R v Henriott - [2004] QCA 346

SUPREME COURT OF QUEENSLAND

CITATION:

R v Henriott [2004] QCA 346

PARTIES:

R

v

HENRIOTT, Raymond Joseph

(applicant/appellant)

FILE NO/S:

CA No 194 of 2004

DC No 480 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMPORE ON:

22 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2004

JUDGES:

Jerrard JA, White and Jones JJ

Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER:

1. Grant the application for leave to appeal sentence

2. Allow the appeal to the extent of varying the sentence below by ordering the sentence to be suspended after the applicant has served 18 months with an operational period of five years

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – where applicant sentenced to four and a half years’ imprisonment for grievous bodily harm – where applicant used a weapon in the assault – where applicant sought to put before the Court non fresh evidence relating to the complainant’s conduct in the course of the evening of the assault – where application refused – where applicant sole carer for three children - whether sentence excessive in circumstances

R v Braithwaite [2004] QCA 82; CA No 371 of 2003, 26 March 2004, considered
R v McGrady & Anor [2001] QCA 302; CA 44 of 2001, 27 July 2001, considered
R v Maniadis [1996] QCA 242; CA No 502 of 1995, 19 July 1996, applied

R v Partridge [1997] QCA 77; CA No 561 of 1996, 18 March 1997, considered

COUNSEL:

D Locantro (sol) for the applicant/appellant

RG Martin for the respondent

SOLICITORS:

Locantro Lawyers for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

WHITE J: The applicant for leave to appeal against sentence pleaded guilty in the District Court at Maroochydore to one count of doing grievous bodily harm on 17 May 2004 in respect of an assault which occurred on 10 November 2002. The delay seems to be because the matter was listed for trial and a few weeks before the trial was due to commence the applicant pleaded guilty.

Sentence was adjourned to 7 June to allow the applicant to make arrangements for the care of his two teenage children and another child in his care in the likely event that he was sentenced to a term of imprisonment. The applicant was sentenced to four and a-half years' imprisonment and he complains that that is a manifestly excessive sentence. He contends for a sentence of three years with a recommendation for post prison community based release after serving 12 months relying on the decision of this Court in Partridge [1997] QCA 077.

The applicant was 39 years at the time of the assault and 40 at sentence. The circumstances of the offence are…

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 Henriott

Details

AGLC: R v Henriott [2004] QCA 346
Case: [2004] QCA 346
Decision Date: 22 September 2004

CaseChat Overview and Summary

The case of R v Henriott involves the appellant who was sentenced to four and a half years in prison for grievous bodily harm, where he used a weapon in the assault. The appellant sought to appeal against the severity of the sentence, arguing that it was excessive given his circumstances, including being the sole carer for three children. The appellant also sought to introduce evidence concerning the complainant’s conduct on the evening of the incident, which the trial judge refused to admit. The appeal was heard in the higher court, which was tasked with determining whether the sentence was appropriate in the given circumstances and whether the refusal to admit new evidence was justified.

The court was required to consider whether the original sentence was excessive, particularly in light of the appellant’s role as the primary caregiver for three children. Additionally, the court had to assess the trial judge's decision to exclude the proposed new evidence related to the complainant’s conduct on the night of the assault. The legal issues centred on the principles of sentencing proportionality and the circumstances that could justify a reduction in the imposed sentence. The court also needed to evaluate the merits of the proposed new evidence and its relevance to the case.

The court found that the original sentence was indeed excessive given the appellant’s role as a sole caregiver for three children. The court recognised the importance of this responsibility and how it could affect the appellant's ability to serve a lengthy prison sentence. The court also acknowledged that the exclusion of the new evidence might have impacted the sentencing decision but held that the overall sentence was disproportionate. Consequently, the court allowed the appeal and varied the sentence, ordering it to be suspended after the appellant had served 18 months with an operational period of five years.

The final orders of the court were to grant the application for leave to appeal the sentence and to allow the appeal to the extent of varying the sentence by ordering it to be suspended after the appellant had served 18 months, with an operational period of five years. This decision recognises the appellant's unique circumstances and aims to balance the need for punishment with the broader impact on his family and caregiving duties.

Orders

Orders of the court

1. Grant the application for leave to appeal sentence

2. Allow the appeal to the extent of varying the sentence below by ordering the sentence to be suspended after the applicant has served 18 months with an operational period of five years

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 Henriott [2004] QCA 346
PARTIES:	R v HENRIOTT, Raymond Joseph (applicant/appellant)
FILE NO/S:	CA No 194 of 2004 DC No 480 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED EX TEMPORE ON:	22 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2004
JUDGES:	Jerrard JA, White and Jones JJ Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDER:	1. Grant the application for leave to appeal sentence 2. Allow the appeal to the extent of varying the sentence below by ordering the sentence to be suspended after the applicant has served 18 months with an operational period of five years
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – where applicant sentenced to four and a half years’ imprisonment for grievous bodily harm – where applicant used a weapon in the assault – where applicant sought to put before the Court non fresh evidence relating to the complainant’s conduct in the course of the evening of the assault – where application refused – where applicant sole carer for three children - whether sentence excessive in circumstances R v Braithwaite [2004] QCA 82; CA No 371 of 2003, 26 March 2004, considered R v McGrady & Anor [2001] QCA 302; CA 44 of 2001, 27 July 2001, considered R v Maniadis [1996] QCA 242; CA No 502 of 1995, 19 July 1996, applied R v Partridge [1997] QCA 77; CA No 561 of 1996, 18 March 1997, considered
COUNSEL:	D Locantro (sol) for the applicant/appellant RG Martin for the respondent
SOLICITORS:	Locantro Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent