R v Hirst - [2023] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hirst [2023] QCA 25

PARTIES:

R
v
HIRST, Russell Ian
(applicant)

FILE NO/S:

CA No 176 of 2022
DC No 932 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 2 August 2022 (Porter KC DCJ)

DELIVERED ON:

3 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2023

JUDGES:

Mullins P, Bond JA and Brown J

ORDERS:

1.    Application for leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Vary the sentence imposed in respect of each of counts 1 and 3 from three and one-half years’ imprisonment to three years’ imprisonment.

4.   Vary the sentence imposed for count 2 from 12 months’ imprisonment to six months’ imprisonment.

5.   Set aside the date fixed for eligibility for parole.

6.   Vary the sentences for counts 1 and 3 by ordering that the term of imprisonment for each of counts 1 and 3 be suspended after serving a period of nine months’ imprisonment and Mr Hirst must not commit another offence punishable by imprisonment within a period of three years to avoid being dealt with for the suspended term of imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to assault occasioning bodily harm in company (count 1), common assault (count 2) and burglary, by break, with violence, in company, with property damage (count 3) – where the applicant was sentenced to imprisonment of three years and six months for each of counts 1 and 3 and one year for count 2 – where the applicant was 53 years old, had no relevant prior criminal history and a good work history – where for counts 1 and 3 the applicant procured his son and another co-offender to participate with him in an unprovoked but unarmed attack on a friend of his neighbour and on the neighbour involving brief premeditation – where the applicant’s son’s sentence did not involve actual custody and the applicant would serve nine months more in custody than the other co-offender – whether the sentence was manifestly excessive – whether the parity principle required the reduction of the applicant’s sentence

R v Armstrong, Park and Pullyn[2008] QCA 132, considered
R v Dahlstrom[2022] QCA 139, considered
R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, considered
R v TAS[2021] QCA 49, cited

COUNSEL:

B J Power KC, with D V Nguyen, for the applicant
S L Dennis for the respondent

SOLICITORS:

Richardson McGhie for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: On 2 August 2022 Mr Hirst pleaded guilty to, and was sentenced for, assault occasioning bodily harm in company (count 1), common assault (count 2) and burglary, by break, with violence, in company, with property damage (count 3). His son (the son) and…

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 Hirst

Details

AGLC: R v Hirst [2023] QCA 25
Case: [2023] QCA 25
Decision Date: 3 March 2023

CaseChat Overview and Summary

The applicant, Mr Hirst, appealed against his sentence after pleading guilty to three criminal offences: assault occasioning bodily harm in company (count 1), common assault (count 2), and burglary, by break, with violence, in company, with property damage (count 3). The trial judge imposed a sentence of imprisonment of three years and six months for counts 1 and 3, and one year for count 2. Mr Hirst's son, who was also involved in the crimes, received a non-custodial sentence, and Mr Hirst would serve nine months more in custody than the other co-offender. Mr Hirst argued that the sentence was manifestly excessive and that the parity principle required a reduction of his sentence.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the parity principle mandated a reduction of the sentence. The court considered the nature and circumstances of the offences, Mr Hirst's background, and the sentences imposed on co-offenders. The court also examined the principle of parity, which requires that similarly situated offenders be treated similarly. The court noted that Mr Hirst's son, who played a similar role in the offences, received a non-custodial sentence, and Mr Hirst would serve more time in custody than the other co-offender.

The court found that the sentence imposed was manifestly excessive and that the parity principle required a reduction of the sentence. The court reduced the sentence for counts 1 and 3 from three years and six months to three years and for count 2 from 12 months to six months. The court also suspended the sentence for counts 1 and 3 after nine months of imprisonment, subject to the condition that Mr Hirst not commit another offence punishable by imprisonment within three years. The court set aside the date fixed for eligibility for parole.

The final orders of the court were to grant leave to appeal against sentence, allow the appeal, vary the sentences for counts 1 and 3 from three years and six months to three years, vary the sentence for count 2 from 12 months to six months, set aside the date fixed for eligibility for parole, and suspend the sentences for counts 1 and 3 after nine months of imprisonment, subject to certain conditions.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Vary the sentence imposed in respect of each of counts 1 and 3 from three and one-half years’ imprisonment to three years’ imprisonment.

4. Vary the sentence imposed for count 2 from 12 months’ imprisonment to six months’ imprisonment.

5. Set aside the date fixed for eligibility for parole.

6. Vary the sentences for counts 1 and 3 by ordering that the term of imprisonment for each of counts 1 and 3 be suspended after serving a period of nine months’ imprisonment and Mr Hirst must not commit another offence punishable by imprisonment within a period of three years to avoid being dealt with for the suspended term of imprisonment.

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 Hirst [2023] QCA 25
PARTIES:	R v HIRST, Russell Ian (applicant)
FILE NO/S:	CA No 176 of 2022 DC No 932 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 2 August 2022 (Porter KC DCJ)
DELIVERED ON:	3 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2023
JUDGES:	Mullins P, Bond JA and Brown J
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed. 3. Vary the sentence imposed in respect of each of counts 1 and 3 from three and one-half years’ imprisonment to three years’ imprisonment. 4. Vary the sentence imposed for count 2 from 12 months’ imprisonment to six months’ imprisonment. 5. Set aside the date fixed for eligibility for parole. 6. Vary the sentences for counts 1 and 3 by ordering that the term of imprisonment for each of counts 1 and 3 be suspended after serving a period of nine months’ imprisonment and Mr Hirst must not commit another offence punishable by imprisonment within a period of three years to avoid being dealt with for the suspended term of imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to assault occasioning bodily harm in company (count 1), common assault (count 2) and burglary, by break, with violence, in company, with property damage (count 3) – where the applicant was sentenced to imprisonment of three years and six months for each of counts 1 and 3 and one year for count 2 – where the applicant was 53 years old, had no relevant prior criminal history and a good work history – where for counts 1 and 3 the applicant procured his son and another co-offender to participate with him in an unprovoked but unarmed attack on a friend of his neighbour and on the neighbour involving brief premeditation – where the applicant’s son’s sentence did not involve actual custody and the applicant would serve nine months more in custody than the other co-offender – whether the sentence was manifestly excessive – whether the parity principle required the reduction of the applicant’s sentence R v Armstrong, Park and Pullyn[2008] QCA 132, considered R v Dahlstrom[2022] QCA 139, considered R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, considered R v TAS[2021] QCA 49, cited
COUNSEL:	B J Power KC, with D V Nguyen, for the applicant S L Dennis for the respondent
SOLICITORS:	Richardson McGhie for the applicant Director of Public Prosecutions (Queensland) for the respondent