R v Hood

Case [2005] QCA 159 13 May 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Hood [2005] QCA 159

PARTIES:

R
v
HOOD, Dean Christopher
(applicant/appellant)

FILE NO/S:

CA No 38 of 2005
DC No 146 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

13 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2005

JUDGES:

McPherson and Jerrard JJA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Leave to appeal against sentence granted
2.   Appeal allowed
3.   Sentence imposed for burglary on count 1 varied by      deleting the recommendation that the applicant be      eligible to apply for a post-prison community based      release order after serving nine months, and order      instead that that sentence be suspended after nine      months
4. Sentence imposed on count 2 for unlawful assault occasioning bodily harm be set aside and order instead pursuant to s 92(1)(b)(ii) that the applicant be sentenced to a term of imprisonment for nine months and that at the end of that term be released under the supervision of an authorised Corrective Services officer for a period of two years, it being a term of that order that the applicant undergo and complete as directed a cognitive skills program, an anger management program, and a re-offenders’ program
5. Sentences imposed on counts 4, 6, and 7 for unlawful      assault and deprivation of liberty be set aside and in      lieu thereof sentences of nine months imprisonment be      imposed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – applicant pleaded guilty to burglary with actual violence, assault occasioning bodily harm, assault and deprivation of liberty offences – sentence of 27 months imprisonment imposed with a recommendation for post-prison community based release after nine months – whether the sentence should have been suspended after nine months instead of the recommendation

PROCEDURE – COURTS AND JUDGES GENERALLY – PRECEDENTS – PRECEDENTS GENERALLY – REVIEW BY COURT OF OWN DECISIONS – applicant sought a sentence suspension after nine months followed by an intensive correction order for an 18 month period – s 112 Penalties and Sentences Act 1992 (Qld) prohibits this order – recommendation for parole eligibility could not be given effect for administrative reasons – concern that applicant would be required to remain in prison well past the recommended parole date to complete rehabilitation programs – previous Court of Appeal decision held that suspended sentences cannot be ordered concurrently with probation orders for the same or other offences – whether that decision should be reversed

Corrective Services Act 2000 (Qld), s 141, Sch 3
Penalties and Sentences Act 1992 (Qld), s 92, s 112

Queensland v The Commonwealth (1977) 139 CLR 585, applied
R v A and S; ex parte A-G [1999] QCA 503; [2001] 2 Qd R 62, considered
R v Arana [2000] QCA 184; CA No…

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 Hood

Details

AGLC: R v Hood [2005] QCA 159
Case: [2005] QCA 159
Decision Date: 13 May 2005

CaseChat Overview and Summary

In the case of R v Hood, the applicant appealed against the sentence imposed by the lower court. He had pleaded guilty to various charges, including burglary with actual violence, assault occasioning bodily harm, and deprivation of liberty offences. The sentence imposed was 27 months imprisonment with a recommendation for post-prison community based release after nine months. The applicant sought to have the sentence suspended after nine months, followed by an intensive correction order for an 18-month period. However, section 112 of the Penalties and Sentences Act 1992 (Qld) prohibits this order, and a recommendation for parole eligibility could not be given effect due to administrative reasons. The applicant was concerned that he would be required to remain in prison well past the recommended parole date to complete rehabilitation programs.

The legal issues in the appeal centred on whether the sentence should have been suspended after nine months instead of the recommendation, and whether the previous Court of Appeal decision that suspended sentences cannot be ordered concurrently with probation orders for the same or other offences should be reversed. The Court of Appeal considered the arguments presented by both parties and examined the relevant statutory provisions and precedents. The Court of Appeal granted leave to appeal against the sentence and allowed the appeal. The sentence imposed for burglary on count 1 was varied by deleting the recommendation that the applicant be eligible to apply for a post-prison community based release order after serving nine months, and instead, the sentence was suspended after nine months. The sentence imposed on count 2 for unlawful assault occasioning bodily harm was set aside and replaced with a sentence of nine months imprisonment, with release under the supervision of an authorised Corrective Services officer for a period of two years, subject to the completion of specified programs. The sentences imposed on counts 4, 6, and 7 for unlawful assault and deprivation of liberty were also set aside and replaced with sentences of nine months imprisonment.

Orders

Orders of the court

1. Leave to appeal against sentence granted

2. Appeal allowed

3. Sentence imposed for burglary on count 1 varied by deleting the recommendation that the applicant be eligible to apply for a post-prison community based release order after serving nine months, and order instead that that sentence be suspended after nine months

4. Sentence imposed on count 2 for unlawful assault occasioning bodily harm be set aside and order instead pursuant to s 92(1)(b)(ii) that the applicant be sentenced to a term of imprisonment for nine months and that at the end of that term be released under the supervision of an authorised Corrective Services officer for a period of two years, it being a term of that order that the applicant undergo and complete as directed a cognitive skills program, an anger management program, and a re-offenders’ program

5. Sentences imposed on counts 4, 6, and 7 for unlawful assault and deprivation of liberty be set aside and in lieu thereof sentences of nine months imprisonment be imposed

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.

Citations

AGLC Citation

R v Hood [2005] QCA 159

Most Recent Citation

R v Kynaston [2005] QCA 322

Cases citing this decision · 12 of 12 shown

Garcia-Godos v R; MH v R
[2023] NSWCCA 145 Para 43

…& Co Pty Limited [2005] WASCA 159 at [24]-[25]; The Queen v White [1967] SASR 184 (reversed in 122 CLR 467, but not on this point ); R v Hood [2005] QCA 159; 2 Qd R 54 at [43]-[45]. … [294] The phrases “ plainly wrong ” or “ clearly wrong ” can be understood to focus on at least one or more of the following attri…
Lamont v Queensland Police Service
[2018] QDC 10 Para 1

…I accept the submissions of the respondent (see [4.10] of the written submissions) that R v Hood [2005] QCA 159 is authority for the proposition that a defendant may be sentenced to both a wholly suspended sentence for an offence and probation on a different offence. However the respondent submits that the learne…
Doig v Commissioner of Police
[2016] QDC 320

…rim R 67 R v Eveleigh [2002] QCA 219 R v Gilles, ex parte Attorney-General [2002] 1 Qd R 404 R v Hammond [1997] 2 Qd R 195 R v Hood [2005] QCA 159 R v Miller [2011] QCA 160 R v Nagy [2004] Qd R 63 R v Tsiaras [1996] 1 VR 398; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 Sbresni v Commissioner of Police [2016…
Gibson v Queensland Police Service
[2016] QDC 264 Para 1

…to analysis, and eventually not followed, in Hood . The reasoning of Jerrard JA is set out as follows:8 7 [2000] QCA 16. 8 R v Hood [2005] 2 Qd R 54; [2005] QCA 159.…
R v Boehmke
[2011] QCA 174 Para 1

…probation order, best addresses the competing exacerbating and mitigating factors. [10][2005] 2 Qd R 54, Jerrard JA, Helman J agreeing, esp at [48]; [2005] QCA 159.…
R v Lloyd
[2011] QCA 12 Para 1

…n of a sentence permitted by s 92(1)(b) of the Penalties and Sentences Act 1992 is unavailable. Instead the course endorsed by Jerrard JA in R v Hood [2005] QCA 159 at [48] should be followed.…
R v Lacey; ex parte Attorney-General
[2009] QCA 274

…6; [1989] CCA 220, cited R v Hood [2005] 2 Qd R 54; [2005] QCA 159, cited R v Jones (1995) 38 NSWLR 652, distinguished R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272, cited R v Katia; ex parte A-G (Qld) [2006] QCA 300, cited R v Kimmins [2006] QCA 438, cited R v Kirby; ex parte A-G (Qld) [2009] QCA 35, cited R…
Gett v Tabet
[2009] NSWCA 76

…QCA 159; 2 Qd R 54 Re Tyler; Ex parte Foley [1994] HCA 25; 181 CLR 18 Read v Bishop of Lincoln [1892] AC 644 Regina v G [2003] UKHL 50; [2004] 1 AC 1034 RJE v Secretary to the Department of Justice [2008] VSCA 265 Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 Rogers v Whitaker [1992] HCA 58; 175…
R v Salsone; ex parte A-G (Qld)
[2008] QCA 220 Para 1

…imary judge. For that reason, fairness dictates that the shorter sentence of two years probation is now appropriate for count 2. [9][2005] 2 Qd R 54; [2005] QCA 159.…
R v Murray
[2006] QCA 516

…A 458; CA No 264 of 1999, 2 November 1999, applied R v G [1994] QCA 86; CA No 10 of 1994, 12 April 1994, applied R v Hood [2005] QCA 159; CA No 38 of 2005, 13 May 2005, applied R v K [2003] QCA 521; CA No 290 of 2003, 20 November 2003, applied R v Walker [1998] QCA 378; CA No 271 of 1998, 8 October 1998, applied…
R v Chilton Ca333/04
[2005] NZCA 295 Para 44

…the conclusion that the earlier decision was wrong. The Court of Appeal of Queensland has also taken this approach: see for example R v Hood [2005] QCA 159 at [44] – [45]. Similar comments were made by the Full Court of the Supreme Court of Western Australia in Re the Full Board of the Guardianship and Administr…
R v Kynaston
[2005] QCA 322

…lties and Sentences Act 1992 (Qld), s 93, s 94(1)(d) R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, considered R v Hood [2005] QCA 159; CA No 38 of 2005, 13 May 2005, applied R v Maxfield [2000] QCA 320; [2002] 1 Qd R 417, cited COUNSEL: D L Kellie for the applicant/appellant S G Bain for the respondent SOLICITOR…

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Cases cited in this decision · 18 of 18 shown

R v Vincent
[2023] NSWSC 8 Para 1

…emarked that in the case then being considered the combination of the sentences imposed represented a satisfactory result that was quite workable. In R v Vincent (2000) 112 A Crim R 433 this Court wrote (at 436), in response to a submission that it was not open to impose an order for suspended imprisonment in conjunc…
R v Daly
[2004] QCA 385 Para 1

…of the sentencing judge. In R v MacKenzie this Court held the error in the assumption enlivened the power under s 188(1)(c) of the Act; in R v Daly [2004] QCA 385 at [6] and [9] that the error meant the sentencing discretion had miscarried, and (at [31]) that it meant some other sentence was warranted in law and…
Sysel v Dinon
[2002] QCA 149

…000, considered R v Vincent; ex parte A-G (Qld) [2000] QCA 250; (2000) 112 A Crim R 433, considered Sysel v Dinon [2002] QCA 149; [2003] 1 Qd R 212, considered COUNSEL: The applicant/appellant appeared on his own behalf D Meredith for the respondent SOLICITORS: The applicant/appellant appeared on his own behalf D…
Sweeney v Volunteer Marine Rescue Currumbin Inc
[2000] QCA 455 Para 1

…ra Corp v Treloar was quoted with approval by the President when giving the decision of this Court in Sweeney v Volunteer Marine Rescue Currumbin Inc [2000] QCA 455. That joint judgment in Telstra Corp v Treloar , in the passage in it immediately following the opinion cited with approval in Sweeney v Volunteer Ma…
Telstra Corporation Ltd v Treloar
[2000] FCA 1170 Para 1

…nces while permitting concurrent terms of up to one year’s actual imprisonment and probation for different offences. [7] Telstra Corp Ltd v Treloar (2000) 102 FCR 595 at 603…
R v MacKenzie
[2000] QCA 324

…te A-G [1975] Qd R 44, considered R v M; ex parte A-G [1999] QCA 442; [2000] 2 Qd R 543, considered R v Mackenzie [2000] QCA 324; [2002] 1 Qd R 410, considered R v Sysel [2000] QCA 233; CA No 8 of 2000, 16 June 2000, considered R v Vincent; ex parte A-G (Qld) [2000] QCA 250; (2000) 112 A Crim R 433, considered Sy…
R v Vincent; ex parte
[2000] QCA 250

…0, considered R v Sysel [2000] QCA 233; CA No 8 of 2000, 16 June 2000, considered R v Vincent; ex parte A-G (Qld) [2000] QCA 250; (2000) 112 A Crim R 433, considered Sysel v Dinon [2002] QCA 149; [2003] 1 Qd R 212, considered COUNSEL: The applicant/appellant appeared on his own behalf D Meredith for the responden…
R v Sysel
[2000] QCA 233 Para 1

…nd Sentences Act which necessarily affects the reasoning on which R v Craig Hughes , and the decisions which have applied it, was based. In R v Sysel [2000] QCA 233, this Court heard an application for leave to appeal from a judgment of the District Court, itself hearing an appeal from the Magistrates Court. Ther…
R v Arana
[2000] QCA 184 Para 1

…In R v Arana [2000] QCA 184 an applicant had been sentenced to three years probation and 240 hours community service on 37 counts, and to a concurrent sentence of six months imprisonment, suspended for three years, on 11 others. The Chief Justice held that order was inconsistent with R v Craig Hughes. In R v L; e…
R v Hughes
[2000] QCA 16 Para 1

…In R v Craig Hughes [2000] QCA 16 this Court heard an application in which the judge had imposed a sentence of three years imprisonment on each of two counts, suspending each after 278 days of pre-sentence custody declared to be time already served; and on another count had ordered three years probation. The res…
R v A and S; ex parte
[1999] QCA 503

…s Act 1992 (Qld), s 92, s 112 Queensland v The Commonwealth (1977) 139 CLR 585, applied R v A and S; ex parte A-G [1999] QCA 503; [2001] 2 Qd R 62, considered R v Arana [2000] QCA 184; CA No 441 of 1999, 16 May 2000, considered R v Daly [2004] QCA 385; (2004) 147 A Crim R 440, considered R v Craig Hughes [2000] Q…
R v M; ex parte Attorney-General
[1999] QCA 442 Para 1

…ewhat enlarged upon the effect of the decision in Hughes , where that decision did not necessarily require the result reached. In R v M; ex parte A-G [1999] QCA 442 this Court heard an appeal in which an intensive correction order had been imposed on one count, concurrently with a probation order on another. This…
R v. L; Ex Parte Attorney-General
[1998] QCA 468 Para 1

…prisonment, suspended for three years, on 11 others. The Chief Justice held that order was inconsistent with R v Craig Hughes. In R v L; ex parte A-G [1998] QCA 468 the Chief Justice had earlier expressed the obiter and tentative view that in that situation while a sentence remained suspended a defendant was able…
R v Hughes
[1998] QCA 61

…A Crim R 440, considered R v Craig Hughes [2000] QCA 16; CA No 306 of 1999, 11 February 2000, reversed R v Hughes [1998] QCA 61; [1999] 1 Qd R 389, considered R v Lihou; ex parte A-G [1975] Qd R 44, considered R v M; ex parte A-G [1999] QCA 442; [2000] 2 Qd R 543, considered R v Mackenzie [2000] QCA 324; [2002]…
Nguyen v Nguyen
[1990] HCA 9 Para 1

…I suggest that that is the position now applicable to the sentencing practice prohibited in R v Craig Hughes . I note that in Nguyen v Nguyen (1990) 169 CLR 245 at 269, the joint judgment[9] in the High Court was that where a Court of Appeal held itself free to depart from an earlier decision, it should do so cautiou…
R v Commonwealth Court of Conciliation and Arbitration
[1914] HCA 15 Para 1

…In The Tramways Case (1914) 18 CLR 54 Barton J wrote[8] that the High Court “can always listen to argument as to whether it ought to review a particular decision, and the strongest reason for an overruling is that a decision is manifestly wrong, and its maintenance is injurious to the public interest”. That passage…
Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation
[1949] HCA 4 Para 1

…judgment of the High Court in Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation ( Thomas’ Case ) (1949) 77 CLR 493 at 496, as expressing an appropriate principle justifying reversal of an earlier decision. In Queensland v The Commonwealth (1977) 139 CLR 585 Aickin J ref…
Queensland v Commonwealth
[1977] HCA 60 Para 1

…) (1949) 77 CLR 493 at 496, as expressing an appropriate principle justifying reversal of an earlier decision. In Queensland v The Commonwealth (1977) 139 CLR 585 Aickin J referred at page 620 to that joint judgment and the passage therein from Barton J in The Tramways Case , remarking (at CLR 621) that the expressio…

Legislation cited in this decision · 5

Corrective Services Act 2000 (Qld)
141 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
92 2 mentions (from Para 1)
Criminal Justice Act 1948 c.58
1 mention (from Para 1)
HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd
1 mention (from Para 1)
Juvenile Justice Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Hood [2005] QCA 159
PARTIES:	R v HOOD, Dean Christopher (applicant/appellant)
FILE NO/S:	CA No 38 of 2005 DC No 146 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	13 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2005
JUDGES:	McPherson and Jerrard JJA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal against sentence granted 2. Appeal allowed 3. Sentence imposed for burglary on count 1 varied by deleting the recommendation that the applicant be eligible to apply for a post-prison community based release order after serving nine months, and order instead that that sentence be suspended after nine months 4. Sentence imposed on count 2 for unlawful assault occasioning bodily harm be set aside and order instead pursuant to s 92(1)(b)(ii) that the applicant be sentenced to a term of imprisonment for nine months and that at the end of that term be released under the supervision of an authorised Corrective Services officer for a period of two years, it being a term of that order that the applicant undergo and complete as directed a cognitive skills program, an anger management program, and a re-offenders’ program 5. Sentences imposed on counts 4, 6, and 7 for unlawful assault and deprivation of liberty be set aside and in lieu thereof sentences of nine months imprisonment be imposed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – applicant pleaded guilty to burglary with actual violence, assault occasioning bodily harm, assault and deprivation of liberty offences – sentence of 27 months imprisonment imposed with a recommendation for post-prison community based release after nine months – whether the sentence should have been suspended after nine months instead of the recommendation PROCEDURE – COURTS AND JUDGES GENERALLY – PRECEDENTS – PRECEDENTS GENERALLY – REVIEW BY COURT OF OWN DECISIONS – applicant sought a sentence suspension after nine months followed by an intensive correction order for an 18 month period – s 112 Penalties and Sentences Act 1992 (Qld) prohibits this order – recommendation for parole eligibility could not be given effect for administrative reasons – concern that applicant would be required to remain in prison well past the recommended parole date to complete rehabilitation programs – previous Court of Appeal decision held that suspended sentences cannot be ordered concurrently with probation orders for the same or other offences – whether that decision should be reversed Corrective Services Act 2000 (Qld), s 141, Sch 3 Penalties and Sentences Act 1992 (Qld), s 92, s 112 Queensland v The Commonwealth (1977) 139 CLR 585, applied R v A and S; ex parte A-G [1999] QCA 503; [2001] 2 Qd R 62, considered R v Arana [2000] QCA 184; CA No…