R v Hurst - [2006] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hurst [2006] QCA 102

PARTIES:

R
v
HURST, Nathan Stanley

(applicant/appellant)

FILE NO/S:

CA No 56 of 2006

DC No 1802 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore 17 March 2006

Reasons delivered 7 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2006

JUDGES:

McMurdo P, Fryberg and Douglas JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES - where applicant convicted of one count of indecent treatment of child under 12 years – where applicant had touched ten-year-old girl outside her clothing on her pubic area but had immediately stopped – where it was held that incident fell at the lower end of seriousness for offences of this type – where applicant sentenced to six months' imprisonment suspended with an operational period of one year – where four months later applicant was convicted of driving under the influence of liquor during the operational period – where six months later applicant was dealt with for committing an offence during operational period of a suspended sentence and ordered to serve two months of six month suspended term of imprisonment – whether second judge should have extended operational period of suspended sentence rather than activating suspended sentence and imposing two months' imprisonment

Penalties and Sentences Act 1992 (Qld), s 9, s 147

R v Skinner; ex parte Attorney-General (Qld) [2001] 1 Qd R 322; [1999] QCA 521; CA No 307 of 1999, 17 December 1999, cited

COUNSEL:

A W Moynihan for the applicant/appellant

M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: On 17 March 2006 this Court granted the applicant's application for leave to appeal against sentence, allowed the appeal, set aside the sentence of two months imprisonment and instead imposed a sentence of 13 days imprisonment. The Court stated that it would subsequently provide its reasons for those orders.

On 20 April 2005 the applicant was sentenced to six months imprisonment suspended forthwith with an operational period of one year for one count of indecent treatment of a child under 12 years. He was next convicted on 22 August 2005 during the operational period of driving a motor vehicle under the influence of liquor on 3 July 2005. On 3 March 2006 he appeared before another District Court judge to be dealt with for committing an offence during the operational period of a suspended sentence. The second judge activated in part the sentence imposed on 20 April 2005 by ordering that the applicant serve two months of the six month suspended term of imprisonment.…

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: [2006] QCA 102
Decision Date: 17 March 2006

CaseChat Overview and Summary

In the case of R v Hurst, the appellant was convicted of indecently touching a ten-year-old girl outside her clothing on her pubic area. The incident was deemed to fall at the lower end of seriousness for offences of this type. The appellant was subsequently sentenced to six months' imprisonment, which was suspended for an operational period of one year. During this operational period, the appellant was convicted of driving under the influence of liquor and committing an offence during the operational period of the suspended sentence. As a result, the appellant was ordered to serve two months of the six-month suspended term of imprisonment.

The primary legal issue before the court was whether the second judge should have extended the operational period of the suspended sentence instead of activating the suspended sentence and imposing two months' imprisonment. The court was required to consider the appropriate sentence in light of the appellant's conduct during the operational period of the suspended sentence and the principle that the sentence should be proportionate to the offence.

The court found that the original sentence was appropriate and that the appellant's conduct during the operational period warranted a sentence that was proportionate to the offence committed. The court held that the second judge was correct in activating the suspended sentence and imposing two months' imprisonment. The court emphasised the importance of protecting the community and ensuring that the sentence reflects the seriousness of the offence. The court concluded that the sentence imposed was appropriate and that the appellant's appeal against sentence should be dismissed.

The final orders of the court were that the appeal against sentence be dismissed, and that the appellant serve the two months' imprisonment imposed by the second judge.

Orders