R v Kemble - [2003] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION: R v Kemble [2003] QCA 190
PARTIES: R
v
KEMBLE, Leon Andrew
(applicant)
FILE NO/S: CA No 57 of 2003
DC No 224 of 2002
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING District Court at Maryborough
COURT:
DELIVERED EX 8 May 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 8 May 2003
JUDGES: McMurdo P, Williams JA and Holmes J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application for leave to appeal against sentence refused
CATCHWORDS: CRIMINAL LAW – JUDGMENT AND PUNISHMENT –
SENTENCE – where applicant pleaded not guilty to assault
occasioning bodily harm – where applicant convicted and
sentenced to 18 months imprisonment, suspended after
serving 6 months with an operational period of 3 years –
where co-offender pleaded guilty, convicted and sentenced to
lesser sentence – where co-offender had significant criminal
history – whether sentence was manifestly excessive in all the
circumstances
Lowe v The Queen (1984) 154 CLR 606, considered
COUNSEL: B Devereaux for the applicant M J Copley for the respondent
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

THE PRESIDENT: The applicant pleaded not guilty to one count of assault occasioning bodily harm in company. He was convicted after a two day trial and sentenced to 18 months imprisonment, suspended after serving six months with an operational period of three years. He applies for leave to appeal against that sentence claiming that it was manifestly excessive in the circumstances.

The primary judge found that the applicant was not involved in the physical attack upon the victim and assumed only a secondary role to his co-offender, Scott Ashley Duncan. Duncan pleaded guilty on the 22nd of January 2003 and was sentenced to 18 months imprisonment suspended after four months with an operational period of three years. It was further ordered that an exhibit be placed in an envelope and sealed to be opened only on the order of the Judge.

The applicant's only contention is that as Duncan has a worse criminal history and was the principal offender a justifiable sense of grievance arises out of the heavier

penalty imposed on this applicant who had mitigating
personal circumstances.

Duncan was 18 years old at the time of the offence and 19 at sentence. He had a significant criminal history commencing in 1997 in the Childrens Court with minor drug offences for which he was cautioned. In 1998, he was found guilty of assault occasioning bodily harm and entering premises and committing an indictable offence and placed on 18 months juvenile probation. The next day he was ordered to perform 20 hours community service for minor property offences. In November that year he was convicted in the Maryborough District Court of two charges of entering premises and committing an indictable offence and break and sentenced to 18 months probation. In July 1999 he was convicted of stealing, threatening violence and wilful…

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 Kemble

Details

AGLC: R v Kemble [2003] QCA 190
Case: [2003] QCA 190
Decision Date: 8/05/2003

CaseChat Overview and Summary

The case of R v Kemble involved the applicant who pleaded not guilty to charges of assault occasioning actual bodily harm. The applicant was ultimately convicted by the court and subsequently sentenced. Dissatisfied with the sentence, the applicant sought leave to appeal against the sentence. The application was made directly to the higher court, which was tasked with reviewing the appropriateness and legality of the sentence handed down.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inappropriate given the circumstances of the case. The court was required to balance the severity of the crime with the principles of sentencing and any mitigating factors presented. This involved an examination of the sentencing principles relevant to assault occasioning actual bodily harm, the role of discretion in sentencing, and the proportionality of the sentence relative to the offence.

In assessing the application, the court considered the arguments presented by the applicant, the evidence and submissions made during the original trial, and the sentencing remarks of the trial judge. The court found that the sentence was within the range of what could be considered appropriate for the offence, taking into account the relevant legal standards and precedents. The court also noted that the trial judge had properly considered the mitigating factors and had exercised their sentencing discretion judiciously. Consequently, the application for leave to appeal against the sentence was dismissed, as the court was not satisfied that the sentence was manifestly excessive or that there were errors in the application of sentencing principles.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Kemble [2003] QCA 190
PARTIES:	R v KEMBLE, Leon Andrew (applicant)
FILE NO/S:	CA No 57 of 2003 DC No 224 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING	District Court at Maryborough
COURT:
DELIVERED EX	8 May 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2003
JUDGES:	McMurdo P, Williams JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant pleaded not guilty to assault occasioning bodily harm – where applicant convicted and sentenced to 18 months imprisonment, suspended after serving 6 months with an operational period of 3 years – where co-offender pleaded guilty, convicted and sentenced to lesser sentence – where co-offender had significant criminal history – whether sentence was manifestly excessive in all the circumstances
Lowe v The Queen (1984) 154 CLR 606, considered
COUNSEL:	B Devereaux for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent