R v. Newton - [2008] QCA 248

SUPREME COURT OF QUEENSLAND

CITATION:

R v Newton [2008] QCA 248

PARTIES:

R
v
NEWTON, Michael John
(applicant)

FILE NO/S:

CA No 86 of 2008
DC No 85 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

22 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 June 2008

JUDGES:

Keane and Fraser JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal against sentence refused1.

It is declared that each of the offences the subject of counts 6 and 7 on the indictment was a serious violent offence2.

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 REFUSED – PARTICULAR OFFENCES – SEXUAL OFFENCES – where the applicant was convicted on his own plea of eight offences including four counts of rape, one count of assault with intent to rape, one count of sexual assault, one count of burglary and one count of deprivation of liberty – where the applicant was sentenced to an effective 12 years imprisonment – where under the operation of s 182 of the Corrective Services Act 2006 (Qld) the applicant must serve 80 per cent of this term before being considered eligible for parole – whether the sentence imposed was in the circumstances manifestly excessive

Corrective Services Act 2006 (Qld), s 182
Penalties and Sentences Act 1992 (Qld), s 161A, s 161B(1)

R v Newman (2007) 172 A Crim R 171; [2007] QCA 198, applied

COUNSEL:

C W Heaton for the applicant
T A Fuller for the respondent

SOLICITORS:

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

KEANE JA:
On 25 March 2008 the applicant was convicted on his own plea of eight offences which occurred on the night of 21 December 2006 when he broke into the home of the complainant and subjected her to assaults and repeated acts of rape. He was sentenced to an effective term of 12 years imprisonment with

397 days of pre-sentence custody being declared to be time served under that sentence.

The applicant seeks leave to appeal against the sentences which were imposed upon him on the ground that they were "manifestly excessive in all the circumstances". I will consider the argument advanced in support of this ground after first summarising the circumstances of the offences, the applicant's personal circumstances, and the approach of the learned sentencing judge to the sentencing of the applicant.

The circumstances of the offences

The complainant is a grandmother. On the evening in question, she celebrated her 64^th birthday at her home with a small group of friends. She went to bed after her friends had gone. She was awakened some time later, with the applicant standing over her. She did not know him.…

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. Newton

Details

AGLC: R v Newton [2008] QCA 248
Case: [2008] QCA 248
Decision Date: 22 August 2008

CaseChat Overview and Summary

The appellant, Newton, appealed against his sentence following his conviction for eight offences, including four counts of rape, one count of assault with intent to rape, one count of sexual assault, one count of burglary, and one count of deprivation of liberty. He was sentenced to an effective 12 years imprisonment, with the requirement under s 182 of the Corrective Services Act 2006 (Qld) that he must serve 80 per cent of this term before being considered eligible for parole. Newton contended that the sentence imposed was in the circumstances manifestly excessive.

The court was required to determine whether the sentence imposed was manifestly excessive, taking into account the nature and circumstances of the offences, the appellant's criminal history, and the principles of sentencing. The court had to balance the need to deter and punish the appellant with the need to ensure that the sentence was proportionate to the seriousness of the offences committed.

In dismissing the appeal, the court found that the sentence imposed was not manifestly excessive. The court considered the gravity of the offences, the appellant's criminal history, and the need to protect the community. The court held that the sentence reflected the seriousness of the offences and was proportionate to the appellant's culpability. The court also noted that the appellant's early guilty plea and the absence of aggravating factors did not warrant a reduction in the sentence. The court declared that each of the offences the subject of counts 6 and 7 on the indictment was a serious violent offence.

The court refused the application for leave to appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused1.

It is declared that each of the offences the subject of counts 6 and 7 on the indictment was a serious violent offence2.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Newton [2008] QCA 248
PARTIES:	R v NEWTON, Michael John (applicant)
FILE NO/S:	CA No 86 of 2008 DC No 85 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	22 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	19 June 2008
JUDGES:	Keane and Fraser JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal against sentence refused1. It is declared that each of the offences the subject of counts 6 and 7 on the indictment was a serious violent offence2.
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 REFUSED – PARTICULAR OFFENCES – SEXUAL OFFENCES – where the applicant was convicted on his own plea of eight offences including four counts of rape, one count of assault with intent to rape, one count of sexual assault, one count of burglary and one count of deprivation of liberty – where the applicant was sentenced to an effective 12 years imprisonment – where under the operation of s 182 of the Corrective Services Act 2006 (Qld) the applicant must serve 80 per cent of this term before being considered eligible for parole – whether the sentence imposed was in the circumstances manifestly excessive Corrective Services Act 2006 (Qld), s 182 Penalties and Sentences Act 1992 (Qld), s 161A, s 161B(1) R v Newman (2007) 172 A Crim R 171; [2007] QCA 198, applied
COUNSEL:	C W Heaton for the applicant T A Fuller for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent