R v Maddox - [2008] QCA 208

SUPREME COURT OF QUEENSLAND

CITATION:

R v Maddox [2008] QCA 208

PARTIES:

R
v
MADDOX, Jesse Gregory
(applicant/appellant)

FILE NO/S:

CA No 82 of 2008
DC No 569 of 2008
DC No 173 of 2008
DC No 2452 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

4 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2008

JUDGES:

Muir JA, Mackenzie AJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal be allowed

2. The sentence imposed on 7 March 2008 be varied, but only by the substitution of 25 September 2009 for 6 November 2009 as the parole eligibility date

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 – GENERALLY – where the applicant pleaded guilty to one count of unlawful assault occasioning bodily harm, one count of dangerous operation of a vehicle and breach of a suspended sentence – where the primary judge ordered that the balance of the five year term of the suspended sentence be served, namely three years and four months – where a sentence of 15 months for the unlawful assault was ordered to be served cumulatively upon the activated suspended sentence – where a sentence of 12 months imprisonment for the dangerous operation of a vehicle offence was ordered to be served concurrently with the balance of the suspended sentence and the term imposed for the unlawful assault – where the applicant had an extensive prior criminal history – where the primary judge set a parole eligibility date approximately six weeks beyond the halfway point of the cumulative periods of imprisonment ordered to be served – whether there was a mistake in fixing the relevant parole eligibility date – whether the sentencing discretion miscarried

R v Hills [2004] QCA 205, cited
R v West [2006] QCA 252, cited
R v Hadland [2000] QCA 182, cited

COUNSEL:

The applicant/appellant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: The applicant seeks leave to appeal against sentences imposed on him in the District Court on 7 March 2008 after pleas of guilty for one count of unlawful assault occasioning bodily harm, one count of dangerous operation of a vehicle, and for breach of a suspended sentence.

On 14 September 2005, the applicant was sentenced in the District Court to 12 months imprisonment on counts of grievous bodily harm and assaults occasioning bodily harm and to five years imprisonment, suspended after 20 months, with an operational period of five years, for another count of grievous bodily harm.

The offences first referred to were committed during the operational period…

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 Maddox

Details

AGLC: R v Maddox [2008] QCA 208
Case: [2008] QCA 208
Decision Date: 4 August 2008

CaseChat Overview and Summary

The case of R v Maddox involved an appeal against sentence by the applicant who had pleaded guilty to one count of unlawful assault occasioning bodily harm, one count of dangerous operation of a vehicle, and breach of a suspended sentence. The applicant was sentenced by the primary judge to serve a term of three years and four months on the activated suspended sentence, a sentence of 15 months for the unlawful assault to be served cumulatively upon the activated suspended sentence, and a sentence of 12 months imprisonment for the dangerous operation of a vehicle offence to be served concurrently with the other terms. The applicant had a significant prior criminal history. The primary judge set a parole eligibility date approximately six weeks beyond the halfway point of the cumulative periods of imprisonment ordered to be served. The applicant argued that there was a mistake in fixing the relevant parole eligibility date and that the sentencing discretion miscarried.

The legal issues before the court were whether there was a mistake in fixing the parole eligibility date and whether the sentencing discretion miscarried. The applicant contended that the date set by the primary judge was incorrect and that the sentencing discretion was misapplied. The court had to determine if the primary judge's setting of the parole eligibility date constituted a mistake and if there was an error in the exercise of the sentencing discretion.

The court found that the primary judge had indeed made a mistake in fixing the parole eligibility date, as it was approximately six weeks beyond the halfway point of the cumulative periods of imprisonment. The court determined that this error warranted correction. However, the court held that the overall sentence was not so manifestly excessive or inadequate as to constitute a miscarriage of the sentencing discretion. The court varied the sentence by substituting the correct parole eligibility date, 25 September 2009, for the incorrect date, 6 November 2009.

The final orders of the court were that the application for leave to appeal be allowed, and the sentence imposed on 7 March 2008 be varied by substituting 25 September 2009 for 6 November 2009 as the parole eligibility date. This ensured that the primary judge's error was rectified while maintaining the overall sentence's integrity.

Orders

Orders of the court

1. Application for leave to appeal be allowed

2. The sentence imposed on 7 March 2008 be varied, but only by the substitution of 25 September 2009 for 6 November 2009 as the parole eligibility date

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 Maddox [2008] QCA 208
PARTIES:	R v MADDOX, Jesse Gregory (applicant/appellant)
FILE NO/S:	CA No 82 of 2008 DC No 569 of 2008 DC No 173 of 2008 DC No 2452 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	4 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	4 August 2008
JUDGES:	Muir JA, Mackenzie AJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal be allowed 2. The sentence imposed on 7 March 2008 be varied, but only by the substitution of 25 September 2009 for 6 November 2009 as the parole eligibility date
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 – GENERALLY – where the applicant pleaded guilty to one count of unlawful assault occasioning bodily harm, one count of dangerous operation of a vehicle and breach of a suspended sentence – where the primary judge ordered that the balance of the five year term of the suspended sentence be served, namely three years and four months – where a sentence of 15 months for the unlawful assault was ordered to be served cumulatively upon the activated suspended sentence – where a sentence of 12 months imprisonment for the dangerous operation of a vehicle offence was ordered to be served concurrently with the balance of the suspended sentence and the term imposed for the unlawful assault – where the applicant had an extensive prior criminal history – where the primary judge set a parole eligibility date approximately six weeks beyond the halfway point of the cumulative periods of imprisonment ordered to be served – whether there was a mistake in fixing the relevant parole eligibility date – whether the sentencing discretion miscarried R v Hills [2004] QCA 205, cited R v West [2006] QCA 252, cited R v Hadland [2000] QCA 182, cited
COUNSEL:	The applicant/appellant appeared on his own behalf G P Cash for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent