R v Kolb - [2007] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kolb [2007] QCA 180

PARTIES:

R
v
KOLB, Peter Desmond
(applicant/appellant)

FILE NO/S:

CA No 29 of 2007
DC 2585 of 2006
DC 3002 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2007

JUDGES:

Holmes JA, Fryberg and Philippides JJ
Separate reasons for judgment of each member of the Court, Holmes JA and Philippides J concurring as to the orders made, Fryberg J dissenting in part

ORDER:

1. Allow the application for leave to appeal
2. Set aside the sentence imposed at first instance
3. Substitute a sentence of four and a half year’s imprisonment with a parole eligibility date set at
9 February 2008

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 was sentenced to
12 months imprisonment imposed on one count of dangerous operation of a motor vehicle and two serious assaults, and a cumulative four years imprisonment imposed in respect of two counts of malicious act with intent – where sentencing discretion miscarried because pre-sentence custody wrongly declared – whether sentencing discretion should be re-exercised

Criminal Code 1899 (Qld), s 27
Penalties and Sentences Act 1992 (Qld), s 159A

COUNSEL:

C W Heaton for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The applicant seeks leave to appeal against the following sentences: 12 months imprisonment imposed on one count of dangerous operation of a motor vehicle and two serious assaults; and four years imprisonment, cumulative on the first term, imposed in respect of two counts of malicious act with intent. A parole eligibility date was set at 9 August 2008, and 166 days in pre-sentence custody was declared. The applicant contends that the sentence as a whole is manifestly excessive; the argument is not with the head sentence but with the parole eligibility date which, it is said, should have been set much earlier: the date suggested is 9 August 2007.

The offences for which the applicant was sentenced arose in the aftermath of an acrimonious marriage breakdown. On 4 April 2005, two police officers went to his home to serve him with a Domestic Violence Protection Order. Having told them to get off the property, he went into his garage and commenced to reverse his car out of the driveway, disobeying directions to stop and swerving around the police vehicle which was parked there. In the process, he ran over the foot of one of the officers and struck his leg and hip. That officer was forced to jump over the bonnet of the vehicle to avoid further injury; his companion managed to…

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 Kolb

Details

AGLC: R v Kolb [2007] QCA 180
Case: [2007] QCA 180
Decision Date: 1 June 2007

CaseChat Overview and Summary

The case of R v Kolb involved an appeal against the sentence imposed on the applicant following his conviction for various offences. The applicant was sentenced to a total of five years imprisonment, with 12 months for dangerous operation of a motor vehicle and two serious assaults, and a cumulative four years for two counts of malicious act with intent. The applicant sought to appeal the sentence on the basis that the sentencing discretion miscarried due to the pre-sentence custody being wrongly declared. The appeal was heard in the relevant appellate court, which was required to decide whether the sentencing discretion should be re-exercised.

The central legal issue before the court was whether the sentencing discretion should be re-exercised due to the misdeclaration of the pre-sentence custody. The applicant argued that the error in the declaration of pre-sentence custody led to an incorrect calculation of the total custodial period, which in turn affected the overall sentence imposed. The court had to consider whether this misdeclaration constituted a significant error that warranted the re-exercise of the sentencing discretion. Furthermore, the court needed to determine the appropriate sentence to substitute the one that was set aside.

The court allowed the application for leave to appeal and set aside the original sentence. It found that the misdeclaration of pre-sentence custody constituted a significant error that affected the exercise of the sentencing discretion. Consequently, the court decided to re-exercise the sentencing discretion. The court substituted the original sentence with a new sentence of four and a half years imprisonment, with a parole eligibility date set at 9 February 2008. This decision was based on the court's assessment of the appropriate sentence, taking into account the errors in the original sentencing process.

Orders

Orders of the court

1. Allow the application for leave to appeal

2. Set aside the sentence imposed at first instance

3. Substitute a sentence of four and a half year’s imprisonment with a parole eligibility date set at

9 February 2008

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 Kolb [2007] QCA 180
PARTIES:	R v KOLB, Peter Desmond (applicant/appellant)
FILE NO/S:	CA No 29 of 2007 DC 2585 of 2006 DC 3002 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	1 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2007
JUDGES:	Holmes JA, Fryberg and Philippides JJ Separate reasons for judgment of each member of the Court, Holmes JA and Philippides J concurring as to the orders made, Fryberg J dissenting in part
ORDER:	1. Allow the application for leave to appeal 2. Set aside the sentence imposed at first instance 3. Substitute a sentence of four and a half year’s imprisonment with a parole eligibility date set at 9 February 2008
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 was sentenced to 12 months imprisonment imposed on one count of dangerous operation of a motor vehicle and two serious assaults, and a cumulative four years imprisonment imposed in respect of two counts of malicious act with intent – where sentencing discretion miscarried because pre-sentence custody wrongly declared – whether sentencing discretion should be re-exercised Criminal Code 1899 (Qld), s 27 Penalties and Sentences Act 1992 (Qld), s 159A
COUNSEL:	C W Heaton for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent