R v Latemore - [2016] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

R v Latemore [2016] QCA 110

PARTIES:

R
v
LATEMORE, David John
(applicant)

FILE NO/S:

CA No 156 of 2015
DC No 33 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Dalby – Date of Sentence: 7 July 2015

DELIVERED ON:

29 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2016

JUDGES:

Morrison and Philip McMurdo JJA and Boddice J
Separate reasons for judgment of each member of the Court, each agreeing as to the orders made

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Vary the sentence by ordering that the applicant be eligible for parole on 7 July 2019.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced on his plea of guilty to nine years’ imprisonment for one count of unlawfully doing grievous bodily harm with intent – where the learned sentencing judge fixed the applicant’s parole eligibility date at five years of his term of imprisonment – where, during the sentencing hearing, the learned sentencing judge discussed many alternative sentences but did not indicate a possible outcome where the parole eligibility date would be fixed beyond the half way mark of the term of imprisonment – where the applicant contends that the learned sentencing judge erred because there was no indication that such an order was being considered nor were reasons provided for such an order – whether the learned sentencing judge erred

Corrective Services Act 2006 (Qld), s 184(2)

R v Amery [2011] QCA 383, considered
R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited
R v Honeysett; Ex parte Attorney-General (Qld)[2010] QCA 212, considered
R v Kitson [2008] QCA 86, followed
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
R v Mikaele[2008] QCA 261, considered
R v Mitchell[2006] QCA 240, considered
R v Perussich[2001] QCA 557, considered

COUNSEL:

J M Sharp for the applicant
G J Cummings for the respondent

SOLICITORS:

Gilshenan and Luton for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have read the reasons of Philip McMurdo JA and agree with those reasons and the orders his Honour proposes.
PHILIP McMURDO JA: On 7 July 2015 the applicant was convicted, upon his plea of guilty, of an offence of unlawfully doing grievous bodily harm with intent to do so. He was sentenced to nine years’ imprisonment and his parole eligibility date was set at 7 July 2020, five years into his term. There was no presentence custody.
He applies for leave to appeal against the sentence upon effectively three arguments. The first is that the parole eligibility date should not have been fixed at more than 50 per cent of the term without an indication by the sentencing judge that he was considering…

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 Latemore

Details

AGLC: R v Latemore [2016] QCA 110
Case: [2016] QCA 110
Decision Date: 29 April 2016

CaseChat Overview and Summary

The case of R v Latemore involved an appeal against sentence by the applicant, who had pleaded guilty to one count of unlawfully doing grievous bodily harm with intent. The applicant was sentenced to a term of imprisonment of nine years by the learned sentencing judge, with parole eligibility set at five years into the sentence. The applicant argued that the sentencing judge had erred by not considering an order that would have fixed the parole eligibility date beyond the halfway mark of the term of imprisonment, and by not providing reasons for the chosen parole eligibility date. The central legal issue before the court was whether the sentencing judge had erred in determining the parole eligibility date without proper consideration and reasoning.

The court considered whether the sentencing judge had adequately considered and reasoned the parole eligibility date, particularly in light of the applicant's argument that the decision was not properly considered and justified. The court noted that the sentencing judge had discussed various alternative sentences during the hearing but did not indicate a possible outcome where the parole eligibility date would be fixed beyond the halfway mark of the term of imprisonment. The court found that the sentencing judge had not adequately considered the applicant's argument regarding the parole eligibility date, nor had the judge provided reasons for the chosen date. This was considered an error that warranted interference with the original sentence.

In light of the above, the court granted leave to appeal and allowed the appeal, finding that the sentencing judge had indeed erred in setting the parole eligibility date without proper consideration and reasoning. The court varied the sentence by ordering that the applicant be eligible for parole on 7 July 2019, which is beyond the halfway mark of the term of imprisonment. This decision provided the applicant with a more appropriate parole eligibility date, reflecting the court's consideration of the arguments presented and the need for proper reasoning in sentencing decisions.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the sentence by ordering that the applicant be eligible for parole on 7 July 2019.

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 Latemore [2016] QCA 110
PARTIES:	R v LATEMORE, David John (applicant)
FILE NO/S:	CA No 156 of 2015 DC No 33 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Dalby – Date of Sentence: 7 July 2015
DELIVERED ON:	29 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2016
JUDGES:	Morrison and Philip McMurdo JJA and Boddice J Separate reasons for judgment of each member of the Court, each agreeing as to the orders made
ORDERS:	1. Grant leave to appeal. 2. Allow the appeal. 3. Vary the sentence by ordering that the applicant be eligible for parole on 7 July 2019.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced on his plea of guilty to nine years’ imprisonment for one count of unlawfully doing grievous bodily harm with intent – where the learned sentencing judge fixed the applicant’s parole eligibility date at five years of his term of imprisonment – where, during the sentencing hearing, the learned sentencing judge discussed many alternative sentences but did not indicate a possible outcome where the parole eligibility date would be fixed beyond the half way mark of the term of imprisonment – where the applicant contends that the learned sentencing judge erred because there was no indication that such an order was being considered nor were reasons provided for such an order – whether the learned sentencing judge erred Corrective Services Act 2006 (Qld), s 184(2) R v Amery [2011] QCA 383, considered R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited R v Honeysett; Ex parte Attorney-General (Qld)[2010] QCA 212, considered R v Kitson [2008] QCA 86, followed R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Mikaele[2008] QCA 261, considered R v Mitchell[2006] QCA 240, considered R v Perussich[2001] QCA 557, considered
COUNSEL:	J M Sharp for the applicant G J Cummings for the respondent
SOLICITORS:	Gilshenan and Luton for the applicant Director of Public Prosecutions (Queensland) for the respondent