R v NT

Case [2018] QCA 106 5 June 2018

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SUPREME COURT OF QUEENSLAND

CITATION:

R v NT [2018] QCA 106

PARTIES:

R
v
NT
(applicant)

FILE NO/S:

CA No 264 of 2017
DC No 2268 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 12 October 2017 (Koppenol DCJ)

DELIVERED ON:

5 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2018

JUDGES:

Gotterson and Morrison JJA and Atkinson J

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TIME SPENT IN CUSTODY – where the applicant was found guilty of two counts of torture, one count of common assault, one count of rape, one count of assault occasioning bodily harm whilst armed and two counts of deprivation of liberty – where 502 days of pre-sentence custody could be declared for the purposes of s 159A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge had a discretion as to whether to account for that time in a reduction of the head sentence and the parole eligibility date – where the sentencing judge made an allowance for the pre-sentence custody in imposing an earlier parole eligibility date – where the sentencing judge failed to explain how the allowance in respect of the head sentence was dealt with or to give reasons as to why such an allowance should not be made – whether the sentencing judge was in error

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found guilty of two counts of torture, one count of common assault, one count of rape, one count of assault occasioning bodily harm whilst armed and two counts of deprivation of liberty – where 502 days of pre-sentence custody could be declared for the purposes of s 159A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge had a discretion as to whether to account for that time in a reduction of the head sentence and the parole eligibility date – where the sentencing judge made an allowance for the pre-sentence custody in imposing an earlier parole eligibility date – where the sentencing judge failed to explain how the allowance in respect of the head sentence was dealt with or to give reasons as to why such an allowance should not be made – where the applicant engaged in heinous acts of domestic violence against the complainant – whether, if an error was found to have been committed, the sentence was rendered manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited
R v Carlisle[2017] QCA 258, cited
R v Chinfat[1995] QCA 508, cited
R v Edwards[1997] QCA 472, cited
R v Hunt[1994] QCA 440, cited
R v Lonesborough[1999] QCA 120,…

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 NT

Details

AGLC: R v NT [2018] QCA 106
Case: [2018] QCA 106
Decision Date: 5 June 2018

CaseChat Overview and Summary

The case before the court involved the applicant, who had been found guilty of two counts of torture, one count of common assault, one count of rape, one count of assault occasioning bodily harm whilst armed, and two counts of deprivation of liberty. The court was asked to consider whether the sentencing judge had erred in the way they accounted for the applicant's pre-sentence custody. Specifically, the court needed to determine if the sentencing judge had appropriately exercised their discretion under section 159A of the Penalties and Sentences Act 1992 (Qld), which allows for time spent in custody to be taken into account in the sentencing process.

The court considered whether the sentencing judge was in error by making an allowance for the pre-sentence custody in imposing an earlier parole eligibility date but failing to adequately explain how this allowance was dealt with in respect of the head sentence or to provide reasons as to why such an allowance should not be made. The court evaluated whether the sentencing judge's approach resulted in a sentence that was manifestly excessive or inadequate. Given the severity of the applicant's crimes, which involved heinous acts of domestic violence against the complainant, the court had to determine if the error, if any, rendered the sentence manifestly excessive.

The court concluded that despite the error in the sentencing process, the sentence was not rendered manifestly excessive. The court held that the applicant's crimes were of a serious nature and warranted a significant custodial sentence. The court found that the sentencing judge had exercised their discretion appropriately in imposing an earlier parole eligibility date, and the overall sentence was not manifestly excessive. Therefore, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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

Full text does not contain this section.

Citations

AGLC Citation

R v NT [2018] QCA 106

Most Recent Citation

R v De Silva [2018] QCA 274

Cases citing this decision · 7 of 7 shown

R v Cdu
[2025] QCA 145 Para 9

…[2009] QCA 236; R v Ray [2011] QCA 365; R v Mahony & Shenfield [2012] QCA 366; R v Rankmore; ex parte Attorney-General (Qld) [2002] QCA 492; R v NT [2018] QCA 106; R v Mizner [2019] QCA 198.…
R v BEA
[2023] QCA 78 Para 7

…of occasions on which the offending took place and the public humiliation and degradation visited upon the complainant by the applicant.”[23] [21][2018] QCA 106. [22][2018] QCA 106, [39]. [23]Ibid, [40].…
R v FBC
[2023] QCA 74 Para 21

…ion of an automatic serious violent offence declaration to an early release on parole. [1] R v TAQ [2020] QCA 200; R v Chinfat [1995] QCA 508; R v NT [2018] QCA 106; R v Heckendorf [2017] QCA 59.…
R v Campbell
[2022] QCA 135 Para 7

…that had they been followed some identifiable recognition could have been seen in respect of the pre-sentence custody. It was submitted that:[32] [28][2018] QCA 106. [29] R v Armitage; R v Armitage; R v Dean [2021] QCA 185. [30][2017] QCA 258. [31][2013] QCA 402. [32]Applicant’s outline paragraphs 13.1- 13.5. (a)…
R v Winkelmann
[2022] QDC 49 Para 15

…arily counted in respect of the service of that period of imprisonment. [21] Ibid at [29]. [22] Eg: see; R v Fabre [2008] QCA 386 at [14], R v NT [2018] QCA 106 at [26]-[28] and R v Vidler [2018] QCA 232 at pp3-4.…
R v De Silva
[2018] QCA 274 Para 38

…e head sentence should also be varied by reducing it by the time spent in immigration detention. The applicant should be resentenced accordingly. [43][2018] QCA 106 per Atkinson J at [28], [29] (Gotterson and Morrison JJA concerning). Orders…
Ross v Commissioner of Police
[2018] QDC 99 Para 1

…the sentence which was imposed was not manifestly excessive nor otherwise affected by error”.[11] [10][2007] QCA 243. [11]Ibid at [12]; Cf R v NT [2018] QCA 106 at [34] where Atkinson J [with whom Gotterson JA and Morrison JA agreed) on an application to appeal against a sentence imposed in the District Court sta…

View all 7 citing cases →

Cases cited in this decision · 15 of 15 shown

R v Carlisle
[2017] QCA 258 Para 27

…declarable under s 159A of the Penalties and Sentences Act 1992 (Qld) at the first opportunity.” [3]Gotterson and Morrison JJA concurring. [4][2017] QCA 258 at [46].…
Kentwell v The Queen
[2014] HCA 37

…en committed, the sentence was rendered manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited R v Carlisle [2017] QCA 258, cited R v Chinfat [1995] QCA 508, cited R v Edwards [1997] QCA 472, cited R v Hunt [1994] QCA 440, cited R v Lonesborough [1999]…
R v Fabre
[2008] QCA 386 Para 28

…6] but the usual practice is to perform both reductions.[7] [5] R v Carlisle [2017] QCA 258 [46] citing R v Skedgwell [1999] 2 Qd R 97; R v Fabre [2008] QCA 386. [6] R v Skedgwell [1999] 2 Qd R 97 at 100. [7] R v Carlisle [2017] QCA 258 [50].…
R v Rankmore; ex parte A-G (Qld)
[2002] QCA 492 Para 11

…R v Rankmore; ex parte A-G (Qld) [14] where a sentence of 12 years’ imprisonment on a rape count was imposed on an Attorney-General’s appeal. [14][2002] QCA 492.…
R v Taiters
[2001] QCA 324 Para 20

…cases of R v Lonesborough ;[21] R v Sambo ;[22] R v Edwards ;[23] R v Robinson ;[24] and R v Hunt .[25] [17][1997] QCA 287. [18][1995] QCA 508. [19][2001] QCA 324. [20][2000] QCA 265. [21][1999] QCA 120. [22][2000] QCA 191. [23][1997] QCA 472. [24][1997] QCA 66. [25][1994] QCA 440.…
R v McCauley
[2000] QCA 265 Para 20

…rough ;[21] R v Sambo ;[22] R v Edwards ;[23] R v Robinson ;[24] and R v Hunt .[25] [17][1997] QCA 287. [18][1995] QCA 508. [19][2001] QCA 324. [20][2000] QCA 265. [21][1999] QCA 120. [22][2000] QCA 191. [23][1997] QCA 472. [24][1997] QCA 66. [25][1994] QCA 440.…
R v Sambo
[2000] QCA 191 Para 20

…;[23] R v Robinson ;[24] and R v Hunt .[25] [17][1997] QCA 287. [18][1995] QCA 508. [19][2001] QCA 324. [20][2000] QCA 265. [21][1999] QCA 120. [22][2000] QCA 191. [23][1997] QCA 472. [24][1997] QCA 66. [25][1994] QCA 440.…
R v Lonesborough
[1999] QCA 120 Para 20

…o ;[22] R v Edwards ;[23] R v Robinson ;[24] and R v Hunt .[25] [17][1997] QCA 287. [18][1995] QCA 508. [19][2001] QCA 324. [20][2000] QCA 265. [21][1999] QCA 120. [22][2000] QCA 191. [23][1997] QCA 472. [24][1997] QCA 66. [25][1994] QCA 440.…
R v Skedgwell
[1998] QCA 93

…] QCA 66, cited R v S [1997] QCA 287, cited R v Sambo [2000] QCA 191, cited R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, cited R v Taiters [2001] QCA 324, cited R v Wishart and Jenkins [1994] 2 Qd R 421; [1993] QCA 563, cited COUNSEL: E Whitton for the applicant T A Fuller QC for the respondent SOLICITORS: Leg…
R v Edwards
[1997] QCA 472 Para 20

…[24] and R v Hunt .[25] [17][1997] QCA 287. [18][1995] QCA 508. [19][2001] QCA 324. [20][2000] QCA 265. [21][1999] QCA 120. [22][2000] QCA 191. [23][1997] QCA 472. [24][1997] QCA 66. [25][1994] QCA 440.…
R v S
[1997] QCA 287 Para 20

…nsel for the respondent referred to the cases of R v Lonesborough ;[21] R v Sambo ;[22] R v Edwards ;[23] R v Robinson ;[24] and R v Hunt .[25] [17][1997] QCA 287. [18][1995] QCA 508. [19][2001] QCA 324. [20][2000] QCA 265. [21][1999] QCA 120. [22][2000] QCA 191. [23][1997] QCA 472. [24][1997] QCA 66. [25][1994]…
R v Robinson
[1997] QCA 66 Para 20

…25] [17][1997] QCA 287. [18][1995] QCA 508. [19][2001] QCA 324. [20][2000] QCA 265. [21][1999] QCA 120. [22][2000] QCA 191. [23][1997] QCA 472. [24][1997] QCA 66. [25][1994] QCA 440.…
R v Chinfat
[1995] QCA 508 Para 20

…ent referred to the cases of R v Lonesborough ;[21] R v Sambo ;[22] R v Edwards ;[23] R v Robinson ;[24] and R v Hunt .[25] [17][1997] QCA 287. [18][1995] QCA 508. [19][2001] QCA 324. [20][2000] QCA 265. [21][1999] QCA 120. [22][2000] QCA 191. [23][1997] QCA 472. [24][1997] QCA 66. [25][1994] QCA 440.…
R v Hunt
[1994] QCA 440 Para 20

…287. [18][1995] QCA 508. [19][2001] QCA 324. [20][2000] QCA 265. [21][1999] QCA 120. [22][2000] QCA 191. [23][1997] QCA 472. [24][1997] QCA 66. [25][1994] QCA 440.…
R v Wishart and Jenkins
[1993] QCA 563

…Qd R 97; [1998] QCA 93, cited R v Taiters [2001] QCA 324, cited R v Wishart and Jenkins [1994] 2 Qd R 421; [1993] QCA 563, cited COUNSEL: E Whitton for the applicant T A Fuller QC for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent…

Legislation cited in this decision · 4

Penalties and Sentences Act 1992 (Qld)
159A 2 mentions (from Para 4)
Bail Act 1980 (Qld)
1 mention (from Para 7)
Drugs Misuse Act 1986 (Qld)
1 mention (from Para 5)
Police Powers and Responsibilities Act 2000 (Qld)
1 mention (from Para 7)

CITATION:	R v NT [2018] QCA 106
PARTIES:	R v NT (applicant)
FILE NO/S:	CA No 264 of 2017 DC No 2268 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 12 October 2017 (Koppenol DCJ)
DELIVERED ON:	5 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2018
JUDGES:	Gotterson and Morrison JJA and Atkinson J
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – TIME SPENT IN CUSTODY – where the applicant was found guilty of two counts of torture, one count of common assault, one count of rape, one count of assault occasioning bodily harm whilst armed and two counts of deprivation of liberty – where 502 days of pre-sentence custody could be declared for the purposes of s 159A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge had a discretion as to whether to account for that time in a reduction of the head sentence and the parole eligibility date – where the sentencing judge made an allowance for the pre-sentence custody in imposing an earlier parole eligibility date – where the sentencing judge failed to explain how the allowance in respect of the head sentence was dealt with or to give reasons as to why such an allowance should not be made – whether the sentencing judge was in error CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found guilty of two counts of torture, one count of common assault, one count of rape, one count of assault occasioning bodily harm whilst armed and two counts of deprivation of liberty – where 502 days of pre-sentence custody could be declared for the purposes of s 159A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge had a discretion as to whether to account for that time in a reduction of the head sentence and the parole eligibility date – where the sentencing judge made an allowance for the pre-sentence custody in imposing an earlier parole eligibility date – where the sentencing judge failed to explain how the allowance in respect of the head sentence was dealt with or to give reasons as to why such an allowance should not be made – where the applicant engaged in heinous acts of domestic violence against the complainant – whether, if an error was found to have been committed, the sentence was rendered manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited R v Carlisle[2017] QCA 258, cited R v Chinfat[1995] QCA 508, cited R v Edwards[1997] QCA 472, cited R v Hunt[1994] QCA 440, cited R v Lonesborough[1999] QCA 120,…