R v Mitchell - [2010] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mitchell [2010] QCA 20

PARTIES:

R
v
MITCHELL, Wendy Ellen
(applicant)

FILE NO/S:

CA No 256 of 2009
DC No 1317 of 2009
DC No 2185 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2010

JUDGES:

McMurdo P, Muir and Fraser JJA
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal allowed;

2. Appeal allowed to the extent only that a sentence of two years be substituted for the sentence of 30 months imposed at first instance.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant convicted of two counts of unlawful assault (counts 1 and 2) and one count of serious assault (count 3) – where applicant sentenced to nine months imprisonment for counts 1 and 2 and 30 months imprisonment for count 3 – where the sentences were to be served concurrently – where the complainant in count 3 was an elderly woman – where the applicant was on probation at the time of the offences – where the applicant had an extensive criminal history – where the applicant was an alcoholic – where the applicant lived on the street and suffered from depression – whether sentence for serious assault (count 3) manifestly excessive

Criminal Code 1899 (Qld), s 335, s 340(1)(g)
Summary Offences Act 2005 (Qld), s 16A, s 19AL, s 19AM

R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 080, cited
R v Elliott [2000] QCA 267, cited
R v Greczko [2001] QCA 221, discussed
R v Johnson [2002] QCA 283, cited
R v Jones [2003] QCA 474, discussed
R v King [2006] QCA 466, considered
R v Mathieson [2001] QCA 45, discussed
R v Mayall [2008] QCA 202, cited
R v Roach [2009] QCA 360, discussed

COUNSEL:

M J Power for the applicant
M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with Muir JA's reasons for granting the application for leave to appeal against sentence and allowing the appeal, only to the extent that a sentence of two years is substituted for the sentence of 30 months imposed at first instance.

MUIR JA: The applicant pleaded guilty to unlawfully assaulting a 10 year old girl on 28 August 2008 in Townsville (count 1); unlawfully assaulting a 14 year old boy in Townsville on 28 August 2008 (count 2); and to the serious assault of a woman over the age of 60 years in Brisbane on 15 January 2009 (count 3). She was sentenced on 16 September 2009 to nine months imprisonment with a parole release date of 22 September 2009 for each of counts 1 and…

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 Mitchell

Details

AGLC: R v Mitchell [2010] QCA 20
Case: [2010] QCA 20
Decision Date: 19 February 2010

CaseChat Overview and Summary

The applicant appealed against the sentence imposed on him for two counts of unlawful assault and one count of serious assault. The sentencing judge imposed a sentence of nine months imprisonment for counts 1 and 2 and 30 months imprisonment for count 3, to be served concurrently. The applicant argued that the sentence for the serious assault was manifestly excessive. The legal issues before the court were whether the sentence was manifestly excessive and whether there were any grounds for interference. The court examined the circumstances of the case, including the applicant's criminal history, his living conditions, and his alcoholism and depression. The court also considered the impact of the serious assault on the elderly complainant. The court found that the sentence for the serious assault was manifestly excessive and that there were grounds for interference. The court substituted a sentence of two years for the sentence of 30 months imposed at first instance. The applicant's application for leave to appeal was allowed, and the appeal was allowed to the extent only that a sentence of two years be substituted for the sentence of 30 months imposed at first instance.

Orders

Orders of the court

1. Application for leave to appeal allowed;

2. Appeal allowed to the extent only that a sentence of two years be substituted for the sentence of 30 months imposed at first instance.

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 Mitchell [2010] QCA 20
PARTIES:	R v MITCHELL, Wendy Ellen (applicant)
FILE NO/S:	CA No 256 of 2009 DC No 1317 of 2009 DC No 2185 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2010
JUDGES:	McMurdo P, Muir and Fraser JJA Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal allowed; 2. Appeal allowed to the extent only that a sentence of two years be substituted for the sentence of 30 months imposed at first instance.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where applicant convicted of two counts of unlawful assault (counts 1 and 2) and one count of serious assault (count 3) – where applicant sentenced to nine months imprisonment for counts 1 and 2 and 30 months imprisonment for count 3 – where the sentences were to be served concurrently – where the complainant in count 3 was an elderly woman – where the applicant was on probation at the time of the offences – where the applicant had an extensive criminal history – where the applicant was an alcoholic – where the applicant lived on the street and suffered from depression – whether sentence for serious assault (count 3) manifestly excessive Criminal Code 1899 (Qld), s 335, s 340(1)(g) Summary Offences Act 2005 (Qld), s 16A, s 19AL, s 19AM R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 080, cited R v Elliott [2000] QCA 267, cited R v Greczko [2001] QCA 221, discussed R v Johnson [2002] QCA 283, cited R v Jones [2003] QCA 474, discussed R v King [2006] QCA 466, considered R v Mathieson [2001] QCA 45, discussed R v Mayall [2008] QCA 202, cited R v Roach [2009] QCA 360, discussed
COUNSEL:	M J Power for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent