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R v Neivandt

R v Neivandt

Case [2000] QCA 224 9 June 2000

Aggravated & Exemplary Damages

Criminal Law

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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

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.

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

The application for leave to…

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 Neivandt

Details

AGLC: R v Neivandt [2000] QCA 224
Case: [2000] QCA 224
Decision Date: 9 June 2000

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

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

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Citations

AGLC Citation

R v Neivandt [2000] QCA 224

Most Recent Citation

R v Jones & Bradshaw [2003] QCA 230

Cases citing this decision · 12 of 12 shown

Solomon v Queensland Police Service
[2019] QDC 224 Para 1

…The parties referred me to several cases of: R v Kelley [2018] QCA 18; R v Taylor [2000] QCA 311; Quatermass v Police [2015] QDC 169; R v Neivandt [2000] QCA 224; R v Middleton and Johns [2006] QCA 92; R v Lude; R v Love [2007] QCA 319; and La Carta v Commissioner of Police [2016] QDC 68. After considering each c…
R v MCY
[2018] QCA 275 Para 1

…in “marginal cases” a residual discretion to refuse to have an applicant returned to prison for a “trivial period”.[14] [14]See R v Neivandt [2000] QCA 224 as applied by Keane JA in R v Denyer [2009] QCA 53 at [29]; R v Ellison [2000] QCA 125 per Jerrard JA at [43].…
Ross v The Commissioner of Police
[2016] QDC 205 Para 1

…ison for a short period bearing in mind he had been on appeal bail.[22] [22]Ibid. at [25] and [41] adopting the approach by Thomas JA in R v Nievandt [2000] QCA 224.…
R v Liang
[2014] QCA 87 Para 1

…eter the Applicant from engaging in yet another incident of premeditated violence on an unarmed person. [1] R v Kemble [2003] QCA 190; R v Neivandt [2000] QCA 224.…
R v Ellison
[2012] QCA 113 Para 1

…ths had been imposed with an operational period of two years, however the injuries were clearly less serious and there was no kicking or stomping. [5][2000] QCA 224.…
R v McLean
[2011] QCA 218

…v KU; ex parte A-G (Qld) (No 2) [2011] 1 Qd R 439; [2008] QCA 154, considered R v Laskus [1996] QCA 120, considered R v Neivandt [2000] QCA 224, considered R v Poynter, Norman and Parker, ex parte A-G (Qld) [2006] QCA 517, considered R v Reuben [2001] QCA 322, considered R v Taylor & Napatali; Ex parte Attorney-…
CCR v QPS
[2010] QDC 486

…ervice v Paul David Wilson [2008] reported on the Chief Magistrate's notes, 7 of 2008 R v Barling [1999] QCA 16 R v Denyer [2009] QCA 53 R v Neivandt [2000] QCA 224 R v Sysel [2000] QCA 233 R v Taylor [2000] QCA 311 R v Warwick [2006] QCA 83 R v Woods [2004] QCA 204 Sysel v Dinon and Ors [2002] QCA 149…
R v. Campbell
[2009] QCA 95 Para 1

…inal history. In support of that submission, he referred to three authorities: R v Neivandt ;[1] R v Beer & Massey [2] and R v Lude; R v Love .[3] [1][2000] QCA 224. [2][2002] QCA 397. [3][2007] QCA 319.…
R v Denyer
[2009] QCA 53 Para 1

…"returning him to prison" to serve the remainder of his term. The applicant relies upon the view of a majority of this Court in R v Neivandt .[3] [3][2000] QCA 224.…
R v Gibb
[2007] QCA 191

…herd [2006] QCA 233, CA No 67 of 2006, 21 June 2006, cited R v Neivandt [2000] QCA 224, CA No 414 of 1999, 9 June 2000, cited COUNSEL: L Alford for the appellant M J Copley for the respondent SOLICITORS: Fairlie Legals for the appellant Director of Public Prosecutions (Queensland) for the respondent…
R v Middleton and Johns
[2006] QCA 92 Para 1

…Mr Davis SC also referred to R v Nievandt [2000] QCA 224. In that matter the 37 year old applicant was convicted after a trial of assault occasioning bodily harm in company, and sentenced to 12 months imprisonment suspended after four months. That applicant’s son had insulted the complainant’s wife when in the co…
R v Jones and Bradshaw
[2003] QCA 230

…criminal history - where applicants expressed remorse - whether sentence imposed was outside the range of a sound sentencing discretion R v Neivandt [2000] QCA 224; CA No 414 of 1999, 9 June 2000, considered R v Sheret [2002] QCA 162; CA No 308 of 2001, 10 May 2002, considered COUNSEL: J D Henry (Cairns) for app…

View all 12 citing cases →

Cases cited in this decision · 3 of 3 shown

R v Yanner & Yanner, ex parte A-G
[1999] QCA 515 Para 1

…which it was noted that a fully suspended term might be imposed particularly in the case of young offenders where the level of harm is not great. [1][1999] QCA 515, 10 December 1999.…
THE QUEEN v MOORE, Jeffrey Allan
[1999] QCA 172 Para 1

…bled. Moore was just under 20 years old and pleaded guilty. Even so, the circumstances were overall more serious than those of the present matter. [2][1999] QCA 172, 14 May 1999.…
Chamberlain v The Queen (No 1)
[1983] HCA 13 Para 1

…o not think the present case (36 days served out of four months) is such a case. [3] Ex parte Maher [1986] 1 Qd R 303; Chamberlain v The Queen (No 1) (1983) 153 CLR 514, 519.…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

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