R v. Hester - [2008] QCA 277

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hester [2008] QCA 277

PARTIES:

R
v
HESTER, Benjamine Albert
(applicant)

FILE NO/S:

CA No 155 of 2008

SC No 164 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2008

JUDGES:

Holmes JA, Mackenzie AJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

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 REFUSED – where the applicant was convicted on his plea of guilty of two counts of attempted murder – where the offences involved the use of samurai swords against the applicant’s ex-girlfriend and her
step-father’s partner – where the arm of one complainant was severed in the attack – where the applicant received an effective sentence of 15 years imprisonment – where the applicant suffered from an organically induced personality disorder arising from a closed head injury – whether the sentence was manifestly excessive having regard to the applicant’s impairment

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 REFUSED – where the learned sentencing judge found that there would be a risk to the complainants upon the applicant’s release – whether the learned sentencing judge gave adequate notice to defence counsel that he may make such a finding – whether the finding was supported by evidence

Channon v The Queen (1978) 33 FLR 433; (1978) 20 ALR 1, applied
R v Chivers [1993] 1 Qd R 432, cited
R v Kerwin[2005] QCA 259, cited
R v Neumann, ex parte Attorney-General [2007] 1 Qd R 53; [2005] QCA 362, cited
R v Tevita[2006] QCA 131, cited

COUNSEL:

C Reid for the applicant
S G Bain for the respondent

SOLICITORS:

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

HOLMES JA: I agree with the reasons of, and order proposed by, Mackenzie AJA. The applicant’s head injury and its sequelae might have been given greater weight in mitigation, but the learned sentencing judge’s approach to it as a sentencing factor was in accordance with what was said in Channon, and the sentence of 15 years, taken as a whole, was not manifestly excessive.

MACKENZIE AJA: The applicant pleaded guilty to two counts of attempted murder (counts 1 and 3) one of unlawful wounding (count 5) and one of assault with intent to commit a crime (count 6). He was sentenced to 15 years imprisonment for counts 1 and 3, four years imprisonment for count 5 and imprisonment for one year for count…

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. Hester

Details

AGLC: R v Hester [2008] QCA 277
Case: [2008] QCA 277
Decision Date: 12 September 2008

CaseChat Overview and Summary

The appellant, who had pleaded guilty to two counts of attempted murder involving samurai swords, appealed against his sentence of 15 years imprisonment. The victim's arm was severed during the attack on her and her step-father's partner. The appellant suffered from an organically induced personality disorder resulting from a closed head injury. The primary issue was whether the sentence was manifestly excessive considering the appellant's impairment.

The court examined whether the sentence was excessive, given the appellant's impairment, and whether the sentencing judge adequately notified the defence counsel of potential findings regarding risks to the complainants upon the appellant's release. The court determined that the sentencing judge had not given sufficient notice to the defence counsel regarding the potential finding of risk to the complainants upon the appellant's release. However, this did not impact the overall decision as the finding was supported by evidence. The court held that the sentence was not manifestly excessive, taking into account the severity of the crimes, the need to protect the community, and the appellant's impairment.

The court ultimately refused the application for leave to appeal against the sentence, affirming the trial judge's decision. The appellant's appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Hester [2008] QCA 277
PARTIES:	R v HESTER, Benjamine Albert (applicant)
FILE NO/S:	CA No 155 of 2008 SC No 164 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2008
JUDGES:	Holmes JA, Mackenzie AJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
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 REFUSED – where the applicant was convicted on his plea of guilty of two counts of attempted murder – where the offences involved the use of samurai swords against the applicant’s ex-girlfriend and her step-father’s partner – where the arm of one complainant was severed in the attack – where the applicant received an effective sentence of 15 years imprisonment – where the applicant suffered from an organically induced personality disorder arising from a closed head injury – whether the sentence was manifestly excessive having regard to the applicant’s impairment 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 REFUSED – where the learned sentencing judge found that there would be a risk to the complainants upon the applicant’s release – whether the learned sentencing judge gave adequate notice to defence counsel that he may make such a finding – whether the finding was supported by evidence Channon v The Queen (1978) 33 FLR 433; (1978) 20 ALR 1, applied R v Chivers [1993] 1 Qd R 432, cited R v Kerwin[2005] QCA 259, cited R v Neumann, ex parte Attorney-General [2007] 1 Qd R 53; [2005] QCA 362, cited R v Tevita[2006] QCA 131, cited
COUNSEL:	C Reid for the applicant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent