R v James

[2012] QCA 256

SUPREME COURT OF QUEENSLAND

CITATION:

R v James  [2012] QCA 256

PARTIES:

R
v
JAMES, Morris Allan Momo
(applicant)

FILE NO/S:

CA No 112 of 2012
DC No 631 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

24 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2012

JUDGE:

Margaret McMurdo P, Holmes JA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on a plea of guilty to breaching a domestic violence order – where he punched the complainant at a hospital – where it was the sixth breach of a domestic violence order by the applicant relating to the complainant – where the applicant was sentenced to nine months imprisonment with parole release set after four months in the Magistrates Court – where he appealed to the District Court on the grounds that the sentence was excessive and that the magistrate erred in not setting parole release at the one third mark – where that appeal was dismissed – whether there must be a discount in a head sentence of at least one third on a plea of guilty – whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118(3)
Penalties and Sentences Act 1992 (Qld), s 13(1)

COUNSEL:

The applicant appeared on his own behalf
B J Merrin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HENRY J:  The applicant was convicted on 7 November 2011 in the Townsville Magistrates Court on his plea of guilty to breaching a domestic violence protection order.  He was sentenced to nine months imprisonment and his parole release date set after four months thereof.

He appealed that sentence to the District Court on the grounds it was excessive and that the Magistrate "erred in not imposing a parole release date at the one third mark." 

His appeal was dismissed in the Townsville District Court on 4 April 2012.

He now seeks leave to appeal the decision to the Court of Appeal pursuant to District Court of Queensland Act 1967 (Qld) s 118(3).

While the general discretion conferred by s 118(3) on this Court to grant or refuse leave to appeal must always be exercised according to the nature of the case, see Smith v Ash [2011] 2 Qd R 175 at189 per Fraser JA, such leave is not lightly given. It will usually only be granted where there is a reasonable argument that there is both an error to be corrected and a need to correct a substantial injustice to an applicant, see Arnold Electrical & Data Installations P/L…