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R v Houghton

R v Houghton

Case [2002] QCA 159 10 May 2002

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Houghton [2002] QCA 159

PARTIES:

R
v
HOUGHTON, David Barry
(applicant/appellant)

FILE NO/S:

CA No 347 of 2001
SC No 144 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

10 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2002

JUDGES:

McMurdo P, Fryberg and Mullins JJ
Separate reasons for judgment of each member of the Court, McMurdo P and Mullins J concurring as to the orders made, Fryberg J dissenting

ORDER:

1. Application for leave to appeal against sentence granted.
2. Appeal allowed. Instead of the sentence of eight years imprisonment, substitute a sentence of seven years imprisonment. Sentence imposed at first instance otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT - SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – PLEA OF GUILTY, CONTRITION AND CO-OPERATION

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS - where applicant pleaded not guilty in 1999 to murder and offered to plead guilty to accessory after the fact to murder – where applicant convicted of murder but that conviction quashed on appeal – where during retrial for murder in 2001 prosecution accepted plea of guilty to accessory after the fact to murder - where prosecution did not accept guilty plea in discharge of the indictment on murder – where jury returned a directed verdict of not guilty to murder - where applicant sentenced to 8 years imprisonment with a declaration that the 594 day period between April 2000 and 20 November 2001 was time served under the sentence - where applicant had no prior convictions but significant subsequent convictions – where applicant convicted of assault occasioning bodily harm – where applicant on home detention in respect of those offences when committed weapons offence and charged with murder – where home detention cancelled as a result of weapons offence – where applicant contends combined effect of sentences is 12 years imprisonment – whether sentencing judge gave insufficient weight to mitigating factors – where sentencing judge should have moderated sentence consistent with the totality principle

Corrective Services Act 2000 (Qld), s 75
Corrective Services Act 1988 (Qld) (repealed), s 86, s 166
Penalties and Sentences Act 1992 (Qld), s 9, s13(2)(b), s 161, s 307

Cameron v The Queen (2002) 76 ALJR 382, considered
Lister v The Queen (1996) 76 ALJR 382, considered
Mill v The Queen (1988) 166 CLR 59, considered
Postiglione v R (1997) 189 CLR 295, considered
R v Clements (1993) 58 ACrimR 167, considered
R v Coss (1995) 78 ACrimR, considered
R v Gordon (1994) 71 ACrimR 459, considered
R v F [2000] 2 QdR 331, considered
R v Hawken (1986) 27 ACrimR 32,…

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 Houghton

Details

AGLC: R v Houghton [2002] QCA 159
Case: [2002] QCA 159
Decision Date: 10 May 2002

CaseChat Overview and Summary

The case of R v Houghton involved the applicant who was initially charged with murder in 1999. He pleaded not guilty, however, he offered to plead guilty to being an accessory after the fact to the murder. The applicant was convicted of murder but this conviction was later quashed on appeal. During the retrial in 2001, the prosecution accepted a plea of guilty to the applicant being an accessory after the fact to murder. However, the prosecution did not accept the plea in the discharge of the indictment on murder. The jury returned a directed verdict of not guilty to the murder charge. The applicant was sentenced to eight years imprisonment, with a declaration that the 594-day period between April 2000 and 20 November 2001 was time served under the sentence. The applicant contended that the combined effect of the sentences was 12 years imprisonment and that the sentencing judge gave insufficient weight to mitigating factors. The applicant argued that the sentencing judge should have moderated the sentence in line with the totality principle.

The legal issues that the court had to decide were whether the sentencing judge gave insufficient weight to the mitigating factors, and whether the sentence should have been moderated in line with the totality principle. The court had to consider the applicant's plea of guilty to being an accessory after the fact to murder, the fact that he had no prior convictions but significant subsequent convictions, and the fact that the applicant was on home detention in respect of those offences when he committed the weapons offence and was charged with murder. The court also had to consider the fact that the home detention was cancelled as a result of the weapons offence.

The court found that the sentencing judge did not give sufficient weight to the mitigating factors, and that the sentence should have been moderated in line with the totality principle. The court noted that the applicant had pleaded guilty to being an accessory after the fact to murder and had shown contrition and co-operation with the prosecution. The court also noted that the applicant had no prior convictions but significant subsequent convictions, and that the applicant was on home detention in respect of those offences when he committed the weapons offence and was charged with murder. The court found that the combined effect of the sentences was disproportionate and that the sentence should be reduced to seven years imprisonment.

The court granted the applicant leave to appeal against the sentence and allowed the appeal. Instead of the sentence of eight years imprisonment, the court substituted a sentence of seven years imprisonment. The sentence imposed at first instance was otherwise confirmed. The court found that the sentencing judge did not give sufficient weight to the mitigating factors, and that the sentence should have been moderated in line with the totality principle. The court found that the combined effect of the sentences was disproportionate and that the sentence should be reduced to seven years imprisonment.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed. Instead of the sentence of eight years imprisonment, substitute a sentence of seven years imprisonment. Sentence imposed at first instance otherwise confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Houghton [2002] QCA 159

Most Recent Citation

R v Van der Vegt; ex parte [2002] QCA 535

Cases citing this decision · 5 of 5 shown

Reid v Commissioner of Police
[2018] QDC 83 Para 1

…there is no rule of thumb or arithmetical approach, normally the sentence will be reduced by up to 30 per cent for such a plea.[14] [14] R v Houghton [2002] QCA 159 at [31]; R v Amato [2013] QCA 158; R v Carlisle [2017] QCA 258 at [112].…
R v CBY
[2017] QCA 305 Para 15

…. The notional sentence ought to have been seven to eight years imprisonment, with the actual sentence being six years imprisonment. [1] R v Houghton [2002] QCA 159; R v HBI [2013] QCA 369. Respondent’s submissions…
R v Hbi
[2013] QCA 369 Para 1

…urther moderation afforded by the judge in respect of s 13A factors was also appropriate. [18][1994] QCA 137, 7-8. [19]Particularly at [22]-[26]. [20][2002] QCA 159.…
Brown v The State of Western Australia
[2008] WASCA 173 Para 7

…Counsel for the respondent also made reference to R v Houghton [2002] QCA 159; (2002) 129 A Crim R 313, a decision of the Court of Appeal of the Supreme Court of Queensland (McMurdo P, Fryberg & Mullins JJ). The applicant pleaded guilty to the offence of accessory after the fact to murder, but the plea was not ac…
R v Van der Vegt; ex parte
[2002] QCA 535

…eration for parole would not arise until the respondent had served four years. R v Hawken (1986) 27 ACrim R 32, followed R v Houghton [2002] QCA 159; CA No 347 of 2002, 10 May 2002, considered R v Lister (1996) 86 ACrim R 527, considered R v Winston (1994) 74 ACrim R 312, considered COUNSEL: R Martin for the appl…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

R v LISTER
[2013] SASCFC 17

…ntences Act 1992 (Qld), s 9, s13(2)(b), s 161, s 307 Cameron v The Queen (2002) 76 ALJR 382, considered Lister v The Queen (1996) 76 ALJR 382, considered Mill v The Queen (1988) 166 CLR 59, considered Postiglione v R (1997) 189 CLR 295, considered R v Clements (1993) 58 ACrimR 167, considered R v Coss (1995) 78 ACrimR, cons…
Cameron v the Queen
[2002] HCA 6 Para 1

…cf R v Turner; ex parte Attorney-General of Queensland [6]and Cameron v The Queen .[7] [6][1995] QCA 351, CA No 167 and 183 of 1995, 5 June 1995. [7](2002) 76 ALJR 382.…
R v Houghton and Roussetty
[2000] QCA 341 Para 1

…plicant was convicted of murder. That conviction was set aside by this Court and a new trial ordered on 12 May 2000.[1] [1] R v Houghton and Rousetty [2000] QCA 341, CA Nos 294 and 316 of 1999, 20 August 2000.…
R v Jones
[2000] QCA 84 Para 1

…of justice. It was open to him to go into the witness box on sentence and explain them if he could; but he chose not to do so. [16]Compare R v Jones [2000] QCA 84 per Davies JA.…
R v Houghton & Genrich
[1998] QCA 137 Para 1

…role after serving 15 months. He unsuccessfully applied to this Court for leave to appeal against that sentence: see R v Houghton and Genrich .[2] [2][1998] QCA 137, CA No 424 of 1997, 26 February 1998.…
Postiglione v the Queen
[1997] HCA 26

…[12] Postiglione v The Queen (1997) 189 CLR 295 at p 341 per Kirby J.…
R v Williams
[1995] QCA 522

…General of Queensland , [1995] QCA 351, CA No 167 and 183 of 1995, 5 June 1995, considered R v Williams [1995] QCA 522, CA No 362 of 1995, 28 November 1995, considered R v Winston (1994) 74 ACrimR 312, considered COUNSEL: A J Glynn SC for the applicant/appellant D C Meredith for the respondent SOLICITORS: Legal A…
R v Turner & Attorney-General of Queensland
[1995] QCA 351 Para 1

…of the proceedings brought against him was no fault of his: cf R v Turner; ex parte Attorney-General of Queensland [6]and Cameron v The Queen .[7] [6][1995] QCA 351, CA No 167 and 183 of 1995, 5 June 1995. [7](2002) 76 ALJR 382.…
Mill v The Queen
[1988] HCA 70

…07 Cameron v The Queen (2002) 76 ALJR 382, considered Lister v The Queen (1996) 76 ALJR 382, considered Mill v The Queen (1988) 166 CLR 59, considered Postiglione v R (1997) 189 CLR 295, considered R v Clements (1993) 58 ACrimR 167, considered R v Coss (1995) 78 ACrimR, considered R v Gordon (1994) 71 ACrimR 459, consider…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…ruly reflective of the offender’s character, although in practice they may have less impact than prior offences. [17] Veen v The Queen [No 2] (1988) 164 CLR 465 at p 477.…
QCA 382R v Williams
[1997] QCA 385 Para 1

…temporaneous offences to apply also when imposing sentence upon an offender who is already serving a sentence.[5] [5] Postiglione , ibid; R v Burgess [1997] QCA 385, CA No 254 of 1997, 28 October 1997; Potas, Ivan, Judicial Commission of New South Wales Sentencing Manual, Law Principles and Practice in New South…

Legislation cited in this decision · 3

Penalties and Sentences Act 1992 (Qld)
13, 182A, 4, 9 5 mentions (from Para 1)
Corrective Services Act 1988 (Qld)
166, 86 3 mentions (from Para 1)
Corrective Services Act 2000 (Qld)
75 2 mentions (from Para 1)

CITATION:	R v Houghton [2002] QCA 159
PARTIES:	R v HOUGHTON, David Barry (applicant/appellant)
FILE NO/S:	CA No 347 of 2001 SC No 144 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	10 May 2002
DELIVERED AT:	Brisbane
HEARING DATE:	8 April 2002
JUDGES:	McMurdo P, Fryberg and Mullins JJ Separate reasons for judgment of each member of the Court, McMurdo P and Mullins J concurring as to the orders made, Fryberg J dissenting
ORDER:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed. Instead of the sentence of eight years imprisonment, substitute a sentence of seven years imprisonment. Sentence imposed at first instance otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT - SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – PLEA OF GUILTY, CONTRITION AND CO-OPERATION CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS - where applicant pleaded not guilty in 1999 to murder and offered to plead guilty to accessory after the fact to murder – where applicant convicted of murder but that conviction quashed on appeal – where during retrial for murder in 2001 prosecution accepted plea of guilty to accessory after the fact to murder - where prosecution did not accept guilty plea in discharge of the indictment on murder – where jury returned a directed verdict of not guilty to murder - where applicant sentenced to 8 years imprisonment with a declaration that the 594 day period between April 2000 and 20 November 2001 was time served under the sentence - where applicant had no prior convictions but significant subsequent convictions – where applicant convicted of assault occasioning bodily harm – where applicant on home detention in respect of those offences when committed weapons offence and charged with murder – where home detention cancelled as a result of weapons offence – where applicant contends combined effect of sentences is 12 years imprisonment – whether sentencing judge gave insufficient weight to mitigating factors – where sentencing judge should have moderated sentence consistent with the totality principle Corrective Services Act 2000 (Qld), s 75 Corrective Services Act 1988 (Qld) (repealed), s 86, s 166 Penalties and Sentences Act 1992 (Qld), s 9, s13(2)(b), s 161, s 307 Cameron v The Queen (2002) 76 ALJR 382, considered Lister v The Queen (1996) 76 ALJR 382, considered Mill v The Queen (1988) 166 CLR 59, considered Postiglione v R (1997) 189 CLR 295, considered R v Clements (1993) 58 ACrimR 167, considered R v Coss (1995) 78 ACrimR, considered R v Gordon (1994) 71 ACrimR 459, considered R v F [2000] 2 QdR 331, considered R v Hawken (1986) 27 ACrimR 32,…