R v Hawton

Case [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…

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Details
AGLC
R v Hawton [2009] QCA 248
Case
[2009] QCA 248
Decision Date

CaseChat Overview and Summary

In the case of R v Hawton, the appellant appealed against his conviction and sentence following a trial in which he was found guilty of two counts of assaulting a police officer acting in the execution of duty. The appeal was heard in the Queensland Court of Appeal. The primary judge directed the jury regarding a potential defence under section 31(1)(c) of the Criminal Code 1899 (Qld) but did not address section 25 of the Code. The appellant argued that the primary judge erred in ruling that section 25 did not apply and in failing to direct the jury in terms of that section. Additionally, the appellant contended that the sentences imposed were manifestly excessive due to the setting of parole release dates at the end of the 12-month terms.

The court examined whether the primary judge erred in not directing the jury on section 25 of the Code and if this omission constituted a misdirection. The court also considered whether the sentences were manifestly excessive. In relation to the potential defence under section 31(1)(c), the court found that the primary judge did not err in ruling that section 25 was not applicable. The court reasoned that section 25 was concerned with defences of insanity or unsoundness of mind, which were not relevant to the facts of the case. Regarding the sentence, the court determined that the imposition of parole release dates did not render the sentences manifestly excessive. The court concluded that the sentences were within the appropriate range for the offences committed.

The appeal against the conviction was dismissed as the court found no error in the primary judge's direction to the jury. The application for leave to appeal against the sentence was also dismissed, as the court held that the sentences were not manifestly excessive. The orders of the court were to dismiss the appeal against conviction and the application for leave to appeal against the sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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