R v Noltenius - [2014] QCA 303

SUPREME COURT OF QUEENSLAND

CITATION:

R v Noltenius [2014] QCA 303

PARTIES:

R
v
NOLTENIUS, Paul Leslie
(applicant)

FILE NO/S:

CA No 19 of 2014
DC No 198 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

28 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2014

JUDGES:

Muir and Fraser JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found guilty after trial of unlawful grievous bodily harm, and robbery with a circumstance of aggravation – where the applicant was sentenced to seven years imprisonment on each count, to be served concurrently, and the conviction for unlawful grievous bodily harm was declared to be a serious violent offence – where the applicant stabbed the complainant from behind in an unprovoked manner – whether the primary judge erred in declaring an offence to be a serious violent offence – whether the sentence was manifestly excessive

R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
R v Parker [2011] QCA 198, cited
R v Tahir; Ex parte Attorney-General (Qld) [2013] QCA 294, cited
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, cited

COUNSEL:

The applicant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

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

MUIR JA: I agree that the application for leave to appeal against sentence should be refused for the reasons given by Fraser JA.

FRASER JA: The applicant was found guilty by a jury after a trial in the District Court of unlawfully doing grievous bodily harm and of robbery with the circumstance of aggravation that he was armed with a dangerous instrument. On each offence the applicant was sentenced to seven years imprisonment, to be served concurrently. The sentencing judge (who was the trial judge) declared the conviction on the unlawful grievous bodily harm offence to be a conviction of a serious violent offence, with the statutory consequence that the applicant will not be eligible for parole until after he has served 80 per cent of the seven year term of imprisonment. A period of pre-sentence custody of 623 days was deemed to be imprisonment already served under the sentence.

The applicant has applied for leave to appeal against his sentence on the grounds that the sentencing judge erred in exercising the discretion to make a serious violent offence declaration and that the sentence is manifestly excessive in all of the circumstances.

Circumstances of the offences

The complainant gave evidence that shortly after midnight on 20 November 2011 he went to a unit complex in Nerang to visit…

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 Noltenius

Details

AGLC: R v Noltenius [2014] QCA 303
Case: [2014] QCA 303
Decision Date: 28 November 2014

CaseChat Overview and Summary

The applicant, Noltenius, was convicted of inflicting unlawful grievous bodily harm and robbery with an aggravating circumstance. Following a trial, Noltenius was sentenced to seven years imprisonment for each count, to be served concurrently. The conviction for unlawful grievous bodily harm was declared to be a serious violent offence. Noltenius appealed against the sentence, arguing that the primary judge erred in declaring the offence to be a serious violent offence and that the sentence was manifestly excessive.

The appeal centred on the declaration of the unlawful grievous bodily harm conviction as a serious violent offence and the appropriateness of the sentence imposed. The court was required to determine whether the primary judge erred in making this declaration and whether the sentence was manifestly excessive. Noltenius contended that the stabbing was not premeditated and that the sentence was disproportionate to the offence.

The court held that the primary judge did not err in declaring the unlawful grievous bodily harm conviction to be a serious violent offence, as the nature of the attack, being unprovoked and from behind, justified this classification. Regarding the sentence, the court found that it was neither manifestly excessive nor inadequate. The court considered the gravity of the offences, Noltenius' criminal history, and the need for deterrence and retribution. Ultimately, the court found that the sentence imposed was appropriate and dismissed the appeal against the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 Noltenius [2014] QCA 303
PARTIES:	R v NOLTENIUS, Paul Leslie (applicant)
FILE NO/S:	CA No 19 of 2014 DC No 198 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	28 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2014
JUDGES:	Muir and Fraser JJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found guilty after trial of unlawful grievous bodily harm, and robbery with a circumstance of aggravation – where the applicant was sentenced to seven years imprisonment on each count, to be served concurrently, and the conviction for unlawful grievous bodily harm was declared to be a serious violent offence – where the applicant stabbed the complainant from behind in an unprovoked manner – whether the primary judge erred in declaring an offence to be a serious violent offence – whether the sentence was manifestly excessive R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Parker [2011] QCA 198, cited R v Tahir; Ex parte Attorney-General (Qld) [2013] QCA 294, cited Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, cited
COUNSEL:	The applicant appeared on his own behalf G P Cash for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent