R v Hilton

Case [2009] QCA 12

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hilton [2009] QCA 12

PARTIES:

R
v
HILTON, Christopher Brian
(applicant)

FILE NO/S:

CA No 281 of 2008
DC No 238 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

13 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2009; 4 February 2009

JUDGES:

McMurdo P, Keane JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application for leave to adduce further evidence refused

2.    Application for leave to appeal against sentence refused

3.    Warrant to issue for the apprehension of the applicant, to lie in the Registry for 14 days

CATCHWORDS:

CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE — where applicant convicted on guilty plea of one count of assault occasioning bodily harm — where applicant sentenced to 18 months imprisonment suspended after six months for an operative period of two years — where applicant sought to adduce evidence on sentence application of depression and
post-sentence counselling — whether sentence manifestly excessive or inadequate

Criminal Code 1899 (Qld), s 668E(3)

R v Conway (2005) 157 A Crim R 474; [2005] QCA 194, cited
R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105, cited
R v Jones [2003] QCA 474, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v Walsh, Sayer & Thompson; ex-parte A-G [1998] QCA 217, cited
R v Yanner & Yanner; ex parte A-G (1999) 109 A Crim R 109; [1999] QCA 515, cited

COUNSEL:

A J Kimmins for the applicant
B G Campbell for the respondent

SOLICITORS:

Ryan & Bosscher for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. McMURDO P:  I agree with Keane JA's reasons.  Both the application for leave to appeal against sentence and the application to adduce further evidence should be refused. 

  1. As this was an offence of violence resulting in physical harm to the complainant, the sentencing court must have regard primarily to the matters set out in s 9(4) Penalties and Sentences Act 1992 (Qld). The principles set out in s 9(2)(a) (that imprisonment should be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable) do not apply: see s 9(3). A consideration of the sentencing principles in s 9(4), in the context of the circumstances of this case as set out by Keane JA, plainly demonstrates that the present sentence is not manifestly excessive.

  1. In attempting to demonstrate the excessive nature of the sentence, counsel for the applicant relied on R v Walsh, Sayer & Thompson; ex parte A-G[1] and R v Yanner & Yanner, ex parte A-G.[2] It is noteworthy that both of these cases concerned offences committed before the amendment to s 9 which added s…

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Details
AGLC
R v Hilton [2009] QCA 12
Case
[2009] QCA 12
Decision Date

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the respondent, Hilton, who was convicted of assault occasioning bodily harm. The respondent had entered a guilty plea and was sentenced to 18 months imprisonment, suspended after six months, with an operative period of two years. The respondent sought to appeal against the sentence on the grounds that it was manifestly excessive or inadequate. In addition, the respondent applied to adduce further evidence on the sentence application, specifically evidence of depression and post-sentence counselling.

The legal issues before the court were whether the sentence imposed was manifestly excessive or inadequate, and whether the respondent was entitled to adduce further evidence in support of their appeal. The court considered whether the sentence was outside the range of sentences that could be regarded as appropriate in the circumstances of the case, and whether the evidence of depression and post-sentence counselling could be taken into account in determining the appeal.

The court held that the sentence imposed was not manifestly excessive or inadequate, and that the evidence of depression and post-sentence counselling did not alter this conclusion. The court found that the sentence was within the range of sentences that could be regarded as appropriate in the circumstances of the case, and that the respondent had not demonstrated that the sentence was manifestly excessive or inadequate. The court also held that the evidence of depression and post-sentence counselling was not relevant to the appeal against sentence, and that the respondent was not entitled to adduce further evidence in support of their appeal. The court refused the respondent's application for leave to adduce further evidence and dismissed the appeal against sentence. In addition, the court issued a warrant for the apprehension of the respondent, to lie in the Registry for 14 days.

Orders

Orders of the court

1. Application for leave to adduce further evidence refused

2. Application for leave to appeal against sentence refused

3. Warrant to issue for the apprehension of the applicant, to lie in the Registry for 14 days

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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