R v HBP - [2017] QCA 130

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBP [2017] QCA 130

PARTIES:

R
v
HBP
(applicant)

FILE NO/S:

CA No 243 of 2016
SC No 300 of 2013
SC No 60 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 11 August 2016 and 8 September 2016

DELIVERED ON:

13 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2017

JUDGES:

Holmes CJ and Gotterson JA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted of the breach of a suspended sentence with an operational period of five years – where the learned sentencing judge activated 12 months of the suspended sentence but did not set a parole release date in accordance with s 160B of the Penalties and Sentences Act 1992 (Qld) – where the sentence was subsequently reopened and confirmed, subject to a parole release date being fixed at the end of the 12 month period – whether the learned sentencing judge erred in determining to activate part of the previously suspended term without concurrently considering the prospect of setting a parole release date prior to the expiration of that activated term of imprisonment

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of the breach of a suspended sentence with an operational period of five years – where the learned sentencing judge activated 12 months of the suspended sentence but did not set a parole release date in accordance with s 160B of the Penalties and Sentences Act 1992 (Qld) – where the sentence was subsequently reopened and confirmed, subject to a parole release date being fixed at the end of the 12 month period – whether it was manifestly excessive or plainly unjust to structure a sentence which required the applicant to serve 12 months

Criminal Code (Qld), s 280
Penalties and Sentences Act 1992 (Qld), s 160B

R v Newman[2008] QCA 147, cited
R v Norden [2009] 2 Qd R 455; [2009] QCA 42, cited

COUNSEL:

J Lodziak for the applicant
M R Byrne QC for the respondent

SOLICITORS:

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

HOLMES CJ: I have had the advantage of reading Bond J’s judgment, and agree with his Honour that the applicant has not made out the errors for which she contends. As to the submission that requiring the applicant to serve 12 months of the suspended period of the sentence produced a result which was manifestly excessive, it is clear from the sentencing judge’s remarks that he gave very great weight to the deterrence…

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 HBP

Details

AGLC: R v HBP [2017] QCA 130
Case: [2017] QCA 130
Decision Date: 13 June 2017

CaseChat Overview and Summary

The applicant was convicted of breaching a suspended sentence that had an operational period of five years. The sentencing judge activated 12 months of the previously suspended sentence but did not set a parole release date as required by section 160B of the Penalties and Sentences Act 1992 (Qld). The sentence was later reopened and confirmed, but with the condition that a parole release date be fixed at the end of the 12-month period. The applicant appealed against the sentence, arguing that the sentencing judge erred by activating part of the previously suspended term without considering the prospect of setting a parole release date prior to the expiration of that activated term of imprisonment. The applicant also argued that the sentence was manifestly excessive or plainly unjust.

The court had to determine whether the sentencing judge erred in activating part of the previously suspended term without considering the prospect of setting a parole release date prior to the expiration of that activated term of imprisonment. The court also had to determine whether the sentence was manifestly excessive or plainly unjust. The court found that the sentencing judge did not err in activating part of the previously suspended term without considering the prospect of setting a parole release date prior to the expiration of that activated term of imprisonment. The court also found that the sentence was not manifestly excessive or plainly unjust.

The application for leave to appeal was refused. The court found that the sentencing judge did not err in activating part of the previously suspended term without considering the prospect of setting a parole release date prior to the expiration of that activated term of imprisonment. The court also found that the sentence was not manifestly excessive or plainly unjust. The court held that the sentence was within the range of appropriate sentences for the offence, and that the sentencing judge had considered all relevant factors in determining the sentence. The court also held that the sentence was not manifestly excessive or plainly unjust, as the applicant had committed a serious offence and had breached a suspended sentence with an operational period of five years. The court found that the sentence was appropriate and just, and that there were no grounds for interference.

Orders

Orders of the court

The application for leave to appeal is refused.

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 HBP [2017] QCA 130
PARTIES:	R v HBP (applicant)
FILE NO/S:	CA No 243 of 2016 SC No 300 of 2013 SC No 60 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 11 August 2016 and 8 September 2016
DELIVERED ON:	13 June 2017
DELIVERED AT:	Brisbane
HEARING DATE:	1 February 2017
JUDGES:	Holmes CJ and Gotterson JA and Bond J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted of the breach of a suspended sentence with an operational period of five years – where the learned sentencing judge activated 12 months of the suspended sentence but did not set a parole release date in accordance with s 160B of the Penalties and Sentences Act 1992 (Qld) – where the sentence was subsequently reopened and confirmed, subject to a parole release date being fixed at the end of the 12 month period – whether the learned sentencing judge erred in determining to activate part of the previously suspended term without concurrently considering the prospect of setting a parole release date prior to the expiration of that activated term of imprisonment CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of the breach of a suspended sentence with an operational period of five years – where the learned sentencing judge activated 12 months of the suspended sentence but did not set a parole release date in accordance with s 160B of the Penalties and Sentences Act 1992 (Qld) – where the sentence was subsequently reopened and confirmed, subject to a parole release date being fixed at the end of the 12 month period – whether it was manifestly excessive or plainly unjust to structure a sentence which required the applicant to serve 12 months Criminal Code (Qld), s 280 Penalties and Sentences Act 1992 (Qld), s 160B R v Newman[2008] QCA 147, cited R v Norden [2009] 2 Qd R 455; [2009] QCA 42, cited
COUNSEL:	J Lodziak for the applicant M R Byrne QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent