R v Hurst

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hurst [2006] QCA 75

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 EX TEMPORE ON:

17 March 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

ORDER:

1. Application for leave to appeal against sentence is granted
2. Appeal is allowed
3. Sentence of two months is set aside and sentence of thirteen days' imprisonment is imposed

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

THE PRESIDENT: At least the majority of the judges agree that the application for leave to appeal should be granted and the appeal allowed. Instead of ordering that the applicant serve two months of the suspended imprisonment, order instead that he serve 13 days imprisonment.

The Court will make that order today and we will publish our reasons later.

‑‑‑‑‑

CaseChat Overview and Summary

The appeal in R v Hurst involved the applicant who had been convicted of indecently touching a ten-year-old girl outside her clothing on her pubic area, an offence occurring at the lower end of seriousness for such crimes. The applicant was sentenced to six months' imprisonment, suspended with an operational period of one year. Four months later, the applicant was convicted of driving under the influence of liquor during the operational period of the suspended sentence. Subsequently, the applicant was dealt with for committing an offence during the operational period and was ordered to serve two months of the six-month suspended term of imprisonment. The applicant sought leave to appeal against the sentence imposed for the second offence, arguing that the judge should have extended the operational period of the suspended sentence instead of activating the suspended sentence and imposing two months' imprisonment.

The legal issue before the court was whether the second judge should have extended the operational period of the suspended sentence rather than activating the suspended sentence and imposing two months' imprisonment. This required the court to consider the appropriate judicial response when an offender breaches the terms of a suspended sentence and whether extending the operational period is a viable alternative to activating the sentence.

The court held that the second judge was incorrect in activating the suspended sentence and imposing two months' imprisonment. Instead, the court should have extended the operational period of the suspended sentence. This approach was considered more appropriate given the circumstances of the case, including the relatively minor nature of the initial offence and the fact that the subsequent offence was committed during the operational period of the suspended sentence. The court concluded that the second judge should have imposed a new sentence rather than activating the suspended sentence, as the latter did not adequately reflect the seriousness of the circumstances.

Accordingly, the application for leave to appeal against the sentence was granted, the appeal was allowed, and the sentence of two months' imprisonment was set aside. In its place, the court imposed a sentence of thirteen days' imprisonment.

Orders of the court

1. Application for leave to appeal against sentence is granted

2. Appeal is allowed

3. Sentence of two months is set aside and sentence of thirteen days' imprisonment is imposed

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v Hurst [2006] QCA 75
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 EX TEMPORE ON:	17 March 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
ORDER:	1. Application for leave to appeal against sentence is granted 2. Appeal is allowed 3. Sentence of two months is set aside and sentence of thirteen days' imprisonment is imposed
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