R v. Lude; R v Love

Case [2007] QCA 319

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lude; R v Love [2007] QCA 319

PARTIES:

R
v
LUDE, Joel Steven
(applicant/appellant)

R
v
LOVE, Dale Sydney
(applicant/appellant)

FILE NO/S:

CA No 211 of 2007
CA No 217 of 2007
DC No 326 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

2 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2007

JUDGES:

Keane and Holmes JJA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. In CA No 211 of 2007: Application for leave to appeal against sentence allowed; set aside the sentence imposed at first instance and substitute a sentence of nine months imprisonment with a parole release date fixed at 2 October 2007

2. In CA No 217 of 2007: Application for leave to appeal against sentence allowed; set aside the sentence imposed at first instance and substitute a sentence of nine months imprisonment with a parole release date fixed at 8 November 2007

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 applicants were jointly charged with, and pleaded guilty to, one count of assault occasioning bodily harm in company – where each was sentenced to 18 months imprisonment with a parole release date fixed after six months – whether excessive weight was placed on deterrence – whether insufficient recognition was given to mitigating circumstances and the prospect of rehabilitation of both applicants – whether the sentences imposed were manifestly excessive

R v Abednego [2004] QCA 377; CA No 248 of 2004, 12 October 2004, considered
R v Lam[2006] QCA 560; CA No 308 of 2006, 22 December 2006, considered
R v Middleton and Johns [2006] QCA 92; CA No 58 of 2006, 31 March 2006, considered
R v O’Grady; ex parte A-G (Qld) [2003] QCA 137; CA No 35 of 2003, 28 March 2003, considered

COUNSEL:

B Farr for the applicant Lude
A W Moynihan SC for the applicant Love
M R Byrne for the respondent

SOLICITORS:

Noel Woodall & Associates for the applicant Lude
Legal Aid Queensland for the applicant Love
Director of Public Prosecutions (Queensland) for the respondent

  1. KEANE JA:  I have had the advantage of reading the reasons of Holmes JA. I agree with her Honour’s reasons and with the orders proposed by her Honour.

  1. HOLMES JA: The applicants were jointly charged with, and pleaded guilty to, one count of assault occasioning bodily harm in company. Each was sentenced on 8 August 2007 to 18 months imprisonment with a parole release date fixed after six months, and each seeks leave to appeal against that sentence.

  1. A schedule of agreed facts was put before the sentencing court.  From…

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Details
AGLC
R v Lude; R v Love [2007] QCA 319
Case
[2007] QCA 319
Decision Date

CaseChat Overview and Summary

The appellants, Lude and Love, were jointly charged with assault occasioning bodily harm in company, to which they pleaded guilty. Both were sentenced to 18 months imprisonment, with parole eligibility set six months into their sentences. They now seek to appeal the sentences imposed, arguing that the court placed excessive weight on deterrence, failed to sufficiently consider mitigating circumstances, and underestimated the likelihood of their rehabilitation. The primary issue before the court was whether the original sentences were manifestly excessive and whether the applicants' arguments warranted a reduction.

In assessing the appeal, the court examined the severity of the offence and the role each appellant played. It considered the necessity of deterrence, the need to protect society, and the prospects of rehabilitation. The court found that the sentences imposed did not adequately balance these factors, particularly in light of the mitigating factors presented by the applicants. The court determined that the original sentences did not sufficiently recognise the potential for rehabilitation and had not properly weighed the mitigating factors against the need for deterrence.

Accordingly, the court allowed the applications for leave to appeal against sentence. It set aside the original sentences of 18 months imprisonment and substituted sentences of nine months imprisonment, with parole eligibility set at specific dates. The court's decision reflects a careful consideration of the appropriate balance between deterrence and the potential for rehabilitation, ensuring that the sentences reflect the unique circumstances of each appellant.

Orders

Orders of the court

1. In CA No 211 of 2007: Application for leave to appeal against sentence allowed; set aside the sentence imposed at first instance and substitute a sentence of nine months imprisonment with a parole release date fixed at 2 October 2007

2. In CA No 217 of 2007: Application for leave to appeal against sentence allowed; set aside the sentence imposed at first instance and substitute a sentence of nine months imprisonment with a parole release date fixed at 8 November 2007

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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