SUPREME COURT OF QUEENSLAND
CITATION:
PARTIES:
R
v
KOFOED, Charles Christian
(applicant)FILE NO/S:
CA No 255 of 2005
DC No 252 of 2004DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Townsville
DELIVERED EX TEMPORE ON:
25 November 2005DELIVERED AT:
Brisbane
HEARING DATE:
25 November 2005
JUDGES:
de Jersey CJ, McMurdo P and McPherson JA
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Application for leave to appeal against sentence refused
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 the applicant pleaded guilty to counts of burglary, assault and stalking – where the applicant was sentenced on each count to concurrent terms of two years imprisonment suspended after six months for an operational period of three years – where the applicant was 36 years old, had an extensive prior criminal history, had breached DVOs and had served extended terms of imprisonment – where the applicant contended the sentence was manifestly excessive because the applicant was responding to the complainant’s harassing behaviour, the Crown Prosecutor at sentencing had submitted to the Judge that a non-custodial sentence would be appropriate, there was delay in proceeding with the prosecution and the applicant was the primary carer of a young child – whether the sentence was manifestly excessive
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where the sentencing Judge had imposed a custodial sentence notwithstanding the Crown Prosecutor had submitted that a non-custodial sentence would be appropriate – whether a Judge's sentencing discretion is fettered by concessions made by the Crown ProsecutorCOUNSEL:
A W Collins for the applicant
S G Bain for the respondentSOLICITORS:
Purcell Taylor for the applicant
Director of Public Prosecutions (Queensland) for the respondent
THE CHIEF JUSTICE: The applicant was on 8 September 2005 arraigned for trial on a count of burglary and assault committed on 17 May 2002 and a count of stalking with a circumstance of aggravation committed over the period 17 May 2002 to 25 February 2003. He then pleaded not guilty but changed his pleas to guilty the following morning. He was sentenced on each count to concurrent terms of two years imprisonment suspended after six months for an operational period of three years. He seeks leave to appeal on the ground the penalty is manifestly excessive.
At the time of the offences the applicant was 36 years old. He had an extensive and serious prior criminal history including convictions for burglary and violence. He had breached domestic violence orders. He had served extended terms of imprisonment.
The applicant had been an employee of the complainant. They shared a house for some time and the applicant became romantically involved with the complainant's niece whom the complainant had brought…
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- AGLC
- R v Kofoed [2005] QCA 438
- Case
- [2005] QCA 438
- Decision Date
CaseChat Overview and Summary
The central legal issues in the case were whether the sentence was manifestly excessive and whether the Crown Prosecutor’s concession at the time of sentencing had any bearing on the judicial discretion to impose a custodial sentence. The applicant argued that the sentence was manifestly excessive due to mitigating factors such as the delay in prosecution and the applicant’s role as a primary caregiver. The court had to determine if these factors warranted a reduction in the sentence.
The court found that despite the Crown Prosecutor's submission that a non-custodial sentence would be appropriate, the sentencing judge had the discretion to impose a custodial sentence based on the seriousness of the crimes and the applicant’s extensive criminal history. The court noted that the applicant’s criminal history, including previous breaches of domestic violence orders and extended terms of imprisonment, supported the imposition of a custodial sentence. The mitigating factors, while relevant, did not sufficiently outweigh the gravity of the offences and the applicant’s prior conduct to warrant a manifestly excessive sentence finding.
The application for leave to appeal against the sentence was refused. The court upheld the original sentencing decision, concluding that the sentence was neither manifestly excessive nor inappropriate given the circumstances of the case.
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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