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 1999DIVISION:
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 dissentingORDER:
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 307Cameron 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,…
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- R v Houghton [2002] QCA 159
- Case
- [2002] QCA 159
- Decision Date
CaseChat Overview and Summary
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
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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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