R v Irving - [2004] QCA 305

SUPREME COURT OF QUEENSLAND

CITATION:

R v Irving [2004] QCA 305

PARTIES:

R
v
IRVING, Luke Nathan

(applicant)

FILE NO/S:

CA No 246 of 2004

DC No 188 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave to appeal against sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

20 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2004

JUDGES:

McPherson JA, Jerrard JA, Dutney J

Separate reasons for judgment of each member of the Court, McPherson JA and Dutney J concurring as to the order made, Jerrard JA dissenting

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW - OFFENCES AGAINST THE PERSON – ASSAULT – SENTENCING – where applicant sentenced to six months imprisonment, notwithstanding his youth and lack of similar prior convictions, for assaulting two men because he believed them to be homosexual – whether sentence manifestly excessive

COUNSEL:

A W Moynihan for the applicant

M J Copley for the respondent

SOLICITORS:

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

McPHERSON JA: With his co-offender, the applicant for leave to appeal against sentence here, pleaded guilty in the District Court at Townsville to three counts consisting of assault occasioning bodily harm, wilful damage to property and common assault. Under s 92(1)(b) of the Penalties and Sentences Act he was sentenced to serve six months' imprisonment before being released on probation for two years.

Both the first complainant aged 28 and the second complainant aged 23 are tradesmen, the former being a cabinet-maker and the latter an electrician. They were complete strangers to the applicant and the co-offender. At about 7.30 on 26 July 2003, the complainants, who had been working on a unit in suburban Townsville, were going round to advise other occupiers of units in the block that the work would be continuing next day. Their vehicle or vehicles were parked in the parking area of the block of units.

As they were packing their tools in the car in readiness for leaving, the applicant approached the two men and began making derogatory comments, calling them "poofters" and the like. The first complainant noticed liquid dripping from the car and asked the applicant if he had urinated on it. An argument developed between them and when the second complainant tried to leave in his vehicle, the applicant spat on it and began kicking the front and back door panels causing damage, which later cost over $1,000 to repair.

The second complainant got out of his car and tried to stop the applicant from kicking it. The applicant then kicked him in the hip and when the second complainant grabbed his leg to restrain him, they both fell to the ground with the applicant on top. The applicant sat on the second complainant's chest and proceeded to punch him. The second complainant ended up face down and the applicant punched him on the back of the head and banged his face repeatedly on the concrete. While doing so, he was…

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 Irving

Details

AGLC: R v Irving [2004] QCA 305
Case: [2004] QCA 305
Decision Date: 20 August 2004

CaseChat Overview and Summary

The case of R v Irving involves an applicant who was sentenced to six months imprisonment for assaulting two men. The applicant believed the victims to be homosexual, which he claimed was the reason for the assault. The applicant argued that the sentence was manifestly excessive, given his youth and lack of similar prior convictions. The matter was brought before the court to determine whether the sentence imposed was indeed manifestly excessive.

The legal issue before the court was whether the sentence of six months imprisonment for the applicant was manifestly excessive, considering his youth and the absence of similar prior convictions. The court had to consider the principles of sentencing in relation to offences against the person, particularly assault, and whether the sentence imposed was disproportionate to the offence committed.

In assessing the sentence, the court noted that the applicant had assaulted two men because of a belief about their sexual orientation. The court acknowledged the seriousness of the offence but also considered the applicant's youth and the lack of similar prior convictions. After careful consideration of these factors, the court determined that the sentence imposed was not manifestly excessive. The court found that the sentence reflected the gravity of the offence and was appropriate in the circumstances.

Accordingly, the application was dismissed. The court upheld the sentence of six months imprisonment as it was not found to be manifestly excessive.

Orders

Orders of the court

Application dismissed

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 Irving [2004] QCA 305
PARTIES:	R v IRVING, Luke Nathan (applicant)
FILE NO/S:	CA No 246 of 2004 DC No 188 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave to appeal against sentence
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX TEMPORE ON:	20 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2004
JUDGES:	McPherson JA, Jerrard JA, Dutney J Separate reasons for judgment of each member of the Court, McPherson JA and Dutney J concurring as to the order made, Jerrard JA dissenting
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW - OFFENCES AGAINST THE PERSON – ASSAULT – SENTENCING – where applicant sentenced to six months imprisonment, notwithstanding his youth and lack of similar prior convictions, for assaulting two men because he believed them to be homosexual – whether sentence manifestly excessive
COUNSEL:	A W Moynihan for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Qld) for the respondent