R v Kite - [1999] QCA 162

[1999] QCA 162

COURT OF APPEAL

McMURDO P MOYNIHAN J ATKINSON J

CA No 50 of 1999

THE QUEEN
v

SANDRA LOUISE KITE (Applicant)

BRISBANE

DATE 06/05/99

JUDGMENT

THE PRESIDENT: The applicant seeks leave to appeal against a sentence imposed upon her in the Southport District Court on 15 February 1999 of three months imprisonment and two years probation for an offence of assault occasioning bodily harm.

The applicant is 19 years old. She has extensive prior convictions as a juvenile for unlawfully taking shop goods away; assault occasioning bodily harm for which she was placed on 100 hours community service; unlawful use of a motor vehicle for which she was given 12 months probation and four counts of unlawful use or possession of a motor vehicle, stealing, credit card fraud and entering a premises with intent to commit an indictable offence for which she was sentenced to six months detention.

She was released from that detention on 22 January 1998 and was supervised in the community under that order until 23 March 1998. This offence occurred on 16 April 1998, less than a month after that supervision was completed.

As an adult she has been dealt with for a minor drug offence in the Southport Magistrates Court on 24 September 1998. Whilst this was not a prior conviction it is relevant in that the criminal record indicates it occurred on 3 September ]998. She was therefore on bail for the present offence at that time: this is relevant to the submissions made as to her rehabilitation.

The facts of the offence are as follows: the complainant, a 15-year-old girl, was in Surfers Paradise with her girlfriend aged 16. They had left an under 18s dance party at about 1 a.m. when they walked past the applicant and her girlfriend, Osborne.

Osborne called out to them and the two chased the complainant and her friend. The applicant assaulted the complainant whilst Osborne assaulted the complainant’s friend.

The applicant hit the complainant several times with a closed first to the head and tried to knee her. Most of the punches struck the complainant’s hands with which she was covering her face. The complainant escaped and obtained assistance whilst Osborne continued to assault the friend.

The applicant told police in a record of interview on 8 May 1998 that she assaulted the complainant because she gave them a dirty look as they walked past. The applicant expressed some remorse in the interview but later referred to the complainant and her friend as sluts.

Osborne, a 16 year old with no relevant prior history, was sentenced without conviction to 160 hours community service and ordered to pay $1,000 compensation under the Juvenile Justice Act 1992 for her assault on the friend of the complainant in this case.

It is not submitted that there should be close parity with Osborne’s sentence in the circumstances or that parity principles warrant interference with the sentence here.

The applicant at sentence had a seven-month-old child whom…

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 Kite

Details

AGLC: R v Kite [1999] QCA 162
Case: [1999] QCA 162
Decision Date: 6/05/1999

CaseChat Overview and Summary

In the case of R v Kite, the applicant sought leave to appeal against a sentence imposed by the Southport District Court. The applicant, aged 19, was sentenced to three months imprisonment and two years probation for an offence of assault occasioning bodily harm. The applicant had a history of prior convictions, including unlawful taking of shop goods, assault occasioning bodily harm, unlawful use of a motor vehicle, and multiple counts of unlawful use or possession of a motor vehicle, stealing, credit card fraud, and entering a premises with intent to commit an indictable offence. The assault in question occurred less than a month after the applicant's release from detention for these prior offences.

The legal issue before the court was whether the sentence imposed by the Southport District Court was manifestly excessive or involved any error on the part of the sentencing judge. The court considered the applicant's age, antecedents, attempts at rehabilitation, and the fact that the complainant was not seriously injured. The court also noted the prevalence of similar offences in Surfers Paradise and the applicant's subsequent minor drug offence committed while on bail for the present offence. The court held that the sentence imposed was not manifestly excessive or involved any error on the part of the sentencing judge.

The court refused the applicant's application for leave to appeal against the sentence. The court also ordered a bench warrant for the arrest of the applicant, which was to lie in the Registry for seven days to allow the applicant to organise her affairs. The appeal was dismissed and the applicant was to commence her sentence.

Orders