R v Lidbetter

[2009] QCA 6

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lidbetter [2009] QCA 6

PARTIES:

R
v
LIDBETTER, Jason Mark
(applicant)

FILE NO/S:

CA No 304 of 2008
DC No 1045 of 2008
DC No 2838 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

10 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2009

JUDGES:

de Jersey CJ, Fraser JA and P Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application and appeal against sentence allowed.

2.   Sentence imposed in the District Court on 31 October 2008 set aside, and in lieu thereof, order that the applicant be imprisoned for 12 months, setting as the parole release date, the date which will mark the applicant’s having served 4 months of that term.

3.   A warrant issue for the arrest of the applicant to lie in the Registry for 7 days pending execution.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to offences of going armed in public so as to cause fear, deprivation of liberty, common assault and wilful exposure – where the applicant was initially sentenced to 18 months imprisonment with a parole release date after 6 months – where the applicant suffered a heart attack prior to sentencing – where the applicant had relevant and extensive criminal history – whether the learned trial judge erred in selecting 2 years as the starting point for sentencing before taking into account mitigating factors

R v Hayes[2008] QCA 236, applied

COUNSEL:

C Heaton for the applicant
G Cummings for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE:  The applicant pleaded guilty to a number of offences committed on 4 March 2007.  They formed part of the same incident and they were going armed in public so as to cause fear, deprivation of liberty, common assault and wilful exposure.  He was sentenced to 18 months' imprisonment with a parole release date after six months.  He served seven weeks and three days prior to his being released on bail pending appeal.  He seeks leave to appeal against the sentence.

His counsel, Mr Heaton, has submitted that a term of imprisonment of the order of six months, suspended after the time he has already spent in custody should have been imposed.

The offences were committed in these circumstances.  The applicant flagged down a passing motorist and accused him of having done burn outs the night before.  The applicant produced a knife, which he held to the complainant's neck while yelling at the complainant about the burn outs.  The applicant was obviously intoxicated and bleeding from the mouth.  The complainant was a complete stranger to the applicant and the complainant had not, in fact, been responsible for the conduct…