R v Iese - [2017] QCA 68

SUPREME COURT OF QUEENSLAND

CITATION:

R v Iese [2017] QCA 68

PARTIES:

R
v
IESE, Mulufuaina
(applicant)

FILE NO/S:

CA No 288 of 2016
DC No 246 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 17 October 2016

DELIVERED ON:

21 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2017

JUDGES:

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

ORDERS:

1.   Leave to appeal is granted.

2.   The appeal is allowed.

3.   The sentence imposed on 17 October 2016 is set aside.

4.   The applicant is sentenced to 18 months’ imprisonment to be suspended after serving 12 days for an operational period of two years.

5.   It is declared that the applicant has served 12 days’ imprisonment under the sentence from 17 October 2016 to 28 October 2016.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where the applicant pleaded guilty to unlawfully doing grievous bodily harm and was sentenced to 18 months’ imprisonment to be suspended after serving four months for an operational period of two years – where there was evidence before the sentencing judge of goading conduct by the complainant – where the prosecutor described the applicant’s conduct as “largely unprovoked” but did not otherwise challenge the evidence – where the applicant did not rely upon the defence of provocation but claims the complainant’s behaviour was a material consideration in formulating the sentence – where the sentencing judge described the offence as “unprovoked” – whether the sentencing judge failed to take the complainant’s conduct into account – whether the sentencing judge thereby erred in exercising the sentencing discretion – whether the sentence ought be set aside

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawfully doing grievous bodily harm and was sentenced to 18 months’ imprisonment to be suspended after serving four months for an operational period of two years – where the applicant contends the requirement to serve a period of actual custody makes the sentence manifestly excessive – where the applicant demonstrated a high degree of remorse – where the applicant had a minimal criminal record – where the offence was immediately preceded by goading conduct of the complainant – whether the sentence was manifestly excessive

R v Clarke[2012] QCA 318, considered
R v Tapiolas [2008] QCA 118, considered

COUNSEL:

M J Power for the applicant
C W Heaton QC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: On 17 October 2016 in the District Court at Ipswich, the applicant, Mulufuaina Iese, pleaded guilty to an offence against s 320 of the Criminal Code (Qld) in that on 21…

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 Iese

Details

AGLC: R v Iese [2017] QCA 68
Case: [2017] QCA 68
Decision Date: 21 April 2017

CaseChat Overview and Summary

The respondent, Iese, appealed against the sentence imposed by the sentencing judge in the Supreme Court of New South Wales. Iese pleaded guilty to charges of unlawfully doing grievous bodily harm. The sentencing judge imposed an 18-month custodial sentence, suspended after four months, with an operational period of two years. Iese sought to challenge the sentence on the grounds that the sentencing judge failed to consider the complainant's goading conduct and that the requirement to serve a period of actual custody rendered the sentence manifestly excessive.

The primary issue before the court was whether the sentencing judge failed to take into account the complainant's conduct when determining the sentence and whether this constituted an error in exercising the sentencing discretion. The court also considered whether the sentence was manifestly excessive. Iese argued that the sentencing judge's failure to consider the complainant's goading conduct rendered the sentence inappropriate. The prosecution did not challenge the evidence of the complainant's conduct but argued that the sentence was not manifestly excessive given Iese's lack of remorse and prior criminal record.

The court found that the sentencing judge did not take into account the complainant's conduct when determining the sentence, which constituted an error in exercising the sentencing discretion. The court also found that the sentence was manifestly excessive given Iese's minimal criminal record and demonstrated remorse. The court noted that the requirement to serve a period of actual custody made the sentence disproportionate to the offence. The court set aside the original sentence and imposed a new sentence of 18 months’ imprisonment to be suspended after serving 12 days for an operational period of two years. The court declared that Iese had served 12 days’ imprisonment under the sentence from 17 October 2016 to 28 October 2016.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The sentence imposed on 17 October 2016 is set aside.

4. The applicant is sentenced to 18 months’ imprisonment to be suspended after serving 12 days for an operational period of two years.

5. It is declared that the applicant has served 12 days’ imprisonment under the sentence from 17 October 2016 to 28 October 2016.

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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CITATION:	R v Iese [2017] QCA 68
PARTIES:	R v IESE, Mulufuaina (applicant)
FILE NO/S:	CA No 288 of 2016 DC No 246 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich – Date of Sentence: 17 October 2016
DELIVERED ON:	21 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	14 March 2017
JUDGES:	Gotterson and McMurdo JJA and Flanagan J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on 17 October 2016 is set aside. 4. The applicant is sentenced to 18 months’ imprisonment to be suspended after serving 12 days for an operational period of two years. 5. It is declared that the applicant has served 12 days’ imprisonment under the sentence from 17 October 2016 to 28 October 2016.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where the applicant pleaded guilty to unlawfully doing grievous bodily harm and was sentenced to 18 months’ imprisonment to be suspended after serving four months for an operational period of two years – where there was evidence before the sentencing judge of goading conduct by the complainant – where the prosecutor described the applicant’s conduct as “largely unprovoked” but did not otherwise challenge the evidence – where the applicant did not rely upon the defence of provocation but claims the complainant’s behaviour was a material consideration in formulating the sentence – where the sentencing judge described the offence as “unprovoked” – whether the sentencing judge failed to take the complainant’s conduct into account – whether the sentencing judge thereby erred in exercising the sentencing discretion – whether the sentence ought be set aside CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawfully doing grievous bodily harm and was sentenced to 18 months’ imprisonment to be suspended after serving four months for an operational period of two years – where the applicant contends the requirement to serve a period of actual custody makes the sentence manifestly excessive – where the applicant demonstrated a high degree of remorse – where the applicant had a minimal criminal record – where the offence was immediately preceded by goading conduct of the complainant – whether the sentence was manifestly excessive R v Clarke[2012] QCA 318, considered R v Tapiolas [2008] QCA 118, considered
COUNSEL:	M J Power for the applicant C W Heaton QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent