R v Herbert - [2016] QCA 265

SUPREME COURT OF QUEENSLAND

CITATION:

R v Herbert [2016] QCA 265

PARTIES:

R
v
HERBERT, Apirana Rexton
(appellant/applicant)

FILE NO/S:

CA No 123 of 2016
DC No 266 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction & Sentence: 14 April 2016

DELIVERED ON:

20 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2016

JUDGES:

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

ORDERS:

1. Dismiss the appeal.

2. Refuse the application for leave to appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON DIRECTION – REVIEW OF EVIDENCE – where the appellant was found guilty by a jury of unlawfully doing grievous bodily harm (Count 1), assault occasioning bodily harm (Count 2) and wilful damage (Count 3) – where the appellant appeals his convictions on Counts 1 and 2 on the basis that the trial judge erred by failing to leave for the jury’s consideration s 24 of the Criminal Code in combination with each of s 273 and s 267 – where the respondent submits that the evidence does not allow for any reasonable possibility of the application of s 273 and s 267 – whether evidence raised potential for application of either s 273 or s 267 in combination with s 24

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced for three years and nine months imprisonment – where the sentence was cumulative upon a sentence of four years imprisonment for trafficking in dangerous drugs – where the parole eligibility date fixed by the sentence judge increased the previous parole eligibility date for the trafficking sentence by 22 months – where the sentencing judge observed that she would have imposed a sentence of five years imprisonment for the offences but the head sentence was reduced as it would be a cumulative sentence – where the appellant submits that the starting point of five years imprisonment was too high – where the respondent submitted that due to the circumstances a more severe sentence was within the sentencing discretion – whether there has been a misapplication of principle – whether the sentence is unreasonable or plainly unjust

Criminal Code (Qld), s 24, s 267, s 273

R v Agius[2015] QCA 277, cited
R v Craigie[2014] QCA 1, cited
R v Dean[2009] QCA 309, cited
R v Dillon; ex parte Attorney-General (Qld)[2006] QCA 521, cited
R v Fisher (2008) 189 A Crim R 16; [2008] QCA 307, cited
R v Pangilinan [2001] 1 Qd R 56; [1999] QCA 528, cited
Stevens v the Queen (2005) 227 CLR 319; [2005] HCA 65, cited

COUNSEL:

D A Holliday for the appellant/applicant
V A…

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 Herbert

Details

AGLC: R v Herbert [2016] QCA 265
Case: [2016] QCA 265
Decision Date: 20 October 2016

CaseChat Overview and Summary

The appellant, Herbert, appealed against his conviction and sentence for three criminal charges: unlawfully causing grievous bodily harm, assault occasioning bodily harm, and wilful damage. The appeal was heard in the court of appeal. The appellant contended that the trial judge failed to properly direct the jury on the law by not leaving for consideration sections 24, 273, and 267 of the Criminal Code in combination. The respondent argued that the evidence did not permit a reasonable possibility of the application of these sections in combination. Additionally, Herbert argued that his sentence of three years and nine months imprisonment was manifestly excessive, given that it cumulatively increased his parole eligibility date by 22 months from a previous sentence for drug trafficking. The respondent maintained that the sentence was within the court's discretion and appropriate given the circumstances.

The court examined the arguments regarding the jury direction, finding that the evidence did not raise a reasonable possibility of the application of sections 273 and 267 of the Criminal Code in combination with section 24. Therefore, the court held that the trial judge did not err in not directing the jury on these provisions. The court also considered the appellant's sentence, noting that the starting point of five years imprisonment, as stated by the sentencing judge, was not too high and was within the court's discretion. The court concluded that the sentence was not manifestly excessive or plainly unjust.

In light of the findings, the court dismissed the appeal and refused the application for leave to appeal. The court found no basis to interfere with the conviction or the sentence imposed by the trial judge. The appellant's arguments did not demonstrate a misapplication of principle or an unreasonable or unjust sentence. Consequently, the appeal was unsuccessful, and the original conviction and sentence were upheld.

Orders

Orders of the court

1. Dismiss the appeal.

2. Refuse the application for leave to appeal.

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 Herbert [2016] QCA 265
PARTIES:	R v HERBERT, Apirana Rexton (appellant/applicant)
FILE NO/S:	CA No 123 of 2016 DC No 266 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Maroochydore – Date of Conviction & Sentence: 14 April 2016
DELIVERED ON:	20 October 2016
DELIVERED AT:	Brisbane
HEARING DATE:	7 October 2016
JUDGES:	Fraser and Philippides JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Dismiss the appeal. 2. Refuse the application for leave to appeal.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON DIRECTION – REVIEW OF EVIDENCE – where the appellant was found guilty by a jury of unlawfully doing grievous bodily harm (Count 1), assault occasioning bodily harm (Count 2) and wilful damage (Count 3) – where the appellant appeals his convictions on Counts 1 and 2 on the basis that the trial judge erred by failing to leave for the jury’s consideration s 24 of the Criminal Code in combination with each of s 273 and s 267 – where the respondent submits that the evidence does not allow for any reasonable possibility of the application of s 273 and s 267 – whether evidence raised potential for application of either s 273 or s 267 in combination with s 24 CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced for three years and nine months imprisonment – where the sentence was cumulative upon a sentence of four years imprisonment for trafficking in dangerous drugs – where the parole eligibility date fixed by the sentence judge increased the previous parole eligibility date for the trafficking sentence by 22 months – where the sentencing judge observed that she would have imposed a sentence of five years imprisonment for the offences but the head sentence was reduced as it would be a cumulative sentence – where the appellant submits that the starting point of five years imprisonment was too high – where the respondent submitted that due to the circumstances a more severe sentence was within the sentencing discretion – whether there has been a misapplication of principle – whether the sentence is unreasonable or plainly unjust Criminal Code (Qld), s 24, s 267, s 273 R v Agius[2015] QCA 277, cited R v Craigie[2014] QCA 1, cited R v Dean[2009] QCA 309, cited R v Dillon; ex parte Attorney-General (Qld)[2006] QCA 521, cited R v Fisher (2008) 189 A Crim R 16; [2008] QCA 307, cited R v Pangilinan [2001] 1 Qd R 56; [1999] QCA 528, cited Stevens v the Queen (2005) 227 CLR 319; [2005] HCA 65, cited
COUNSEL:	D A Holliday for the appellant/applicant V A…