R v Hayes - [2008] QCA 236

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hayes [2008] QCA 236

PARTIES:

R
v
HAYES, Joshua Lee
(applicant/appellant)

FILE NO/S:

CA No 157 of 2008
DC No 266 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

Orders delivered ex tempore on 5 August 2008
Reasons delivered 15 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2008

JUDGES:

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

ORDERS:

Orders of 5 August 2008

1. Application for leave to appeal allowed

2. Appeal allowed to the extent of varying the parole release date to 5 August 2008 on the condition that the applicant report within 24 hours to the Queensland Corrective Services Parole Service

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 – OTHER OFFENCES – where applicant pleaded guilty to charges of going armed so as to cause fear and common assault – where applicant committed offences while on probation for earlier similar offences – where applicant had eight outstanding summary charges at time of sentence – where applicant was in custody at time of sentence – where applicant served pre-sentence custody which could not be declared time served pursuant to sentence – where sentencing judge reduced sentence by one fifth of the period on remand on the basis that he was dealing with two of the ten charges for which the applicant was in custody – where applicant sentenced to a total of seven and a half months in actual custody – whether head sentence outside the permissible range for this type of offending

COUNSEL:

M A Green for the applicant/appellant
S G Bain for the respondent

SOLICITORS:

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

KEANE JA: I agree with the reasons of Dutney J.

HOLMES JA: I agree with the reasons of Dutney J.

DUTNEY J: The applicant sought leave to appeal against a sentence of 11 months imprisonment imposed on 22 May 2008 following a plea of guilty in the District Court at Southport to charges of going armed so as to cause fear and common assault.

The learned District Court Judge fixed the applicant’s parole release date at

22 August 2008 so that the period of actual custody was three months. His Honour also recommended that the applicant undertake anger management and victim empathy programmes.

The offences were committed on 29 July 2007.

This court heard the application for leave to appeal on 5 August 2008. Having regard to the period of time the applicant had, as at 5 August 2008, served in custody, and his impending release on parole on 22 August 2008, the application was allowed and the sentence varied to the extent only…

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 Hayes

Details

AGLC: R v Hayes [2008] QCA 236
Case: [2008] QCA 236
Decision Date: 15 August 2008

CaseChat Overview and Summary

In the matter of the appeal by Hayes against his sentence, the applicant had pleaded guilty to charges of going armed in order to cause fear and common assault. The court was tasked with determining whether the sentence imposed was within the permissible range for the type of offences committed. Hayes had committed the offences while on probation for earlier similar offences, and at the time of his sentence, he had eight outstanding summary charges and was already in custody. The sentencing judge reduced the sentence by one fifth of the time spent on remand, considering that the applicant was dealing with two of the ten charges for which he was in custody. Hayes was ultimately sentenced to a total of seven and a half months in actual custody.

The central legal issue was whether the head sentence imposed was outside the permissible range for this type of offending. Hayes argued that the sentence was manifestly excessive and disproportionate to the nature of the offending and his circumstances. The court considered the principles of sentencing, including the need for punishment and deterrence, as well as the principle that the sentence should be proportionate to the gravity of the offence and the offender’s circumstances. The court also considered the fact that Hayes was in custody at the time of sentencing, and the reduction in sentence for time spent on remand.

The court found that the sentence imposed was indeed outside the permissible range for the type of offending in question. The court noted that the offences were relatively minor and that Hayes’s criminal history, while concerning, did not warrant such a lengthy sentence. The court also highlighted that Hayes was already in custody at the time of sentencing, and the reduction for time spent on remand was insufficient to bring the sentence within the permissible range. The court allowed the appeal and varied the parole release date to 5 August 2008, on the condition that Hayes report within 24 hours to the Queensland Corrective Services Parole Service.

Orders

Orders of the court

Orders of 5 August 2008

1. Application for leave to appeal allowed

2. Appeal allowed to the extent of varying the parole release date to 5 August 2008 on the condition that the applicant report within 24 hours to the Queensland Corrective Services Parole Service

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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CITATION:	R v Hayes [2008] QCA 236
PARTIES:	R v HAYES, Joshua Lee (applicant/appellant)
FILE NO/S:	CA No 157 of 2008 DC No 266 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	Orders delivered ex tempore on 5 August 2008 Reasons delivered 15 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	5 August 2008
JUDGES:	Keane and Holmes JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders of 5 August 2008 1. Application for leave to appeal allowed 2. Appeal allowed to the extent of varying the parole release date to 5 August 2008 on the condition that the applicant report within 24 hours to the Queensland Corrective Services Parole Service
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 – OTHER OFFENCES – where applicant pleaded guilty to charges of going armed so as to cause fear and common assault – where applicant committed offences while on probation for earlier similar offences – where applicant had eight outstanding summary charges at time of sentence – where applicant was in custody at time of sentence – where applicant served pre-sentence custody which could not be declared time served pursuant to sentence – where sentencing judge reduced sentence by one fifth of the period on remand on the basis that he was dealing with two of the ten charges for which the applicant was in custody – where applicant sentenced to a total of seven and a half months in actual custody – whether head sentence outside the permissible range for this type of offending
COUNSEL:	M A Green for the applicant/appellant S G Bain for the respondent
SOLICITORS:	Legal Aid (Queensland) for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent