V; ex parte A-G (Qld) [2003] QCA 21, cited Towers-Hammond v Burnett [2007] QDC 282, considered COUN…
R v Tuki
[2004] QCA 482

…umann, ex parte Attorney-General [2007] 1 Qd R 53; [2005] QCA 362, cited R v Romano [2008] QCA 140, considered R v Tuki [2004] QCA 482, cited R v V; ex parte A-G (Qld) [2003] QCA 21, cited Towers-Hammond v Burnett [2007] QDC 282, considered COUNSEL: M R Byrne QC for the appellant C Chowdhury for the respondent SO…
R v v; Ex Parte A-G (Qld)
[2003] QCA 21 Para 1

…] R v Carlton; ex parte Attorney-General , unreported, Court of Criminal Appeal, Qld, CA No 289 of 1990, 26 November 1990; R v V; ex parte A- G (Qld) [2003] QCA 21 at [27].…
Lilico v Meyers
[2003] QCA 16

…3 FLR 433; [1978] FCA 16, cited Lahey v Sanderson [1959] Tas SR 17, considered Lilico v Meyers (2003) 137 A Crim R 473; [2003] QCA 16, cited R v Carlton; ex parte Attorney-General , unreported, Court of Criminal Appeal, Qld, CA No 289 of 1990, 26 November 1990, cited R v Crossley (1999) 106 A Crim R 80; [1999] Q…
R v Crossley
[1999] QCA 223

…eported, Court of Criminal Appeal, Qld, CA No 289 of 1990, 26 November 1990, cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited R v DAZ [2012] QCA 31, cited R v Draper [1970] QWN 20, cited R v Kelly [2006] QCA 467, considered R v KU, ex parte Attorney-General (No 2) [2011] 1 Qd R 439; [2008] QCA 154…
Channon v The Queen
[1978] FCA 16

…99 (Qld), s 468 Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 93(1), s 95 Channon v The Queen (1978) 33 FLR 433; [1978] FCA 16, cited Lahey v Sanderson [1959] Tas SR 17, considered Lilico v Meyers (2003) 137 A Crim R 473; [2003] QCA 16, cited R v Carlton; ex parte Attorney-General , unreported, Court of C…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
9(2)(a) 2 mentions (from Para 1)
Juvenile Justice Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Hartwig; Ex parte Attorney-General (Qld) [2013] QCA 295
PARTIES:	R v HARTWIG, Wayne Charles (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 133 of 2013 MC No 296 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Reference under s 669A Criminal Code
ORIGINATING COURT:	Magistrates Court at Caboolture
DELIVERED ON:	4 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2013
JUDGES:	Muir and Gotterson JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be allowed. 2. The sentences imposed on 30 April 2013, be varied by increasing the sentence imposed for the offence of unlawfully wounding an alpaca by night to six months imprisonment and by suspending both sentences of imprisonment from that date and by ordering that the respondent must not commit another offence punishable by imprisonment within a period of 18 months from the date of this order if to avoid being dealt with for the suspended term of imprisonment. 3. The respondent be released from the date of this order under the supervision of an authorised Corrective Services officer for a period of 18 months and must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld), as well as the requirement that he submit to such psychiatric or psychological treatment as may be directed by a Corrective Services officer, and report within 48 hours to an authorised Corrective Services officer at Caboolture. 4. The parole order is revoked. 5. The restitution order is confirmed. 6. The prohibition order is confirmed. *7. The respondent’s legal representatives forthwith give the respondent an explanation in terms of s 95 of the Penalties and Sentences Act* 1992 (Qld).**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where CCTV footage showed the 19 year old respondent and his 16 year old co-offender throwing objects at and repeatedly striking two alpacas used in the public education system – where one alpaca was found dead and another had to be euthanised – where the respondent was sentenced to six months imprisonment for wilfully and unlawfully killing an alpaca by night and three months imprisonment for wilfully and unlawfully wounding an alpaca by night – where the sentencing magistrate imposed a restitution order and ordered that the respondent be released on parole immediately – where the co-offender was sentenced to 12 months probation and 80 hours community service – where the appellant submits that the sentencing magistrate erred in not ordering a period of actual incarceration – where the appellant submits that the sentencing magistrate was overly influenced by the non-custodial sentence imposed on the juvenile co-offender and that considerations of parity should have been given little weight due to the application of differing sentencing regimes – where the respondent contends that the imposition of a short term of…