R v Hill

Case [2017] QCA 177

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hill [2017] QCA 177

PARTIES:

R
v
HILL, Robert Allan Charles
(applicant)

FILE NO/S:

CA No 36 of 2017
DC No 1453 of 2016
DC No 189 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 15 February 2017 (Smith DCJ)

DELIVERED ON:

22 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2017

JUDGES:

Sofronoff P and Atkinson and Applegarth JJ

ORDER:

1.   Leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Set aside the sentences of three years’ imprisonment imposed on Counts 1 and 8 on the indictment and impose in lieu thereof sentences of two years’ imprisonment.

4.   Set aside the parole eligibility date of 15 February 2018 and fix instead a date of 15 December 2017.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the sentencing judge proceeded on the basis that the circumstance of aggravation relied upon in respect to the dangerous operation of a motor vehicle was that the applicant as adversely affected by an intoxicating substance – where the circumstance of aggravation was a prior conviction for dangerous operation of a motor vehicle – where this error was acknowledged to require the sentencing discretion to be exercised

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the sentence imposed was cumulative upon the applicant’s existing term of imprisonment – where account needed to be taken of the totality principle – whether a lengthy sentence cumulative upon the expiry of the applicant’s current sentence would be ‘crushing’ in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 9, s 159A

R v Baker[2011] QCA 104, cited
R v Cutajar (1995) 85 A Crim R 280; [1995] QCA 570, cited
R v Fabre [2008] QCA 386, cited
R v Hawdon [2011] QCA 219, cited
R v Hyatt[2011] QCA 55, cited
R v Kendrick (2015) 249 A Crim R 176; [2015] QCA 27, cited
R v Kiripatea [1991] 2 Qd R 686; (1990) 50 A Crim R 417, cited
R v Paton[2011] QCA 34, cited
R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, cited

COUNSEL:

The applicant appeared on his own behalf
V A Loury QC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of Applegarth J and with the orders his Honour proposes.

  2. ATKINSON J:  I agree with the orders proposed by Applegarth J and with his Honour’s reasons.

  3. APPLEGARTH J:  On 15 February 2017, the applicant was sentenced on eight counts on an indictment and 19 summary offences.  The most serious offences were burglary and stealing, committed on 6 September 2015, for which he was sentenced to imprisonment for three years,…

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Details
AGLC
R v Hill [2017] QCA 177
Case
[2017] QCA 177
Decision Date

CaseChat Overview and Summary

In the matter of R v Hill, the appellant, Hill, sought leave to appeal against his sentence, which was imposed following his convictions for various offences including dangerous operation of a motor vehicle. Hill's appeal was directed to the Court of Appeal, which was required to consider the grounds for interference with the original sentencing decision. The primary contention was whether the sentencing judge erred in applying the aggravating circumstances of the offence, and whether the overall sentence was manifestly excessive, particularly when considering the principle of totality.

The court was tasked with determining whether the sentencing judge's reliance on the wrong aggravating factor constituted a material error that warranted interference. Additionally, the court needed to assess if the sentence was excessive when considered in light of the principle of totality, particularly since the sentence was cumulative upon the applicant's existing term of imprisonment. The court was required to weigh the need for punishment and deterrence against the risk that the sentence would be 'crushing' for the applicant, given the totality of the circumstances.

In its reasoning, the court acknowledged that the sentencing judge had erred by applying the wrong aggravating circumstance. This error required the sentencing discretion to be exercised anew. The court found that the error was material and warranted interference with the original sentence. Furthermore, the court considered the cumulative nature of the sentence, which was imposed on top of the applicant's existing imprisonment term. The court held that the lengthy sentence, when added to the existing term, would be 'crushing' in the circumstances and therefore manifestly excessive. Consequently, the appeal was allowed, and the sentences were set aside and replaced with lesser terms of imprisonment, along with a revised parole eligibility date.

Orders

Orders of the court

1. Leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the sentences of three years’ imprisonment imposed on Counts 1 and 8 on the indictment and impose in lieu thereof sentences of two years’ imprisonment.

4. Set aside the parole eligibility date of 15 February 2018 and fix instead a date of 15 December 2017.

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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