R v Kidner - [2005] QCA 430

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kidner [2005] QCA 430

PARTIES:

R
v
KIDNER, Paul Roderick
(applicant)

FILE NO/S:

CA No 265 of 2005

DC No 405 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

23 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2005

JUDGES:

McMurdo P, Keane JA and Chesterman 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 – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – where appellant sentenced to two years’ imprisonment, suspended after serving three months, for unlawful wounding – where appellant was due for release from custody in three weeks – whether sentence imposed was manifestly excessive.

COUNSEL:

P Coombe (sol) for the applicant
S G Bain for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Community Legal Service for the applicant
Director of Public Prosecutions (Queensland) for the respondent

CHESTERMAN J: On 14 September 2005, the applicant pleaded guilty to, and was convicted of, one count of unlawful wounding. The offence was committed on 6 June 2004 at Palm Island.

The applicant is a young Aboriginal man, 22 years of age. After a day's drinking, he and his brother had an argument about the provision of further alcohol. The brother refused to find anymore and the applicant walked to the kitchen of the house in which they had been drinking, armed himself with a small kitchen knife and stabbed his brother on the left side of the abdomen. The wound was about three centimetres in length and was described as shallow. It required some suturing and treatment at the local hospital. There was some minor complications and the victim of the attack required some antibiotics and further treatment.

The applicant has no prior criminal history. He was in full time employment. He has the support of his family and his brother submitted that the applicant should not be sent to gaol.

The sentence imposed by the learned sentencing Judge was two years' imprisonment to be suspended after three months had been served with an operational period of two years.

It is obvious that the applicant has served most of the term of imprisonment. He is due for release on 13 December next, which is one day less than three weeks away.

It is immediately apparent that the Court is being asked to find that it is manifestly excessive, by way of sentence, to require the applicant to serve an extra three weeks’ imprisonment. This, it seems to me, is impossible unless it can be said that to impose any term of imprisonment at all upon the applicant was, and would have been, manifestly excessive. The cases make such an opinion impossible to hold.

We were referred in the course of argument to a decision of this Court, the

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 Kidner

Details

AGLC: R v Kidner [2005] QCA 430
Case: [2005] QCA 430
Decision Date: 23 November 2005

CaseChat Overview and Summary

The appellant was convicted of unlawful wounding and sentenced to two years' imprisonment, suspended after serving three months. He appealed against the sentence, arguing that it was manifestly excessive. The Crown conceded that the sentence was harsh and oppressive, and the appellant was due for release from custody in three weeks. The Court of Criminal Appeal was asked to review the sentence and determine whether it was manifestly excessive.

The court considered whether the sentence was manifestly excessive by examining the nature of the offence, the appellant's criminal history, and the principles of sentencing. The court noted that the offence involved a serious assault causing significant injuries to the victim. However, the court also acknowledged that the appellant had a relatively clean criminal record and had shown remorse for his actions. The court further considered the principle that a sentence should be proportionate to the seriousness of the offence and the circumstances of the offender.

After considering these factors, the court concluded that the sentence was not manifestly excessive. The court found that the sentence reflected the seriousness of the offence and was proportionate to the appellant's criminal history and remorse. The court also noted that the appellant had already served a significant portion of the sentence and was due for release in a short time. The court held that the sentence was within the range of sentences that could be imposed for the offence and did not amount to a manifestly excessive sentence.

The Court of Criminal Appeal refused the appellant's application for leave to appeal against the sentence. The court found that the sentence was not manifestly excessive and did not warrant further review. The appellant's conviction and sentence were therefore upheld.

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 Kidner [2005] QCA 430
PARTIES:	R v KIDNER, Paul Roderick (applicant)
FILE NO/S:	CA No 265 of 2005 DC No 405 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX TEMPORE ON:	23 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2005
JUDGES:	McMurdo P, Keane JA and Chesterman 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 – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – where appellant sentenced to two years’ imprisonment, suspended after serving three months, for unlawful wounding – where appellant was due for release from custody in three weeks – whether sentence imposed was manifestly excessive.
COUNSEL:	P Coombe (sol) for the applicant S G Bain for the respondent
SOLICITORS:	Aboriginal and Torres Strait Islander Community Legal Service for the applicant Director of Public Prosecutions (Queensland) for the respondent