R v Hatten - [2007] QCA 46

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hatten [2007] QCA 46

PARTIES:

R
v
HATTEN, Sean Stephen
(applicant/appellant)

FILE NO/S:

CA No 43 of 2006
SC No 323 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2007

JUDGES:

McMurdo P, Holmes JA and Mullins J
Judgment of the Court

ORDER:

1. Grant leave to appeal against sentence
2. Allow the appeal and set aside the sentence
3. Remit the matter to the Trial Division of the Supreme Court for a hearing de novo of the sentence to be imposed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where the applicant assaulted and stabbed a woman in bushland – where the applicant had previous convictions for rape and assault – where sentencing judge determined on the basis of psychiatric and psychological evidence that the applicant was a serious danger to the community and imposed indefinite sentence – where sentencing judge also imposed nominal sentence of 15 years – whether the sentencing judge failed to have regard to the protective effect of the nominal sentence in considering risk to the community

Penalties and Sentences Act 1992 (Qld), s 163(1), s 163(2), s 163(3)(a), s 163(3)(b), s 163(4)

Buckley v The Queen [2006] HCA 7; (2006) 224 ALR 416, applied
R v McQuire & Porter; ex p A-G (Qld), unreported, Court of Criminal Appeal, Qld, CA No 70 and 71 of 1999, 8 June 1999, followed

COUNSEL:

A Moynihan SC for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

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

: THE COURTThe applicant for leave to appeal against sentence pleaded guilty to one count of attempted murder. An indefinite sentence of imprisonment was imposed on him, pursuant to s 163(1) of the Penalties and Sentences Act1992 (Qld), on a finding that he was a “serious danger to the community”. As is required by s 163(2), a nominal sentence was imposed: one of 15 years imprisonment.

Counsel for the applicant on the sentencing hearing did not, on instructions, contest the imposing of an indefinite sentence, confining himself to a submission that because of his client’s abnormal personality and limited intellectual functioning, the nominal sentence should not be greater than 12 years imprisonment. In this Court, however, the applicant challenged the indefinite sentence, but not the nominal term of 15 years. He argued that the learned sentencing judge erred in finding that he was a serious danger to the community, because he failed to give sufficient weight to the protective effect of the finite 15 year term of imprisonment in considering the evidence relating to the risk of future 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 Hatten

Details

AGLC: R v Hatten [2007] QCA 46
Case: [2007] QCA 46
Decision Date: 23 February 2007

CaseChat Overview and Summary

The appellant, Hatten, was convicted of assault and stabbing a woman in bushland. The appellant had previous convictions for rape and assault. The sentencing judge imposed an indefinite sentence on the basis of psychiatric and psychological evidence that the appellant was a serious danger to the community. The judge also imposed a nominal sentence of 15 years. The appellant appealed against the sentence, arguing that the sentencing judge failed to have regard to the protective effect of the nominal sentence in considering the risk to the community.

The court had to determine whether the sentencing judge failed to have regard to the protective effect of the nominal sentence in considering the risk to the community. The court noted that the sentencing judge had considered the appellant's previous convictions and the psychiatric and psychological evidence in imposing the sentence. However, the court held that the sentencing judge failed to have regard to the protective effect of the nominal sentence in considering the risk to the community. The court held that the sentencing judge should have considered the nominal sentence as a factor in determining the risk to the community.

The court granted leave to appeal against the sentence. The court allowed the appeal and set aside the sentence. The court remitted the matter to the Trial Division of the Supreme Court for a hearing de novo of the sentence to be imposed. The court held that the sentencing judge failed to have regard to the protective effect of the nominal sentence in considering the risk to the community. The court held that the sentencing judge should have considered the nominal sentence as a factor in determining the risk to the community. The court held that the sentence was manifestly excessive and should be set aside.

Orders

Orders of the court

1. Grant leave to appeal against sentence

2. Allow the appeal and set aside the sentence

3. Remit the matter to the Trial Division of the Supreme Court for a hearing de novo of the sentence to be imposed

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hatten [2007] QCA 46
PARTIES:	R v HATTEN, Sean Stephen (applicant/appellant)
FILE NO/S:	CA No 43 of 2006 SC No 323 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2007
JUDGES:	McMurdo P, Holmes JA and Mullins J Judgment of the Court
ORDER:	1. Grant leave to appeal against sentence 2. Allow the appeal and set aside the sentence 3. Remit the matter to the Trial Division of the Supreme Court for a hearing de novo of the sentence to be imposed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where the applicant assaulted and stabbed a woman in bushland – where the applicant had previous convictions for rape and assault – where sentencing judge determined on the basis of psychiatric and psychological evidence that the applicant was a serious danger to the community and imposed indefinite sentence – where sentencing judge also imposed nominal sentence of 15 years – whether the sentencing judge failed to have regard to the protective effect of the nominal sentence in considering risk to the community Penalties and Sentences Act 1992 (Qld), s 163(1), s 163(2), s 163(3)(a), s 163(3)(b), s 163(4) Buckley v The Queen [2006] HCA 7; (2006) 224 ALR 416, applied R v McQuire & Porter; ex p A-G (Qld), unreported, Court of Criminal Appeal, Qld, CA No 70 and 71 of 1999, 8 June 1999, followed
COUNSEL:	A Moynihan SC for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent