R v Neivandt

Case [2000] QCA 224


SUPREME COURT OF QUEENSLAND

CITATION: R v Neivandt [2000] QCA 224
PARTIES: R
v
NEIVANDT, Conway William John
(applicant)
FILE NO/S: CA No 414 of 1999
DC No 311 of 1999
DIVISION: Court of Appeal
PROCEEDING: Appeal against conviction and sentence
ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON: 9 June 2000
DELIVERED AT: Brisbane
HEARING DATE: 23 March 2000
JUDGES:

Pincus, McPherson and Thomas JJA

Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER: Appeal against conviction dismissed. Leave to appeal against sentence granted.  Appeal against sentence allowed and sentence of 12 months imprisonment suspended after 36 days with an operational period of two years substituted.
CATCHWORDS:

CRIMINAL LAW – ANCILLARY LIABILITY – STATUTORY PROVISIONS – CODE PROVISIONS

CRIMINAL LAW – ANCILLARY LIABILITY – COMMON PURPOSE – PROOF AND EVIDENCE

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – OTHER CASES

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – GENERALLY

CRIMINAL LAW -  JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUINT - PURPOSE OF SENTENCE – DETERRENCE

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – GENERALLY

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – whether appellant a party to assault which caused bodily harm by virtue of s 7 or s 8 Criminal Code – whether sufficient evidence of common purpose or of aiding assault – whether statement of son when appellant not present was admissible – whether sentence manifestly excessive – whether suitable case for general deterrence – parity with other cases – whether release on bail pending appeal a relevant matter

Criminal Code, s 7 and s 8

Yanner [1999] QCA 515, 10 December 1999, considered
Moore [1999] QCA 172, 14 May 1999, considered

COUNSEL: T Rafter for the applicant
D Bullock for the respondent
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
  1. McPHERSON JA:  I agree with the reasons of Thomas JA for dismissing the appeal against conviction.  I also agree with the order disposing of the application for leave to appeal against sentence, but for the reasons given by Pincus JA with which I agree.

  1. PINCUS JA:  I agree that for the reasons given by Thomas JA the appeal against conviction should be dismissed.

  1. The application for leave to…

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Details
AGLC
R v Neivandt [2000] QCA 224
Case
[2000] QCA 224
Decision Date

CaseChat Overview and Summary

The case of R v Neivandt involved the appellant, who was convicted of being a party to an assault which caused bodily harm. The appeal against the conviction and sentence was heard in the relevant appellate court. The appellant contested both the sufficiency of the evidence to establish his involvement in the assault under sections 7 and 8 of the Criminal Code, as well as the severity of the sentence imposed.

The legal issues before the court encompassed the adequacy of evidence to prove the appellant's ancillary liability through common purpose or aiding the assault, the admissibility of a statement made by the appellant's son in his absence, the proportionality of the sentence, and whether it was suitable for general deterrence. Additionally, the court considered whether the sentence was disproportionate when compared to similar cases and the relevance of the appellant's release on bail pending appeal.

The court found that the evidence, though circumstantial, was sufficient to establish the appellant's involvement in the assault under the statutory provisions. The statement of the appellant's son was deemed admissible under the exceptions to the hearsay rule. However, the court determined that the sentence was manifestly excessive and not suitable for general deterrence. The sentence was also disproportionate when compared to similar cases, and the appellant's release on bail pending appeal was a relevant mitigating factor. Consequently, the appeal against the conviction was dismissed, but leave to appeal against the sentence was granted. The appeal against the sentence was allowed, and the original sentence of 12 months imprisonment, suspended after 36 days with an operational period of two years, was substituted.

The court's final orders were that the appeal against the conviction was dismissed, leave to appeal against the sentence was granted, and the appeal against the sentence was allowed with the substitution of a modified sentence.

Orders

Orders of the court

Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence allowed and sentence of 12 months imprisonment suspended after 36 days with an operational period of two years substituted.

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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