R v Kissier - [2005] QCA 375

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kissier [2005] QCA 375

PARTIES:

R
v
KISSIER, Merrill William
(applicant)

FILE NO/S:

CA No 181 of 2005
DC No 2137A of 2003
DC No 1755 of 2005

DC No 1756 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2005

JUDGES:

McMurdo P, Keane JA and Douglas J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal dismissed

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 REFUSED – where applicant convicted on his own pleas of guilty of two counts of assault occasioning bodily harm, five counts of burglary and stealing, one count of stealing and four counts of breaking and entering premises and stealing – where applicant sentenced to nine months imprisonment for the first assault – where sentenced to three years imprisonment for the nine stealing offences and six months imprisonment for the second assault and the stealing offence – where the sentences for the second assault and stealing all concurrent but cumulative on the sentence for the first assault – where the sentences of three years imprisonment were suspended after one year for an operational period of four years – where applicant argued that five and a half months in pre‑sentence custody should count as time already served – where applicant was on remand for other offences during those five and a half months – where sentencing judge took that period into account notwithstanding it was not able to be declared time already served under s 161 of the Penalties and Sentences Act 1992 (Qld) – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 156A, s 161

R v Ball [2000] QCA 46; CA No 344 of 1999, 28 February 2000, cited
R v Bryzak [1996] QCA 385; CA No 321 of 1996; 2 October 1996, cited
R v Cooper [1996] QCA 283; CA 170 of 1996; 12 July 1996, cited

R v Gee [1998] QCA 321; CA No 247 of 1998; 18 September 1998, cited

COUNSEL:

The applicant appeared on his own behalf

D L Meredith for the respondent

SOLICITORS:

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

MURDO PMc: I agree with Douglas J's reasons for refusing the application for leave to appeal against sentence.

KEANE JA: I have had the advantage of reading in draft the reasons of Douglas J. I agree with his Honour's reasons and with the orders he proposes.

DOUGLAS J: On 17 June 2005 the applicant was convicted on his own pleas of guilty of two counts of assault occasioning bodily harm, five counts of burglary and stealing,…

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 Kissier

Details

AGLC: R v Kissier [2005] QCA 375
Case: [2005] QCA 375
Decision Date: 7 October 2005

CaseChat Overview and Summary

The applicant, Kissier, was convicted of multiple offences including two counts of assault occasioning bodily harm, five counts of burglary and stealing, one count of stealing, and four counts of breaking and entering premises and stealing. He was sentenced to nine months imprisonment for the first assault, three years imprisonment for the nine stealing offences and six months imprisonment for the second assault and the stealing offence. The sentences for the second assault and stealing offences were all concurrent but cumulative on the sentence for the first assault. The sentences of three years imprisonment were suspended after one year for an operational period of four years. Kissier sought leave to appeal against the sentence on the basis that it was manifestly excessive.

The court was required to determine whether the sentence imposed by the trial judge was manifestly excessive. Kissier argued that the five and a half months he spent in pre-sentence custody should count as time already served, which would reduce his overall sentence. He was on remand for other offences during those five and a half months. The sentencing judge had taken that period into account, even though it could not be declared time already served under section 161 of the Penalties and Sentences Act 1992 (Qld).

The court considered the principles governing appeals against sentence and noted that an appeal against sentence will only be allowed if the sentence is manifestly excessive or if the sentence is outside the range of sentences which a properly directed sentencing judge could have imposed. The court found that the sentences imposed were not manifestly excessive. The trial judge had taken into account all relevant factors and had exercised his discretion within the bounds of what was appropriate. The court also noted that Kissier's pre-sentence custody time had been considered by the sentencing judge. The application for leave to appeal was dismissed.

No orders were made in favour of the applicant. The application for leave to appeal against the sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

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 Kissier [2005] QCA 375
PARTIES:	R v KISSIER, Merrill William (applicant)
FILE NO/S:	CA No 181 of 2005 DC No 2137A of 2003 DC No 1755 of 2005 DC No 1756 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2005
JUDGES:	McMurdo P, Keane JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal dismissed
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 REFUSED – where applicant convicted on his own pleas of guilty of two counts of assault occasioning bodily harm, five counts of burglary and stealing, one count of stealing and four counts of breaking and entering premises and stealing – where applicant sentenced to nine months imprisonment for the first assault – where sentenced to three years imprisonment for the nine stealing offences and six months imprisonment for the second assault and the stealing offence – where the sentences for the second assault and stealing all concurrent but cumulative on the sentence for the first assault – where the sentences of three years imprisonment were suspended after one year for an operational period of four years – where applicant argued that five and a half months in pre‑sentence custody should count as time already served – where applicant was on remand for other offences during those five and a half months – where sentencing judge took that period into account notwithstanding it was not able to be declared time already served under s 161 of the Penalties and Sentences Act 1992 (Qld) – whether sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 156A, s 161 R v Ball [2000] QCA 46; CA No 344 of 1999, 28 February 2000, cited R v Bryzak [1996] QCA 385; CA No 321 of 1996; 2 October 1996, cited R v Cooper [1996] QCA 283; CA 170 of 1996; 12 July 1996, cited R v Gee [1998] QCA 321; CA No 247 of 1998; 18 September 1998, cited
COUNSEL:	The applicant appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent