CA No 36 of 2011 DC No 20 of 2011 DC No 16 of 2011
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Maryborough
DELIVERED ON:
20 May 2011
DELIVERED AT:
Brisbane
HEARING DATE:
9 May 2011
JUDGES:
Margaret McMurdo P, Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, Muir and Chesterman JJA concurring as to the order made, Margaret McMurdo P dissenting
ORDER:
Application for leave to appeal against sentence refused
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawfully wounding her husband – where the applicant pleaded guilty to a summary offence of breaching the terms of a protection order – where the applicant was sentenced to 18 months’ imprisonment with release on parole after six months – whether the sentence imposed was manifestly excessive
S M Ryan for the applicant B J Merrin for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
[1] MARGARET McMURDO P: I will not repeat the facts set out by Chesterman JA in his Honour's comprehensive and thoughtful reasons, other than as necessary to explain why I, unlike Chesterman JA, would grant the application for leave to appeal against sentence and allow the appeal.
[2] The applicant's offending in throwing a knife at her husband and wounding his leg was a concerning example of domestic violence. Only a few weeks earlier, she was convicted of breaching a protection order in respect of her husband. This suggested her violence was escalating. Although the complainant's injuries were fortunately minor (he needed only one stitch to his leg), the applicant's use of a knife, when she was both angry with the complainant and intoxicated, meant that much more serious injury, even death, could have resulted from her conduct. The community does not tolerate domestic violence and courts must impose appropriately condign sentences to deter perpetrators, whether male or female, and to express the community's disapprobation of such behaviour.
[3] There were, however, many mitigating features in this case beyond the fact that the complainant, through good fortune, was not seriously injured and that the applicant was cooperative with the authorities and pleaded guilty to an ex officio indictment at an early time. She was 41 at the time of her offending and, apart from the related episode of domestic violence a few weeks earlier, had no prior convictions. There was no psychiatric or psychological material placed before the sentencing court, but it…
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
AGLC
R v Jackson [2011] QCA 103
Case
[2011] QCA 103
Decision Date
CaseChat Overview and Summary
In this matter, the applicant, Jackson, appealed against her sentence imposed by the Magistrates’ Court of Victoria. Jackson pleaded guilty to charges of unlawfully wounding her husband and breaching the terms of a protection order. She was sentenced to 18 months’ imprisonment with release on parole after serving six months. Jackson argued that the sentence was manifestly excessive and sought leave to appeal against the sentence.
The primary issue for the court was to determine whether the sentence imposed by the Magistrates' Court was manifestly excessive. The court considered the principles of sentencing and the circumstances of the case, including the nature of the offence, the applicant's criminal history, and the need for deterrence and rehabilitation. The court also examined the principles of proportionality and whether the sentence imposed was disproportionate to the offence committed.
The court concluded that the sentence was not manifestly excessive. It considered the severity of the offence, the need to protect the community, and the applicant's criminal history. The court found that the sentence imposed was proportionate to the offence and took into account the need for deterrence and rehabilitation. The court further noted that the applicant had expressed remorse and was committed to rehabilitation. The application for leave to appeal against the sentence was therefore refused.
Orders
Orders of the court
Application for leave to appeal against sentence refused