R v Hawks - [2019] QCA 181

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hawks [2019] QCA 181

PARTIES:

R
v
HAWKS, Mark
(applicant)

FILE NO/S:

CA No 307 of 2018
DC No 29 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Dalby – Date of Sentence: 22 August 2018 (Horneman-Wren SC DCJ)

DELIVERED ON:

10 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2019

JUDGES:

Gotterson and Philippides JJA and Bradley J

ORDERS:

1.   The application for an extension of time in which the appeal against the sentence be granted.

2.   The appeal be allowed.

3.   The sentence imposed on 22 August 2018 be set aside and a term of seven years imprisonment be imposed cumulative on the sentence imposed on 8 April 2016.

4.   A parole eligibility date of 22 May 2021 be imposed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the applicant sought an extension of time to appeal against his sentence of seven years on the basis that the imposition of a cumulative sentence rendered the sentence manifestly excessive – where the applicant’s explanation for the delay and seeking an extension was that he only became aware of the applicability of the principle of totality after his imprisonment and required time to research and consider his position – where the applicant submitted that the trial judge did not take into account that he had already been sentenced for related offences on 4 October 2017 – whether it is in the interests of justice to grant the extension

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – OFFENCES AGAINST THE PERSON – GRIEVOUS BODILY HARM – where the sentencing judge erroneously calculated the commencement date of the index sentence to be the date after the 4 October 2017 sentence expired – where the sentence ought to be served cumulative on the sentence imposed on 9 April 2016, which expires on 29 August 2018 – where the respondent accepts that leave should be granted but that the appeal should be dismissed because the sentencing judge also had a discretion, pursuant to s 156 of the Penalties and Sentences Act 1992 (Qld) to order that the sentence be imposed cumulatively on the expiration of the “period of imprisonment”, being 3 October 2020 – whether the Court should re-exercise the sentencing discretion to correct the error of the sentencing judge

Corrective Services Act 2006 (Qld), s 205, s 209
Penalties and Sentences Act 1992 (Qld), s 156, s 156A

R v Dancey[2013] QCA 135, discussed
R v Lacey[2013] QCA 318, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
R v Wiggins[2003] QCA 367, discussed

COUNSEL:

The applicant appeared on his own behalf
C W Wallis for the respondent

SOLICITORS:

The applicant appeared on his own…

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 Hawks

Details

AGLC: R v Hawks [2019] QCA 181
Case: [2019] QCA 181
Decision Date: 10 September 2019

CaseChat Overview and Summary

The applicant sought an extension of time to appeal against his sentence of seven years, imposed on 22 August 2018, on the basis that the imposition of a cumulative sentence rendered it manifestly excessive. The applicant argued that the trial judge did not consider that he had already been sentenced for related offences on 4 October 2017. The court was required to decide whether it was in the interests of justice to grant the extension and whether the sentence should be set aside.

The court found that it was in the interests of justice to grant the extension of time. The applicant had provided a reasonable explanation for the delay in seeking the extension, as he only became aware of the applicability of the principle of totality after his imprisonment and required time to research and consider his position. The court also found that the sentencing judge had erroneously calculated the commencement date of the index sentence to be the date after the 4 October 2017 sentence expired. The sentence should have been served cumulative on the sentence imposed on 8 April 2016, which expires on 29 August 2018.

The court allowed the appeal and set aside the sentence imposed on 22 August 2018. A term of seven years imprisonment was imposed cumulative on the sentence imposed on 8 April 2016. The court also imposed a parole eligibility date of 22 May 2021. The respondent accepted that leave should be granted but that the appeal should be dismissed because the sentencing judge also had a discretion, pursuant to section 156 of the Penalties and Sentences Act 1992 (Qld) to order that the sentence be imposed cumulatively on the expiration of the “period of imprisonment”, being 3 October 2020. The court found that the sentencing judge had failed to exercise the discretion properly and that it was appropriate to re-exercise the discretion to correct the error of the sentencing judge.

Orders

Orders of the court

1. The application for an extension of time in which the appeal against the sentence be granted.

2. The appeal be allowed.

3. The sentence imposed on 22 August 2018 be set aside and a term of seven years imprisonment be imposed cumulative on the sentence imposed on 8 April 2016.

4. A parole eligibility date of 22 May 2021 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hawks [2019] QCA 181
PARTIES:	R v HAWKS, Mark (applicant)
FILE NO/S:	CA No 307 of 2018 DC No 29 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Dalby – Date of Sentence: 22 August 2018 (Horneman-Wren SC DCJ)
DELIVERED ON:	10 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	14 March 2019
JUDGES:	Gotterson and Philippides JJA and Bradley J
ORDERS:	1. The application for an extension of time in which the appeal against the sentence be granted. 2. The appeal be allowed. 3. The sentence imposed on 22 August 2018 be set aside and a term of seven years imprisonment be imposed cumulative on the sentence imposed on 8 April 2016. 4. A parole eligibility date of 22 May 2021 be imposed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the applicant sought an extension of time to appeal against his sentence of seven years on the basis that the imposition of a cumulative sentence rendered the sentence manifestly excessive – where the applicant’s explanation for the delay and seeking an extension was that he only became aware of the applicability of the principle of totality after his imprisonment and required time to research and consider his position – where the applicant submitted that the trial judge did not take into account that he had already been sentenced for related offences on 4 October 2017 – whether it is in the interests of justice to grant the extension CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – OFFENCES AGAINST THE PERSON – GRIEVOUS BODILY HARM – where the sentencing judge erroneously calculated the commencement date of the index sentence to be the date after the 4 October 2017 sentence expired – where the sentence ought to be served cumulative on the sentence imposed on 9 April 2016, which expires on 29 August 2018 – where the respondent accepts that leave should be granted but that the appeal should be dismissed because the sentencing judge also had a discretion, pursuant to s 156 of the Penalties and Sentences Act 1992 (Qld) to order that the sentence be imposed cumulatively on the expiration of the “period of imprisonment”, being 3 October 2020 – whether the Court should re-exercise the sentencing discretion to correct the error of the sentencing judge Corrective Services Act 2006 (Qld), s 205, s 209 Penalties and Sentences Act 1992 (Qld), s 156, s 156A R v Dancey[2013] QCA 135, discussed R v Lacey[2013] QCA 318, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited R v Wiggins[2003] QCA 367, discussed
COUNSEL:	The applicant appeared on his own behalf C W Wallis for the respondent
SOLICITORS:	The applicant appeared on his own…