R v Keong - [2007] QCA 163

SUPREME COURT OF QUEENSLAND

CITATION:

R v Keong [2007] QCA 163

PARTIES:

R
v
KEONG, John Owen
(applicant/appellant)

FILE NO/S:

CA No 30 of 2007
DC No 28 of 2007
DC No 181 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

25 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2007

JUDGES:

Williams and Holmes JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Set aside the sentence of two years imprisonment on the count of aggravated unlawful stalking and substitute a sentence of 18 months imprisonment
2. Set aside the sentence of 12 months imprisonment on the count of common assault and substitute a sentence of six months imprisonment
3. Otherwise uphold the orders of the District Court

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 the applicant, on a plea of guilty, was convicted of one count of aggravated unlawful stalking and one count of common assault – where he was sentenced to two years imprisonment in respect of the first count, and 12 months in respect of the second, to be served concurrently – whether, having regard to the applicant’s plea of guilty and his intellectual disability, and the unlikelihood of the applicant being granted parole on the proposed date, the sentence was manifestly excessive

Domestic and Family Violence Protection Act 1989 (Qld)

R v AN [2003] QCA 349; CA No 196 of 2003, 11 August 2003, considered
R v Kofoed[2005] QCA 438; CA No 255 of 2005, 25 November 2005, considered
R v Van Den Heuvel [2006] QCA 177; CA No 344 of 2005, 26 May 2006, considered

COUNSEL:

B G 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

WILLIAMS JA: I agree with the orders proposed by Holmes JA for the reasons which she has published.

HOLMES JA: The applicant seeks leave to appeal against sentences imposed on one count of aggravated unlawful stalking, the circumstances of aggravation being a threat to use violence and contravention of a Protection Order, and one count of common assault. In respect of the first, he was sentenced to two years imprisonment and in respect of the second, 12 months concurrent. Both sentences were ordered to be served cumulatively upon 508 days imprisonment, being the activated, unserved balance of a suspended two and half year sentence imposed on 8 November 2005. A parole eligibility date was set at 9 October 2008.

A Schedule of Facts tendered by consent shows that the applicant was the subject of an order made under the Domestic and Family Violence Protection…

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 Keong

Details

AGLC: R v Keong [2007] QCA 163
Case: [2007] QCA 163
Decision Date: 25 May 2007

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the applicant, Keong, appealed against his sentence for one count of aggravated unlawful stalking and one count of common assault. Keong had pleaded guilty to both offences, and was sentenced to two years imprisonment for the aggravated unlawful stalking and 12 months imprisonment for the common assault, to be served concurrently. The appeal was brought on the grounds that the sentence was manifestly excessive, particularly in light of Keong's plea of guilty, his intellectual disability, and the unlikelihood of him being granted parole on the proposed date.

The court considered the principles of sentencing, particularly whether the sentence imposed was manifestly excessive. The court noted that while Keong's plea of guilty and his intellectual disability were factors that could be taken into account, they did not necessarily mean that the sentence should be reduced. The court also considered the severity of the offences, the need for deterrence, and the protection of the community. In relation to parole, the court noted that the likelihood of Keong being granted parole was not a factor that could be taken into account in determining the length of the sentence.

The court found that while the sentence was severe, it was not manifestly excessive. However, the court was satisfied that the sentence for the aggravated unlawful stalking was too high, and reduced it from two years to 18 months imprisonment. The court also reduced the sentence for the common assault from 12 months to six months imprisonment. The court otherwise upheld the orders of the District Court.

The court's orders were that the sentence of two years imprisonment on the count of aggravated unlawful stalking be set aside and substituted with a sentence of 18 months imprisonment. The sentence of 12 months imprisonment on the count of common assault was also set aside and substituted with a sentence of six months imprisonment. The court otherwise upheld the orders of the District Court.

Orders

Orders of the court

1. Set aside the sentence of two years imprisonment on the count of aggravated unlawful stalking and substitute a sentence of 18 months imprisonment

2. Set aside the sentence of 12 months imprisonment on the count of common assault and substitute a sentence of six months imprisonment

3. Otherwise uphold the orders of the District Court

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 Keong [2007] QCA 163
PARTIES:	R v KEONG, John Owen (applicant/appellant)
FILE NO/S:	CA No 30 of 2007 DC No 28 of 2007 DC No 181 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	25 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	10 May 2007
JUDGES:	Williams and Holmes JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Set aside the sentence of two years imprisonment on the count of aggravated unlawful stalking and substitute a sentence of 18 months imprisonment 2. Set aside the sentence of 12 months imprisonment on the count of common assault and substitute a sentence of six months imprisonment 3. Otherwise uphold the orders of the District Court
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 the applicant, on a plea of guilty, was convicted of one count of aggravated unlawful stalking and one count of common assault – where he was sentenced to two years imprisonment in respect of the first count, and 12 months in respect of the second, to be served concurrently – whether, having regard to the applicant’s plea of guilty and his intellectual disability, and the unlikelihood of the applicant being granted parole on the proposed date, the sentence was manifestly excessive Domestic and Family Violence Protection Act 1989 (Qld) R v AN [2003] QCA 349; CA No 196 of 2003, 11 August 2003, considered R v Kofoed[2005] QCA 438; CA No 255 of 2005, 25 November 2005, considered R v Van Den Heuvel [2006] QCA 177; CA No 344 of 2005, 26 May 2006, considered
COUNSEL:	B G 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