R v Hill - [2012] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hill [2012] QCA 59

PARTIES:

R
v
HILL, Michael James
(applicant)

FILE NO/S:

CA No 240 of 2011
DC No 90 of 2010
DC No 73 of 2010
DC No 2432 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

Orders delivered ex tempore 7 March 2012
Reasons delivered 20 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2012

JUDGES:

Chesterman and White JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 7 March 2012:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed and all sentences imposed on the applicant by the District Court on 24 June 2011 are set aside.

3.   In lieu, the following sentences are imposed:

a.   In respect of indictment 2432 of 2010:

  i.   On count one: five years imprisonment.

  ii.   On count two: three years imprisonment.

b.   In respect of indictment 2430 of 2010:

  i.   On each counts 1, 2, 3 and 4: five years imprisonment.

  ii.   On count 5: three years imprisonment.

  iii.   On each counts 6 and 7: one year imprisonment.

c.   In respect of the summary charges on bench charge sheet 2431 of 2010, there will be a conviction recorded but no further penalty imposed.

4.   All sentences are to be served concurrently.

5.   The date on which the applicant is eligible for parole is fixed at today, 7 March 2012.

6.   District Registry to forward by fax transmission a copy of the orders to the appellant in custody.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to seven count indictment containing one count of burglary while armed; one count of burglary while armed, with violence; one count of attempted armed robbery with personal injury; one count of rape; two counts of attempted rape; and two counts of common assault – where applicant pleaded guilty to further ex officio indictment containing one count of rape and one count of attempted armed robbery – where the applicant pleaded guilty to two further summary charges – where the applicant received an effective head sentence of nine years imprisonment with a parole release date after serving four years, five months – where the applicant had been in custody for a total of 701 days at the time of sentence – where the 701 days could not be formally declared as time already served – where the indictable offences related to two episodes of offending – where the indictable offences were committed against prostitutes – where the applicant was armed with a knife in each instance – where the offence of rape pertained to oral penetration – where the applicant claimed the learned sentencing judge did not properly account for time spent in pre-sentence custody – where the…

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 Hill

Details

AGLC: R v Hill [2012] QCA 59
Case: [2012] QCA 59
Decision Date: 7 March 2012

CaseChat Overview and Summary

The applicant, in this case, appealed against the sentence imposed by the District Court in relation to a series of serious criminal offences. The applicant pleaded guilty to multiple counts including burglary, armed robbery, rape, and assault. The sentence imposed was nine years imprisonment with a non-parole period of four years and five months. The applicant argued that the sentence was manifestly excessive given the time already spent in custody and the fact that the sentencing judge did not adequately account for the time already served or the plea of guilty. The Court of Appeal was required to determine whether the sentence was manifestly excessive in all the circumstances.

The court considered whether the sentence imposed was manifestly excessive in light of the time the applicant had already spent in custody, which could not be formally declared as time already served. The court also considered whether the sentencing judge had properly accounted for the time spent in pre-sentence custody and the applicant's plea of guilty. The court examined the nature and seriousness of the offences, the applicant's criminal history, and the principle that sentences should not be manifestly excessive.

The court found that the sentence imposed was manifestly excessive given the time already spent in custody and the failure of the sentencing judge to adequately account for these factors. The court held that the sentence did not reflect the mitigating factors of the applicant's plea of guilty and the time already spent in custody. Consequently, the court allowed the appeal, set aside the sentences imposed by the District Court, and imposed new sentences. These sentences were to be served concurrently, and the applicant was deemed eligible for parole from the date of the Court of Appeal's decision.

Orders

Orders of the court

Delivered ex tempore on 7 March 2012:

1. The application for leave to appeal is granted.

2. The appeal is allowed and all sentences imposed on the applicant by the District Court on 24 June 2011 are set aside.

3. In lieu, the following sentences are imposed:

a. In respect of indictment 2432 of 2010:

i. On count one: five years imprisonment.

ii. On count two: three years imprisonment.

b. In respect of indictment 2430 of 2010:

i. On each counts 1, 2, 3 and 4: five years imprisonment.

ii. On count 5: three years imprisonment.

iii. On each counts 6 and 7: one year imprisonment.

c. In respect of the summary charges on bench charge sheet 2431 of 2010, there will be a conviction recorded but no further penalty imposed.

4. All sentences are to be served concurrently.

5. The date on which the applicant is eligible for parole is fixed at today, 7 March 2012.

6. District Registry to forward by fax transmission a copy of the orders to the appellant in custody.

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 Hill [2012] QCA 59
PARTIES:	R v HILL, Michael James (applicant)
FILE NO/S:	CA No 240 of 2011 DC No 90 of 2010 DC No 73 of 2010 DC No 2432 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	Orders delivered ex tempore 7 March 2012 Reasons delivered 20 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2012
JUDGES:	Chesterman and White JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 7 March 2012: 1. The application for leave to appeal is granted. 2. The appeal is allowed and all sentences imposed on the applicant by the District Court on 24 June 2011 are set aside. 3. In lieu, the following sentences are imposed: a. In respect of indictment 2432 of 2010: i. On count one: five years imprisonment. ii. On count two: three years imprisonment. b. In respect of indictment 2430 of 2010: i. On each counts 1, 2, 3 and 4: five years imprisonment. ii. On count 5: three years imprisonment. iii. On each counts 6 and 7: one year imprisonment. c. In respect of the summary charges on bench charge sheet 2431 of 2010, there will be a conviction recorded but no further penalty imposed. 4. All sentences are to be served concurrently. 5. The date on which the applicant is eligible for parole is fixed at today, 7 March 2012. 6. District Registry to forward by fax transmission a copy of the orders to the appellant in custody.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to seven count indictment containing one count of burglary while armed; one count of burglary while armed, with violence; one count of attempted armed robbery with personal injury; one count of rape; two counts of attempted rape; and two counts of common assault – where applicant pleaded guilty to further ex officio indictment containing one count of rape and one count of attempted armed robbery – where the applicant pleaded guilty to two further summary charges – where the applicant received an effective head sentence of nine years imprisonment with a parole release date after serving four years, five months – where the applicant had been in custody for a total of 701 days at the time of sentence – where the 701 days could not be formally declared as time already served – where the indictable offences related to two episodes of offending – where the indictable offences were committed against prostitutes – where the applicant was armed with a knife in each instance – where the offence of rape pertained to oral penetration – where the applicant claimed the learned sentencing judge did not properly account for time spent in pre-sentence custody – where the…