R v. Montone - [2009] QCA 234

SUPREME COURT OF QUEENSLAND

CITATION:

R v Montone [2009] QCA 234

PARTIES:

R
v
MONTONE, Braccio
(applicant)

FILE NO/S:

CA No 107 of 2009
DC No 20 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMPORE ON:

14 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2009

JUDGES:

Holmes JA, Mullins and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where applicant pleaded guilty to three counts of armed robbery in company with personal violence – where applicant sentenced to three years imprisonment, with parole release date fixed after 12 months – where on appeal applicant accepted sentence within range, but contended for earlier parole release date – where applicant sought to deny facts in agreed schedule on which he was sentenced – where applicant’s submissions centred around his difficulties in prison and hardship to his family – whether sentence manifestly excessive

R v Wockner & Hodges[2007] QCA 392, cited

COUNSEL:

The applicant appeared on his own behalf
P F Rutledge for the respondent

SOLICITORS:

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

HOLMES JA: The applicant seeks leave to appeal against a sentence of three years imprisonment, with a parole release date fixed at 14 April 2010 (after 12 months in actual custody), imposed on him for three offences of armed robbery in company with personal violence. He appears for himself. He says frankly in his written submissions that he cannot point to any particular error in the learned Judge's exercise of sentencing discretion or say that the head sentence is not correct. However, he contends that he should receive an earlier parole release date.

All of the offences were committed in the early hours of the morning on 6 April 2008. According to an agreed schedule of facts, the applicant, who was then aged 25 years, was in company with two other men of similar age, Darryl Headley and James Preston. They set upon two young men walking along a main road at Mooloolaba. Both were forced to their knees, Headley holding a knife to the throat of one, and the applicant similarly pointing a knife at the chest of the other, then holding it against the side of the man's neck. Preston, who was also armed with a knife, joined with them in demanding the victims' possessions. According to the schedule of facts, after forcing the man he was holding at knife point to turn out his pockets, yielding nothing but a mobile phone and a packet of gum, the applicant spat in his victim's face and kicked the mobile phone out of the man's hand. The applicant and his friends walked away and got…

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. Montone

Details

AGLC: R v Montone [2009] QCA 234
Case: [2009] QCA 234
Decision Date: 14 August 2009

CaseChat Overview and Summary

The case of R v. Montone involved the applicant appealing against his sentence for three counts of armed robbery with personal violence. The applicant had pleaded guilty and was sentenced to three years imprisonment, with parole eligibility set after 12 months. He accepted the sentence was within the range, but sought an earlier parole release date. The applicant also attempted to deny the facts in the agreed schedule on which he was sentenced, focusing on his difficulties in prison and the hardship to his family.

The court was required to determine whether the sentence was manifestly excessive and if there were grounds for interference. The applicant argued that the sentence had a severe impact on him and his family, which should warrant an earlier parole release date. The court needed to consider whether these factors constituted sufficient grounds to interfere with the sentence.

The court found that the sentence was not manifestly excessive and there were no grounds for interference. The applicant's arguments centred on his personal difficulties and the hardship to his family, which did not constitute sufficient grounds to warrant altering the sentence. The court upheld the original sentencing, which included the parole release date fixed after 12 months. As a result, the application for leave to appeal was dismissed.

Orders

Orders of the court

Application for leave to appeal dismissed

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 Montone [2009] QCA 234
PARTIES:	R v MONTONE, Braccio (applicant)
FILE NO/S:	CA No 107 of 2009 DC No 20 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED EX TEMPORE ON:	14 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	14 August 2009
JUDGES:	Holmes JA, Mullins and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where applicant pleaded guilty to three counts of armed robbery in company with personal violence – where applicant sentenced to three years imprisonment, with parole release date fixed after 12 months – where on appeal applicant accepted sentence within range, but contended for earlier parole release date – where applicant sought to deny facts in agreed schedule on which he was sentenced – where applicant’s submissions centred around his difficulties in prison and hardship to his family – whether sentence manifestly excessive R v Wockner & Hodges[2007] QCA 392, cited
COUNSEL:	The applicant appeared on his own behalf P F Rutledge for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent