R v HBL - [2014] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBL [2014] QCA 270

PARTIES:

R
v
HBL
(applicant)

FILE NO/S:

CA No 126 of 2014
DC No 91 of 2014
DC No 706 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered 30 September 2014
Reasons delivered 24 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

30 September 2014

JUDGES:

Fraser and Gotterson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered 30 September 2014:

1.       Grant the application for leave to appeal against sentence.

2.       Allow the appeal.

3.       Vary the sentence imposed in the District Court by substituting for the sentence for Count 1 a term of imprisonment for 18 months.

4.       Fix the date on which the applicant is to be released on parole at 30 September 2014.

5.        Otherwise confirm the orders made in the District Court.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was the father to the three year old child – where the applicant and the child’s mother were in a long-term, intermittent and turbulent relationship – where there was a Domestic Violence Order against the applicant – where the Federal Magistrates Court had ordered that the child live with the mother – where the applicant had limited contact with the child subject to written agreement between him and the mother – where the mother would not agree – where the child was left at home with the mother’s friend – where the applicant arrived unannounced at the house and took the child – where the friend noticed the child was gone and recognised the applicant’s car speeding away – where the friend called “000” and the applicant’s mother – where the applicant’s mother said that the child was safe with the applicant – where the applicant informed police that he wanted to spend time with the child and would take him to a police station later – where three hours later the applicant called the police again and said that he would not be returning the child to his mother given her occupation as a prostitute – where the applicant later informed the police that he had taken the child over the border – where the applicant and the child were located in Lismore three days later – where the applicant was charged with abducting a child under 16 years and breaching a Domestic Violence Order – where the applicant pleaded guilty and was sentenced to four years’ imprisonment with a fixed parole eligibility date at 23 May 2015 – whether the learned sentencing judge erred in accepting that this case fell into the “worst category of this type of offence” – whether the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 363, s 363A

Barbaro v The Queen; Zirilli v…

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 HBL

Details

AGLC: R v HBL [2014] QCA 270
Case: [2014] QCA 270
Decision Date: 30 September 2014

CaseChat Overview and Summary

The appeal involved the applicant, who was the father of a three-year-old child, against the sentence imposed by the District Court. The applicant and the child's mother were in a long-term, intermittent, and turbulent relationship, with a Domestic Violence Order against the applicant. The Federal Magistrates Court had ordered that the child live with the mother, with limited contact for the applicant subject to written agreement. The applicant took the child without consent, leading to charges of abducting a child under 16 years and breaching a Domestic Violence Order. The applicant pleaded guilty and was sentenced to four years' imprisonment with a fixed parole eligibility date. The applicant contested the severity of the sentence, arguing it was manifestly excessive.

The primary legal issue before the court was whether the sentencing judge erred in categorising this case as falling into the "worst category of this type of offence" and whether the sentence was manifestly excessive. The applicant argued that the circumstances of the case did not warrant such a severe penalty, and the sentence was disproportionate to the offence committed. The court was required to assess the appropriate sentencing principles and determine if the sentence imposed was within the acceptable range of penalties for the offence.

The court found that the sentencing judge had erred in categorising the case as falling into the "worst category of this type of offence" and in imposing a sentence that was manifestly excessive. The court recognised that while the offence was serious, the circumstances did not justify such a severe penalty. The court substituted the sentence imposed in the District Court with a term of imprisonment for 18 months, with parole eligibility fixed at 30 September 2014. The court also confirmed the orders made in the District Court in all other respects.

The court granted the application for leave to appeal against sentence, allowed the appeal, and varied the sentence imposed by the District Court. The court fixed the parole eligibility date and confirmed the other orders made in the District Court. The outcome reflected the court's view that the original sentence was disproportionate and did not align with the appropriate sentencing principles for the offence.

Orders

Orders of the court

Delivered 30 September 2014:

1. Grant the application for leave to appeal against sentence.

2. Allow the appeal.

3. Vary the sentence imposed in the District Court by substituting for the sentence for Count 1 a term of imprisonment for 18 months.

4. Fix the date on which the applicant is to be released on parole at 30 September 2014.

5. Otherwise confirm the orders made in the District Court.

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 HBL [2014] QCA 270
PARTIES:	R v HBL (applicant)
FILE NO/S:	CA No 126 of 2014 DC No 91 of 2014 DC No 706 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Orders delivered 30 September 2014 Reasons delivered 24 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	30 September 2014
JUDGES:	Fraser and Gotterson JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered 30 September 2014: 1. Grant the application for leave to appeal against sentence. 2. Allow the appeal. 3. Vary the sentence imposed in the District Court by substituting for the sentence for Count 1 a term of imprisonment for 18 months. 4. Fix the date on which the applicant is to be released on parole at 30 September 2014. 5. Otherwise confirm the orders made in the District Court.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was the father to the three year old child – where the applicant and the child’s mother were in a long-term, intermittent and turbulent relationship – where there was a Domestic Violence Order against the applicant – where the Federal Magistrates Court had ordered that the child live with the mother – where the applicant had limited contact with the child subject to written agreement between him and the mother – where the mother would not agree – where the child was left at home with the mother’s friend – where the applicant arrived unannounced at the house and took the child – where the friend noticed the child was gone and recognised the applicant’s car speeding away – where the friend called “000” and the applicant’s mother – where the applicant’s mother said that the child was safe with the applicant – where the applicant informed police that he wanted to spend time with the child and would take him to a police station later – where three hours later the applicant called the police again and said that he would not be returning the child to his mother given her occupation as a prostitute – where the applicant later informed the police that he had taken the child over the border – where the applicant and the child were located in Lismore three days later – where the applicant was charged with abducting a child under 16 years and breaching a Domestic Violence Order – where the applicant pleaded guilty and was sentenced to four years’ imprisonment with a fixed parole eligibility date at 23 May 2015 – whether the learned sentencing judge erred in accepting that this case fell into the “worst category of this type of offence” – whether the sentence was manifestly excessive Criminal Code 1899 (Qld), s 363, s 363A Barbaro v The Queen; Zirilli v…