R v Leapai - [2005] QCA 449

SUPREME COURT OF QUEENSLAND

CITATION:

R v Leapai [2005] QCA 449

PARTIES:

R
v
LEAPAI, Elise Leemaken
(applicant)

FILE NO/S:

CA No 273 of 2005
DC No 411 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

5 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2005

JUDGES:

McMurdo P, White and Chesterman JJ

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

ORDER:

Application 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 - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON – where conviction for grievous bodily harm – where sentence within range – where a number of mitigating factors including no previous convictions, a high degree of rehabilitation and community involvement – whether in exercising the discretion the learned judge erred in not giving sufficient weight to the mitigating factors

Criminal Code Act 1899 (Qld), s 320

R v D’Arcy [2001] QCA 325; (2001) 122 A Crim R 268, cited
R v O’Grady; ex parte A-G (Qld) [2003] QCA 137; (2003) 138 A Crim R 273, distinguished
R v Tupou; ex parte A-G (Qld) [2005] QCA 179; CA No 88 of 2005, 31 May 2005, cited

COUNSEL:

A W Moynihan for the applicant
R G Martin SC for the respondent

SOLICITORS:

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

WHITE J: The applicant for leave to appeal against sentence pleaded guilty in the District Court at Beenleigh on the 7th of October 2005 to one count of doing grievous bodily harm at Rogue's Nightclub at Underwood on the 14th of September 2002. He was jointly charged with another but it appears that that person is yet to be dealt with.

The applicant was sentenced on the 10th of October 2005 to two years imprisonment to be suspended after six months, with an operational period of three years. The applicant contends that in light of his age, no previous criminal convictions and a very high degree of rehabilitation in the intervening period between offending and sentence, the learned sentencing Judge ought to have wholly suspended the operation of the sentence. In other words, the submission is that his Honour's sentencing discretion miscarried in that he failed to give sufficient weight to the mitigating factors. There is no argument by Mr Moynihan, who appeared on behalf of the applicant, that the head sentence of two years was not within range.

The applicant was born on the 16th of October 1979 and was aged 22 when the offence was committed and almost 26 when he was sentenced. The delay has not been satisfactorily explained. Counsel before us have had no more information than was given below but in broad terms it seems that police renewed their investigations…

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 Leapai

Details

AGLC: R v Leapai [2005] QCA 449
Case: [2005] QCA 449
Decision Date: 5 December 2005

CaseChat Overview and Summary

In the case of R v Leapai, the applicant appealed against his sentence following his conviction for grievous bodily harm. The appeal was heard in the Supreme Court of Queensland. The applicant sought to have his sentence reduced, arguing that the learned trial judge did not adequately consider the mitigating factors in arriving at the sentence imposed. These mitigating factors included the applicant's lack of previous convictions, his high degree of rehabilitation, and his involvement in the community.

The legal issues before the court were whether the trial judge exercised his discretion properly and whether the mitigating factors presented were sufficient to warrant a reduced sentence. The court had to examine the principles and factors relevant to the sentencing of grievous bodily harm, and assess whether the trial judge erred in not giving sufficient weight to the mitigating factors.

The court held that the sentence was within the range of sentences that could be imposed for the offence of grievous bodily harm. It was noted that while there were mitigating factors, they did not warrant a sentence below the range. The court found that the trial judge had given due consideration to the mitigating factors, and did not err in the exercise of discretion in imposing the sentence. The court emphasised that while the mitigating factors were relevant, they were not sufficient to warrant a reduction in sentence.

Accordingly, the application for a reduced sentence was refused. The court upheld the original sentence imposed by the trial judge, finding that it was appropriate and within the range for the offence committed.

Orders

Orders of the court

Application 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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CITATION:	R v Leapai [2005] QCA 449
PARTIES:	R v LEAPAI, Elise Leemaken (applicant)
FILE NO/S:	CA No 273 of 2005 DC No 411 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	5 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	5 December 2005
JUDGES:	McMurdo P, White and Chesterman JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application 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 - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON – where conviction for grievous bodily harm – where sentence within range – where a number of mitigating factors including no previous convictions, a high degree of rehabilitation and community involvement – whether in exercising the discretion the learned judge erred in not giving sufficient weight to the mitigating factors Criminal Code Act 1899 (Qld), s 320 R v D’Arcy [2001] QCA 325; (2001) 122 A Crim R 268, cited R v O’Grady; ex parte A-G (Qld) [2003] QCA 137; (2003) 138 A Crim R 273, distinguished R v Tupou; ex parte A-G (Qld) [2005] QCA 179; CA No 88 of 2005, 31 May 2005, cited
COUNSEL:	A W Moynihan for the applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent