R v MDS - [2023] QCA 228

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDS [2023] QCA 228

PARTIES:

R
v
MDS
(applicant)

FILE NO/S:

CA No 113 of 2023
DC No 645 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 3 April 2023 (Fantin DCJ)

DELIVERED ON:

21 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2023

JUDGES:

Morrison and Dalton and Boddice JJA

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and complainant had been in a long-term de facto relationship – where the applicant and complainant separated but remained in contact – where the applicant was found guilty of four counts of wilful damage, two counts of common assault, one count of assault occasioning bodily harm and one count of strangulation in a domestic setting – where the applicant was sentenced to 12 months imprisonment for each count of wilful damage, 18 months imprisonment for each count of common assault, 2 years imprisonment for the count of assault occasioning bodily harm and 3 years imprisonment for the count of strangulation in a domestic setting – where all sentences were ordered to be served concurrently – where the trial judge inflated the head sentence to reflect the criminality of a series of domestic violence offences – where there was a parole release date fixed after the applicant had served one-quarter of the head sentence to reflect mitigating factors – where the applicant was ordered to pay the complainant compensation – whether the sentence was manifestly excessive in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the sentencing judge emphasised the seriousness of the criminality of strangulation in sentencing remarks by noting that strangulation is potentially associated with lethality – whether the sentencing judge made a specific error

Attorney‑General for State of Qld v Samuels[2021] QCA 107, cited
R v HBZ (2020) 4 QR 171; [2020] QCA 73, cited
R v MCW [2019] 2 Qd R 344; [2018] QCA 241, cited
R v MDB[2018] QCA 283, cited
R v Tout[2012] QCA 296, cited

COUNSEL:

M L Longhurst for the applicant
M J Wilson for the respondent

SOLICITORS:

Mellick Smith & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have had the advantage of reading the reasons of Dalton JA. I agree with those reasons and the order her Honour proposes.
DALTON JA: This is an application for leave to appeal against sentence. The proposed appeal would assert that the sentence below was manifestly excessive and that the judge made a specific error in sentencing. I would dismiss the application because I cannot see merit in either proposed ground.
The Facts of the Offending
The applicant was 49 years old at the time of…

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 MDS

Details

AGLC: R v MDS [2023] QCA 228
Case: [2023] QCA 228
Decision Date: 21 November 2023

CaseChat Overview and Summary

The appellant was convicted of a series of offences against the complainant, who had been in a long-term relationship with the appellant. The offences included wilful damage, common assault, assault occasioning bodily harm and strangulation in a domestic setting. The appellant was sentenced to various terms of imprisonment, to be served concurrently, and was also ordered to pay compensation to the complainant. The appellant appealed against the sentence, submitting that it was manifestly excessive.

The primary legal issue before the court was whether the sentence was manifestly excessive. The appellant argued that the sentence was disproportionate to the offending and that it failed to adequately reflect mitigating factors. The court considered the totality of the offending, the principles of sentencing and the need to ensure that the sentence reflected the seriousness of the offending. The court also considered whether the sentencing judge had made a specific error in his remarks.

The court found that the sentence was not manifestly excessive. The court noted that the appellant's offending was serious and involved a degree of escalation. The court found that the sentence reflected the seriousness of the offending and appropriately took into account mitigating factors. The court found that the sentencing judge had not made a specific error in his remarks. The application for leave to appeal was dismissed.

No further orders were made.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v MDS [2023] QCA 228
PARTIES:	R v MDS (applicant)
FILE NO/S:	CA No 113 of 2023 DC No 645 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 3 April 2023 (Fantin DCJ)
DELIVERED ON:	21 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	14 November 2023
JUDGES:	Morrison and Dalton and Boddice JJA
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and complainant had been in a long-term de facto relationship – where the applicant and complainant separated but remained in contact – where the applicant was found guilty of four counts of wilful damage, two counts of common assault, one count of assault occasioning bodily harm and one count of strangulation in a domestic setting – where the applicant was sentenced to 12 months imprisonment for each count of wilful damage, 18 months imprisonment for each count of common assault, 2 years imprisonment for the count of assault occasioning bodily harm and 3 years imprisonment for the count of strangulation in a domestic setting – where all sentences were ordered to be served concurrently – where the trial judge inflated the head sentence to reflect the criminality of a series of domestic violence offences – where there was a parole release date fixed after the applicant had served one-quarter of the head sentence to reflect mitigating factors – where the applicant was ordered to pay the complainant compensation – whether the sentence was manifestly excessive in all the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the sentencing judge emphasised the seriousness of the criminality of strangulation in sentencing remarks by noting that strangulation is potentially associated with lethality – whether the sentencing judge made a specific error Attorney‑General for State of Qld v Samuels[2021] QCA 107, cited R v HBZ (2020) 4 QR 171; [2020] QCA 73, cited R v MCW [2019] 2 Qd R 344; [2018] QCA 241, cited R v MDB[2018] QCA 283, cited R v Tout[2012] QCA 296, cited
COUNSEL:	M L Longhurst for the applicant M J Wilson for the respondent
SOLICITORS:	Mellick Smith & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent