R v Hawton

[2009] QCA 248

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hawton [2009] QCA 248

PARTIES:

R
v
HAWTON, Michael John
(applicant/appellant)

FILE NO/S:

CA No 7 of 2009
DC No 940 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2009

JUDGES:

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

ORDERS:

1.   Appeal against conviction dismissed

2.   Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where appellant was convicted, after trial, of two counts of assaulting a police officer acting in the execution of duty – where primary judge directed the jury in relation to the existence of a possible defence under s 31(1)(c) Criminal Code 1899 (Qld) but did not direct the jury in respect of s 25 of the Code – whether primary judge erred in ruling s 25 of the Code did not apply and failing to direct the jury in terms of that section

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to 12 months imprisonment on each count – where sentences served concurrently with one another and with the unserved five month balance of a six month term of suspended imprisonment – where parole release dates were set as the last day of the 12 month terms – whether set parole release dates resulted in sentences being manifestly excessive

Corrective Services Act 2006 (Qld), s 184
Criminal Code 1899 (Qld), s 25, s 31(1)(a), s 31(1)(c), s 254
Penalties and Sentences Act 1992 (Qld), s 160B(3), s 160G(1)

Drew v Makita (Australia) PL[2009] QCA 66, cited
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited
R v Barry[2007] QCA 48, considered
R v Hamilton[2006] QCA 122, considered
R v Juric[2003] QCA 132, considered
R v Kitson[2008] QCA 86, cited
R v Mokoena [2009] QCA 36, cited
R v Reuben[2001] QCA 322, considered

COUNSEL:

D S Shepherd for the appellant
M J Copley SC for the respondent

SOLICITORS:

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

1. KEANE JA:  I have had the advantage of reading the reasons for judgment prepared by Muir JA.  I agree with those reasons and with the orders proposed by his Honour.

1. MUIR JA:  Introduction

The appellant was convicted on 11 December 2008 after a trial in the District Court of two counts of assaulting a police officer acting in the execution of duty.  He was sentenced on each count to 12 months imprisonment.  Those terms were ordered to be served concurrently with each…