R v Middleton and Johns

Case [2006] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION:

R v Middleton and Johns [2006] QCA 92

PARTIES:

R
v
MIDDLETON, James
(first applicant/appellant)

R
v
JOHNS, Martin Geoffrey
(second applicant/appellant)

FILE NO/S:

CA No 58 of 2006
CA No 59 of 2006
DC No 3559 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2006

JUDGES:

Williams JA, Jerrard JA and  Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal allowed
2. Vary sentence imposed on First Applicant by admitting          
    him to probation from 31 March 2006
3. Vary sentence imposed on Second Applicant by   
    admitting him to probation from 31 March 2006

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 – whether the sentences were manifestly excessive – pleaded guilty to unlawful assault occasioning bodily harm when in company and when armed with a dangerous instrument –  need for deterrence – three assailants sprayed complainant in face with “mace-like” substance before elbowing, kicking and punching the complainant in the face – offence occurred at night at the complainant’s residence – no factual finding by trial judge as to possible motives for attack – mitigating factors included guilty plea, youth, insignificant criminal history, reasonable work records, low probability of re-offending and one defendant suffered physical injury as a result of his misconduct – bail should not affect outcome of sentence application – since Crown did not plead that assailants entered the premises and carried out the assault for the purpose of recovering marijuana that the complainant was wrongfully withholding and the trial judge made no clear finding of fact on this point it is not appropriate to sentence on a more serious finding of fact

Penalties and Sentences Act 1992 (Qld), s 9(3)

R v Abednego [2004] QCA 377; CA No 248 of 2004, 12 October 2004, considered
R v Dempsey and Perks; ex parte Attorney-General (Qld) [1999] QCA 520; CA Nos 328 of 1999 and 329 of 1999, 17 December 1999, considered
R v George Bennett & Lindsey Bennett [1998] QCA 393; CA Nos 443 and 449 of 1998, 24 November 1998, considered
R v Haughton [1997] QCA 281; CA No 219 of 1997, 8 August 1997, considered
R v Hsu & Hsu [1998] QCA 257; CA Nos 199 and 200 of 1998, 7 August 1998, considered
R v Irving [2004] QCA 305; CA No 246 of 2004, 20 August 2004
R v Nievandt [2000] QCA 224; CA No 414 of 1999, 9 June 2000, considered
R v Ryan; ex parte Attorney-General (Qld) [2000] QCA 401; CA No 187 of 2000, 28 September 2000, considered

R v Sargent, Price…

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AGLC
R v Middleton and Johns [2006] QCA 92
Case
[2006] QCA 92
Decision Date

CaseChat Overview and Summary

The appellants, Middleton and Johns, were convicted of unlawful assault occasioning bodily harm while in company and armed with a dangerous instrument. They appealed against the severity of their sentences, which were imposed after they pleaded guilty to the charge. The appeal centred on whether the sentences were manifestly excessive, considering various mitigating factors. The respondents, represented by the Crown, argued that the nature of the offence warranted a harsh penalty due to the brutality and premeditation involved. The appellants contended that their sentences were unduly harsh given their mitigating circumstances, including their guilty pleas, youth, minimal criminal history, stable employment, and the low likelihood of reoffending.

The court had to determine whether the sentences were manifestly excessive in light of the appellants' mitigating factors. The assault involved the appellants, in a group of three, attacking the complainant at night at their residence, spraying a "mace-like" substance in their face, and then physically assaulting them. The court considered the need for general and specific deterrence in sentencing but also weighed the appellants' mitigating factors, which included their guilty pleas, their youth, an insignificant criminal history, stable employment, and the low risk of reoffending. Notably, one appellant had suffered a physical injury as a result of his own misconduct.

In its judgment, the court concluded that the sentences were manifestly excessive. The trial judge had not made a factual finding regarding the possible motives for the attack, and the Crown had not argued that the assault was motivated by the recovery of marijuana wrongfully withheld by the complainant. Therefore, the court was not justified in sentencing on the basis of a more serious factual finding. The appeal was allowed, and the sentences were varied to admit the appellants to probation from 31 March 2006.

Orders

Orders of the court

1. Appeal allowed

2. Vary sentence imposed on First Applicant by admitting

him to probation from 31 March 2006

3. Vary sentence imposed on Second Applicant by

admitting him to probation from 31 March 2006

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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