R v Huff

Case [2012] QCA 138 29 May 2012

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Huff [2012] QCA 138

PARTIES:

R
v
HUFF, Celine May
(applicant)

FILE NO/S:

CA No 38 of 2012
DC No 231 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

29 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2012

JUDGES:

Fraser and Gotterson JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant the application for leave to appeal against sentence. 1.

Allow the appeal.2.

Set aside the sentence and orders made in the District Court on 8 February 2012. 3.

Vary the sentence and orders made in the District Court on 31 January 2012 so that those orders provide that:4.

(a) In relation to count 1:

A conviction is recorded. (i)

(b) In relation to count 2:

A conviction is recorded. (ii)

A probation order is made having the effect:(iii)

1) The applicant is sentenced to a term of imprisonment of six weeks.

2) At the end of that term of imprisonment the applicant be released on probation under the supervision of an authorised corrective services officer for the remainder of the period of three years commencing on 31 January 2012.

The order is to contain a general requirement that the applicant must report to an authorised corrective services officer at Townsville on or before 31 May 2012.(iv)

The order is to contain an additional requirement that the applicant submit to such medical, psychiatric or psychological assessment and treatment as it is directed by an authorised corrective services officer.(v)

(c) Pursuant to s 359F of the Criminal Code the applicant must not contact Byron Anthony Lund or Joyce Sharron Oates during the period of five years from 31 January 2012.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant charged with two counts of stalking, with circumstance of aggravation for intentionally threatening to use violence – where applicant pleaded not guilty but changed pleas to guilty after Crown case almost concluded – where sentencing was adjourned until preparation of pre-sentence report, including psychiatric or psychological report – where applicant sentenced, and then re-sentenced later after sentencing judge informed of opinion of corrective services officer that one order inconsistent with Penalties and Sentences Act 1992 – where applicant re-sentenced to 12 months imprisonment with fixed parole date and a probation order upon satisfaction of conditions in s 93(1) of Penalties and Sentences Act 1992 and special condition to attend psychological/psychiatric counselling as required – where sentencing judge made restraining order under s 359F of Criminal Code prohibiting applicant from contacting either complainant for five years – where the applicant challenged order for imprisonment on count 2 to extent that it imposed further imprisonment beyond the six weeks served in custody before released on bail pending appeal – where applicant argued that sentencing judge…

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 Huff

Details

AGLC: R v Huff [2012] QCA 138
Case: [2012] QCA 138
Decision Date: 29 May 2012

CaseChat Overview and Summary

The case of R v Huff involves an applicant appealing against their sentence imposed by the District Court. The applicant was charged with two counts of stalking, with an aggravating circumstance of intentionally threatening to use violence. After initially pleading not guilty, the applicant changed their plea to guilty as the Crown case was concluding. Sentencing was adjourned to allow for the preparation of a pre-sentence report, including a psychiatric or psychological report. The applicant was initially sentenced and then re-sentenced after the sentencing judge was informed of the opinion of a corrective services officer that one order was inconsistent with the Penalties and Sentences Act 1992. The applicant was re-sentenced to 12 months imprisonment with a fixed parole date, a probation order upon satisfaction of certain conditions, and a special condition to attend psychological or psychiatric counselling as required. A restraining order was also made prohibiting the applicant from contacting the complainants for five years.

The primary legal issues in this case revolve around the applicant's challenge to the order for imprisonment on count 2, which they argued imposed further imprisonment beyond the six weeks served in custody before being released on bail pending appeal. The applicant argued that the sentencing judge imposed a sentence not permitted by law and that the sentence was manifestly excessive, particularly considering the applicant's mental disorder. The court had to determine whether the applicant's challenge to the sentence was valid and whether the sentence imposed was indeed excessive or inadequate.

The court granted the application for leave to appeal against the sentence. It found that the sentence imposed by the District Court was manifestly excessive and not in accordance with the law. The court allowed the appeal, set aside the original sentence and orders, and varied them to reflect a conviction on both counts. For count 1, a conviction was recorded, and for count 2, a conviction was recorded along with a probation order. The probation order included a term of six weeks imprisonment followed by release on probation for the remainder of three years, subject to certain conditions including medical, psychiatric, or psychological assessment and treatment. The restraining order prohibiting contact with the complainants for five years was also varied to reflect the changes in the sentence.

Orders

Orders of the court

Grant the application for leave to appeal against sentence. 1.

Allow the appeal.2.

Set aside the sentence and orders made in the District Court on 8 February 2012. 3.

Vary the sentence and orders made in the District Court on 31 January 2012 so that those orders provide that:4.

(a) In relation to count 1:

A conviction is recorded. (i)

(b) In relation to count 2:

A conviction is recorded. (ii)

A probation order is made having the effect:(iii)

1) The applicant is sentenced to a term of imprisonment of six weeks.

2) At the end of that term of imprisonment the applicant be released on probation under the supervision of an authorised corrective services officer for the remainder of the period of three years commencing on 31 January 2012.

The order is to contain a general requirement that the applicant must report to an authorised corrective services officer at Townsville on or before 31 May 2012.(iv)

The order is to contain an additional requirement that the applicant submit to such medical, psychiatric or psychological assessment and treatment as it is directed by an authorised corrective services officer.(v)

(c) Pursuant to s 359F of the Criminal Code the applicant must not contact Byron Anthony Lund or Joyce Sharron Oates during the period of five years from 31 January 2012.

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.

Actions

Citations

R v Huff [2012] QCA 138

Most Recent Citation

R v Gaerlan [2014] QCA 145

Cases Citing This Decision

R v Tsougranis [2017] QCA 264
Citation 1 (Para 1)

…ted that the sentence did not accommodate the diminished significance of general and personal deterrence in such a case. [2][2006] QCA 19. [3][2012] QCA 138. [4][2015] QCA 257.…
R v Coutts [2016] QCA 206
Citation 2 (Para 5)

…exercise of the sentencing discretion, whether that mental state was categorised as a mental disorder[12] or emotional distress.[13] [12] R v Huff [2012] QCA 138 at [20] per Fraser JA, citing Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53]-[54]. [13] Neal v The Queen (1982) 149 CLR 305; [1982] HCA…
R v Gaerlan [2014] QCA 145
Citation 3

…itted – whether the application for leave to appeal should be granted R v Dean [1999] QCA 378, cited R v Huff [2012] QCA 138, cited R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, cited R v Spina [2012] QCA 179, cited COUNSEL: J Greggery for the applicant J Phillips for the respondent SOLICITORS: Malcolmson Lawye…

See all citing cases →

Cases Cited

R v Yarwood [2011] QCA 367
Citation 1 (Para 1)

…gh Court said: [2] Penalties and Sentences Act 1992, s 9(1)(c) and (a). [3] Penalties and Sentences Act 1992, s 9(1)(c) and (d). [4]See R v Yarwood [2011] QCA 367 at [23] – [26], referring to R v Tsiaras [1996] 1 VR 398 at 400, R v Verdins (2007) 16 VR 269; [2007] VSCA 102 at [5], [32], and R v Goodger [2009] QCA…
Muldrock v The Queen [2011] HCA 39
Citation 2

…Qld), s 359F Penalties and Sentences Act 1992 (Qld), s 9, s 91, s 92, s 93, s 96 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 , considered R v Cook [1995] QCA 210, distinguished R v Hughes [1999] 1 Qd R 389; [1998] QCA 61, considered R v Macdonald [2008] QCA 384, distinguished R v Maniadis [1997] 1 Qd…
R v Morris [2010] QCA 315
Citation 3 (Para 1)

…ce, punishment and denunciation is substantially reduced by the effect upon the applicant’s offending by a mental disorder. [6][2008] QCA 384. [7][2010] QCA 315. [8]See R v Morris at [21] and R v Macdonald at [16]. [9][1995] QCA 210. [10][1997] 1 Qd R 593.…
R v Goodger [2009] QCA 377
Citation 4 (Para 1)

…367 at [23] – [26], referring to R v Tsiaras [1996] 1 VR 398 at 400, R v Verdins (2007) 16 VR 269; [2007] VSCA 102 at [5], [32], and R v Goodger [2009] QCA 377 at [21], referring also to R v Dunn [1994] QCA 147 and R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53. [5](2011) 244 CLR 120 at [53] – [54], per French…
R v Macdonald [2008] QCA 384
Citation 5 (Para 1)

…of general deterrence, punishment and denunciation is substantially reduced by the effect upon the applicant’s offending by a mental disorder. [6][2008] QCA 384. [7][2010] QCA 315. [8]See R v Morris at [21] and R v Macdonald at [16]. [9][1995] QCA 210. [10][1997] 1 Qd R 593.…
R v Verdins [2007] VSCA 102
Citation 6 (Para 1)

…9(1)(c) and (d). [4]See R v Yarwood [2011] QCA 367 at [23] – [26], referring to R v Tsiaras [1996] 1 VR 398 at 400, R v Verdins (2007) 16 VR 269; [2007] VSCA 102 at [5], [32], and R v Goodger [2009] QCA 377 at [21], referring also to R v Dunn [1994] QCA 147 and R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53. [5]…
R v Jiminez [1999] NSWCCA 7
Citation 7 (Para 1)

…d (a). [3] Penalties and Sentences Act 1992, s 9(1)(c) and (d). [4]See R v Yarwood [2011] QCA 367 at [23] – [26], referring to R v Tsiaras [1996] 1 VR 398 at 400, R v Verdins (2007) 16 VR 269; [2007] VSCA 102 at [5], [32], and R v Goodger [2009] QCA 377 at [21], referring also to R v Dunn [1994] QCA 147 and…
R v Hughes [1998] QCA 61
Citation 8

…Queen (2011) 244 CLR 120; [2011] HCA 39 , considered R v Cook [1995] QCA 210, distinguished R v Hughes [1999] 1 Qd R 389; [1998] QCA 61, considered R v Macdonald [2008] QCA 384, distinguished R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, distinguished R v Morris [2010] QCA 315, distinguished COUNSEL: J J Allen…
R v Maniadis [1996] QCA 242
Citation 9

…[1999] 1 Qd R 389; [1998] QCA 61, considered R v Macdonald [2008] QCA 384, distinguished R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, distinguished R v Morris [2010] QCA 315, distinguished COUNSEL: J J Allen for the applicant B J Merrin for the respondent SOLICITORS: Legal Aid Queensland for the applicant Dir…
R v Dunn [1994] QCA 147
Citation 10 (Para 1)

…] 1 VR 398 at 400, R v Verdins (2007) 16 VR 269; [2007] VSCA 102 at [5], [32], and R v Goodger [2009] QCA 377 at [21], referring also to R v Dunn [1994] QCA 147 and R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53. [5](2011) 244 CLR 120 at [53] – [54], per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bel…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 9, 9(1)(b), 9(1)(c), 9(1)(e)
5 mentions (from Para 1)

CITATION:	R v Huff [2012] QCA 138
PARTIES:	R v HUFF, Celine May (applicant)
FILE NO/S:	CA No 38 of 2012 DC No 231 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	29 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2012
JUDGES:	Fraser and Gotterson JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Grant the application for leave to appeal against sentence. 1. Allow the appeal.2. Set aside the sentence and orders made in the District Court on 8 February 2012. 3. Vary the sentence and orders made in the District Court on 31 January 2012 so that those orders provide that:4. (a) In relation to count 1: A conviction is recorded. (i) (b) In relation to count 2: A conviction is recorded. (ii) A probation order is made having the effect:(iii) 1) The applicant is sentenced to a term of imprisonment of six weeks. 2) At the end of that term of imprisonment the applicant be released on probation under the supervision of an authorised corrective services officer for the remainder of the period of three years commencing on 31 January 2012. The order is to contain a general requirement that the applicant must report to an authorised corrective services officer at Townsville on or before 31 May 2012.(iv) The order is to contain an additional requirement that the applicant submit to such medical, psychiatric or psychological assessment and treatment as it is directed by an authorised corrective services officer.(v) *(c) Pursuant to s 359F of the Criminal Code* the applicant must not contact Byron Anthony Lund or Joyce Sharron Oates during the period of five years from 31 January 2012.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant charged with two counts of stalking, with circumstance of aggravation for intentionally threatening to use violence – where applicant pleaded not guilty but changed pleas to guilty after Crown case almost concluded – where sentencing was adjourned until preparation of pre-sentence report, including psychiatric or psychological report – where applicant sentenced, and then re-sentenced later after sentencing judge informed of opinion of corrective services officer that one order inconsistent with Penalties and Sentences Act 1992 – where applicant re-sentenced to 12 months imprisonment with fixed parole date and a probation order upon satisfaction of conditions in s 93(1) of Penalties and Sentences Act 1992 and special condition to attend psychological/psychiatric counselling as required – where sentencing judge made restraining order under s 359F of Criminal Code prohibiting applicant from contacting either complainant for five years – where the applicant challenged order for imprisonment on count 2 to extent that it imposed further imprisonment beyond the six weeks served in custody before released on bail pending appeal – where applicant argued that sentencing judge…