R v Jaramillo - [2007] QCA 420

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jaramillo [2007] QCA 420

PARTIES:

R
v
JARAMILLO, Alejandro
(applicant)

FILE NO/S:

CA No 224 of 2007
DC No 1558 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

23 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2007

JUDGES:

Williams and Muir JJA and McMurdo J
Separate reasons for each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal allowed

2. Appeal allowed, but only to the extent that a parole eligibility date of 13 February 2009 be substituted in lieu of 13 August 2009

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON –GENERALLY – where applicant pleaded guilty to one count of doing grievous bodily harm and was sentenced to 5 years imprisonment with eligibility for parole after 2 years – whether the sentence was manifestly excessive having regard to certain mitigating factors

R v Berryman [2005] QCA 471, distinguished
R v Bryan; Ex parte A-G (Qld)[2003] QCA 18, distinguished
R v Rehavi [1998] QCA 157, distinguished

COUNSEL:

A Moynihan SC for the appellant

D Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions for the respondent

MUIR JA: The applicant pleaded guilty to one count of doing grievous bodily harm and was sentenced in the District Court on 13 August 2007 to imprisonment for five years. 13 August 2009 was fixed as the parole eligibility date.

The applicant was born on 10 December 1983 and was thus 21 years of age on 16 January 2005, when the offence was committed. His prior criminal history was minor, he had been dealt with summarily on 10 October 2005 for possessing a dangerous drug and utensils and for contravening a direction. No conviction was recorded.

The offence arose out of a fracas outside the front of the Surfers Paradise International Resort. The complainant was in one of two groups involved in the incident, the applicant was a member of the other group.

At about 5 a.m., the male complainant, aged 22, in company with three other men, approached the entry of the hotel where they were staying. As they did so, they encountered a group of 10 to 15 people, including the applicant and his brother.

After an exchange of words, one of the complainant's companions walked over to the other group and issued an invitation to fight.
A member of the applicant's group held a beer bottle to that man's neck, threatening to cut him with it, and then struck him on the head with the bottle. A brawl ensued. In the course of the brawl, the applicant armed himself with a bottle which he had smashed and…

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 Jaramillo

Details

AGLC: R v Jaramillo [2007] QCA 420
Case: [2007] QCA 420
Decision Date: 23 November 2007

CaseChat Overview and Summary

In the case of R v Jaramillo, the applicant appealed against his sentence following a guilty plea to a charge of causing grievous bodily harm. The applicant was sentenced to five years imprisonment, with eligibility for parole after serving two years. The applicant sought to have the sentence reduced, arguing that the original parole eligibility date was too far in the future given the mitigating factors present in the case. The appeal was heard in the Supreme Court of Victoria.

The central legal issue in the appeal was whether the original sentencing decision was manifestly excessive. The applicant argued that the original parole eligibility date did not appropriately account for certain mitigating factors, such as the applicant's early guilty plea and otherwise good character. The Crown, on the other hand, contended that the original sentence was appropriate and that there were no grounds for altering the parole eligibility date. The court had to determine whether the mitigating factors presented were sufficient to warrant a change in the parole eligibility date.

In allowing the appeal, the court found that the original parole eligibility date did not adequately reflect the mitigating factors present in the case. The court noted that the applicant's early guilty plea and otherwise good character were significant factors that should have been considered more heavily in the sentencing decision. The court substituted a new parole eligibility date of 13 February 2009, which was earlier than the original date of 13 August 2009. The court held that this new date was more appropriate given the mitigating factors and thus allowed the appeal to the extent of modifying the parole eligibility date.

The orders of the court included granting the application for leave to appeal and allowing the appeal to the extent of substituting a parole eligibility date of 13 February 2009. The original sentence of five years imprisonment remained unchanged, but the modification to the parole eligibility date provided some relief to the applicant.

Orders

Orders of the court

1. Application for leave to appeal allowed

2. Appeal allowed, but only to the extent that a parole eligibility date of 13 February 2009 be substituted in lieu of 13 August 2009

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 Jaramillo [2007] QCA 420
PARTIES:	R v JARAMILLO, Alejandro (applicant)
FILE NO/S:	CA No 224 of 2007 DC No 1558 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED EX TEMPORE ON:	23 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2007
JUDGES:	Williams and Muir JJA and McMurdo J Separate reasons for each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal allowed 2. Appeal allowed, but only to the extent that a parole eligibility date of 13 February 2009 be substituted in lieu of 13 August 2009
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON –GENERALLY – where applicant pleaded guilty to one count of doing grievous bodily harm and was sentenced to 5 years imprisonment with eligibility for parole after 2 years – whether the sentence was manifestly excessive having regard to certain mitigating factors R v Berryman [2005] QCA 471, distinguished R v Bryan; Ex parte A-G (Qld)[2003] QCA 18, distinguished R v Rehavi [1998] QCA 157, distinguished
COUNSEL:	A Moynihan SC for the appellant D Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent