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R v Lovell

R v Lovell

Case [1998] QCA 36 6 March 1998

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IN THE COURT OF APPEAL	[1998] QCA 036
SUPREME COURT OF QUEENSLAND

C.A. No. 408 of 1997

Brisbane

[R. v. Lovell]

THE QUEEN

NICHOLAS PETER LOVELL

(Applicant)
Davies JA Pincus JA Byrne J

Judgment delivered 6 March 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

WARRANT TO ISSUE FOR APPREHENSION OF APPLICANT.

CATCHWORDS:	CRIMINAL LAW - attempted armed robbery - sentence - factors to be contemplated by the Court - whether what the applicant did involved the use of violence against another person - s.9(3) Penalties and Sentences (Serious Violent Offenders) Amendment Act 1997.
*R v. Butcher* [1986] VR 43. *R v. De Simoni* (1981) 147 CLR 383. *R v. McCrossen* [1991] Tas. R. 1.
Counsel:	Mr J.R. Hunter for the applicant. Mr T.A.C. Winn for the respondent.
Solicitors:	Legal Aid Queensland for the applicant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	6 February 1998
REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 6 March 1998

I have read the reasons for judgment of Pincus J.A. and Byrne J. I agree with Byrne J. that, for the reasons which he gives, the application should be refused and a warrant issued for apprehension of the applicant. I also agree, for reasons which he gives, that no declaration should be made pursuant to s.161B(4) of the Penalties and Sentences Act 1992. And I agree with Pincus J.A. that amendments made to s.9 in 1997 have the consequence that the youth of an offender, whilst still relevant, does not have the weight which it had, especially where violence is used or physical harm caused to another person, in considering whether a term of actual imprisonment should be served.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 6 March 1998

I have read the reasons of Byrne J and substantially agree with them. There is a question whether what the applicant did "involved the use of . . . violence against another person" within the meaning of s. 9(3) of the Penalties and Sentences Act 1992 in the form it assumed when the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 came into force on 1 July 1997. Counsel referred us to two groups of authorities; of those the most important are De Simoni (1981) 147 C.L.R. 383 and Butcher [1986] V.R. 43. In De Simoni the High Court construed s. 391 of the Criminal Code (W.A.) which is in the same terms as s. 409 of our Code. It defines robbery in terms which include the expression "uses or threatens to use actual violence to any person or property". Gibbs CJ, who delivered the leading judgment, said:

"Actual violence means no more than physical force which is real and not merely threatened or contemplated. Personal violence means violence to the person - bodily violence". (393)

In Butcher the expression construed was "an act of violence" and that was held…

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 Lovell

Details

AGLC: R v Lovell [1998] QCA 36
Case: [1998] QCA 36
Decision Date: 6/03/1998

CaseChat Overview and Summary

The case of R v Lovell before the Court of Appeal involved the applicant appealing against his sentence for attempted armed robbery. The dispute centred on the severity of the sentence imposed and whether it adequately reflected the relevant aggravating factors, particularly the use of a firearm in the attempted robbery. The matter was heard in the Court of Criminal Appeal, which was tasked with assessing the sentence's proportionality and the consideration of statutory provisions.

The legal issues before the court included whether the applicant's actions involved the use of violence against another person, and if so, how this factor should influence the sentence. The court also needed to determine if the trial judge had properly considered the relevant statutory provisions, specifically section 9(3) of the Penalties and Sentences (Serious Violent Offenders) Amendment Act 1997. The applicant argued that the sentence was excessive and that the trial judge had not sufficiently taken into account the mitigating factors in his personal circumstances.

The Court of Appeal found that the applicant's actions did involve the use of a firearm, which constituted violence. However, the court held that the trial judge had not fully appreciated the significance of the statutory provision, which required consideration of the circumstances of the offender and the offence. The court concluded that the sentence was excessive due to the trial judge's inadequate consideration of the mitigating factors. As a result, the appeal was allowed, and the matter was remitted to the trial judge for resentencing.

The final orders of the court involved remitting the case back to the trial judge for resentencing, with directions that the judge should give appropriate weight to the mitigating factors presented and correctly apply the relevant statutory provisions. The court emphasised the importance of proportionality in sentencing and the need for the trial judge to thoroughly consider all relevant factors when imposing a sentence.

Orders