R v. Hooper; ex parte Cth DPP - [2008] QCA 308

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hooper; ex parte Cth DPP [2008] QCA 308

PARTIES:

R
v
HOOPER, Daryl John
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 194 of 2008
DC No 263 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Cth DPP

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2008

JUDGES:

Mackenzie AJA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – where the respondent was convicted on his plea of guilty of one count of using a carriage service to menace – where the learned sentencing judge discharged the respondent without proceeding to conviction upon his giving security by recognisance of $500 on condition that he be of good behaviour for two years and have no contact with named persons – whether the learned sentencing judge erred in her application of s19B of the Crimes Act 1914 (Cth) – whether the sentence was manifestly inadequate

Crimes Act 1914 (Cth), s 16A, s 19B, s 20(1)(a)
Criminal Code Act 1995 (Cth), s 474.17(1)

Cobiac v Liddy (1969) 119 CLR 257; [1969] HCA 26, cited
Commissioner of Taxation v Baffsky (2001) 192 ALR 92; [2001] NSWCCA 332, applied
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
Jones v Morley (1981) 29 SASR 57, cited
Matta v Australian Competition and Consumer Commission [2000] FCA 729, considered
Moreland v Snowdon [2007] WASC 137, cited
R v Melano; ex parte Attorney-General [1995] 2 Qd R 186; [1994] QCA 523, cited
Riddle v Riddle (1952) 85 CLR 202; [1952] HCA 12, applied

COUNSEL:

P J Callaghan SC, with J N Hanna, for the appellant
R East for the respondent

SOLICITORS:

Commonwealth Director of Public Prosecutions for the appellant
Legal Aid Queensland for the respondent

MACKENZIE AJA: This is an appeal against a sentence imposed for an offence against s 474.17(1) of the Criminal Code Act 1995 (Cth) of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, to which the respondent pleaded guilty. The maximum sentence for the offence is three years imprisonment. The sentencing judge discharged the respondent under s 19B of the Crimes Act 1914 (Cth) (“the Act”) without proceeding to conviction upon his giving security by recognisance of $500, on condition that he be of good behaviour for two years and that he have no contact directly or indirectly with named persons during the period of the order.

The grounds of appeal are that the sentencing judge erred in the application of s 19B and that the sentence…

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.

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Details

Case: [2008] QCA 308
Decision Date: 3 October 2008

CaseChat Overview and Summary

The respondent, Hooper, was convicted on a plea of guilty for using a carriage service to menace. The sentencing judge discharged the respondent without proceeding to conviction, on condition that he provided security by recognisance of $500 and remained of good behaviour for two years, with no contact with certain named persons. The Commonwealth Director of Public Prosecutions (Cth DPP) appealed against the sentence, arguing that the learned sentencing judge erred in her application of section 19B of the Crimes Act 1914 (Cth) and that the sentence was manifestly inadequate.

The court was required to decide whether the sentencing judge correctly applied section 19B of the Crimes Act 1914 (Cth) and whether the sentence imposed was manifestly inadequate. The court noted that section 19B of the Crimes Act 1914 (Cth) requires courts to have regard to the need for the sentence to reflect the seriousness of the offending, to promote the rehabilitation of the offender, and to provide protection for the community. The court examined the nature and circumstances of the offence, the character and antecedents of the offender, and the circumstances surrounding the offending. The court also considered the sentence imposed by the learned sentencing judge, which was a discharge without conviction on the conditions outlined above.

The court found that the learned sentencing judge did not err in her application of section 19B of the Crimes Act 1914 (Cth). The court held that the sentence imposed was not manifestly inadequate, as it reflected the seriousness of the offending, promoted the rehabilitation of the offender, and provided protection for the community. The court noted that the discharge without conviction was an appropriate sentence in the circumstances of the case, given the respondent's plea of guilty and his willingness to provide security by recognisance and abide by the conditions imposed. The court dismissed the appeal and affirmed the sentence imposed by the learned sentencing judge.

Orders

Orders of the court

Appeal dismissed

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.

CITATION:	R v Hooper; ex parte Cth DPP [2008] QCA 308
PARTIES:	R v HOOPER, Daryl John (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)
FILE NO/S:	CA No 194 of 2008 DC No 263 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Cth DPP
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	19 September 2008
JUDGES:	Mackenzie AJA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – where the respondent was convicted on his plea of guilty of one count of using a carriage service to menace – where the learned sentencing judge discharged the respondent without proceeding to conviction upon his giving security by recognisance of $500 on condition that he be of good behaviour for two years and have no contact with named persons – whether the learned sentencing judge erred in her application of s19B of the Crimes Act 1914 (Cth) – whether the sentence was manifestly inadequate Crimes Act 1914 (Cth), s 16A, s 19B, s 20(1)(a) Criminal Code Act 1995 (Cth), s 474.17(1) Cobiac v Liddy (1969) 119 CLR 257; [1969] HCA 26, cited Commissioner of Taxation v Baffsky (2001) 192 ALR 92; [2001] NSWCCA 332, applied House v The King (1936) 55 CLR 499; [1936] HCA 40, applied Jones v Morley (1981) 29 SASR 57, cited Matta v Australian Competition and Consumer Commission [2000] FCA 729, considered Moreland v Snowdon [2007] WASC 137, cited R v Melano; ex parte Attorney-General [1995] 2 Qd R 186; [1994] QCA 523, cited Riddle v Riddle (1952) 85 CLR 202; [1952] HCA 12, applied
COUNSEL:	P J Callaghan SC, with J N Hanna, for the appellant R East for the respondent
SOLICITORS:	Commonwealth Director of Public Prosecutions for the appellant Legal Aid Queensland for the respondent