R v Ottley - [2009] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ottley [2009] QCA 211

PARTIES:

R
v
OTTLEY, Shannon Mathew
(appellant)

FILE NO/S:

CA No 220 of 2008
DC No 160 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

24 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2009

JUDGES:

Holmes and Muir JJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Appeal against conviction dismissed;

2.   Application for leave to appeal against sentence allowed;

3.   On count 1, sentence of five years imprisonment with a serious violent offence declaration substituted;

4.   Sentence on count 5 affirmed;

5.   Conviction on counts 4, 6, 7, 8 and 9 affirmed, but sentences imposed on each of those counts set aside, with no further penalty imposed;

6.   Period of 350 days from 9 August 2008 to 24 July 2009 declared to be imprisonment already served under sentences imposed on counts 1 and 5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted of one count of torture, three counts of assault occasioning bodily harm, one count of dangerous operation of a vehicle, one count of deprivation of liberty and one count of grievous bodily harm – where appellant complained that, inter alia, complainant’s evidence was unreliable, on account of her alcoholism, mental illness and untruthfulness – whether complainant’s evidence so unreliable that no properly instructed jury could have convicted on it – whether convictions unsafe

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – APPEAL MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to six years imprisonment for the torture, two years imprisonment on each count of assault occasioning bodily harm, 12 months imprisonment for the dangerous operation of a vehicle, and four years imprisonment for doing grievous bodily harm; all terms to be served concurrently – where serious violent offence declaration made in respect of the torture and grievous bodily harm – where the torture consisted, over a one month period, of the three counts of assault occasioning bodily harm of which appellant convicted, the deprivation of complainant’s liberty and the grievous bodily harm – where appellant’s conduct comprised a series of angry responses in a volatile and difficult relationship – whether separate sentences should have been imposed on the counts which constituted the torture – whether sentence manifestly excessive

R v B; ex parte A-G (2000) 110 A Crim R 499; [2000] QCA 110
R v HAC [2006] QCA 460

COUNSEL:

Appellant appeared on his own behalf
P F Rutledge for the respondent

SOLICITORS:

Appellant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

:HOLMES JA After a trial in the District Court, the appellant was convicted of: torturing the complainant, S, between 11 May and 18 October 2007…

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 Ottley

Details

AGLC: R v Ottley [2009] QCA 211
Case: [2009] QCA 211
Decision Date: 24 July 2009

CaseChat Overview and Summary

The appellant, Ottley, was convicted of several serious criminal offences, including torture, assault occasioning bodily harm, dangerous operation of a vehicle, deprivation of liberty, and grievous bodily harm. He appealed against both his conviction and the sentence imposed. The primary legal issues before the court were whether the appellant's conviction was unreasonable or insupportable given the evidence, and whether the sentence was manifestly excessive or inadequate.

The court found that the evidence provided by the complainant, despite her alcoholism, mental illness, and instances of untruthfulness, was reliable enough for a properly instructed jury to convict the appellant. The court held that the complainant's testimony was corroborated by other evidence and that the appellant's complaints about the reliability of her evidence did not undermine the safety and security of the convictions. Consequently, the appeal against the conviction was dismissed. Regarding the sentence, the court determined that the original sentences were not manifestly excessive or inadequate. However, it found that separate sentences should not have been imposed on the counts that constituted the torture, and therefore, set aside the sentences on those counts without imposing any further penalty.

The court's final orders included dismissing the appeal against the conviction, allowing the application for leave to appeal against the sentence, substituting the sentence on count 1 with five years imprisonment with a serious violent offence declaration, affirming the sentence on count 5, and setting aside the sentences on counts 4, 6, 7, 8, and 9 with no further penalty imposed. The period of 350 days from 9 August 2008 to 24 July 2009 was declared to be imprisonment already served under the sentences imposed on counts 1 and 5.

Orders

Orders of the court

1. Appeal against conviction dismissed;

2. Application for leave to appeal against sentence allowed;

3. On count 1, sentence of five years imprisonment with a serious violent offence declaration substituted;

4. Sentence on count 5 affirmed;

5. Conviction on counts 4, 6, 7, 8 and 9 affirmed, but sentences imposed on each of those counts set aside, with no further penalty imposed;

6. Period of 350 days from 9 August 2008 to 24 July 2009 declared to be imprisonment already served under sentences imposed on counts 1 and 5.

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.

CITATION:	R v Ottley [2009] QCA 211
PARTIES:	R v OTTLEY, Shannon Mathew (appellant)
FILE NO/S:	CA No 220 of 2008 DC No 160 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	24 July 2009
DELIVERED AT:	Brisbane
HEARING DATE:	7 May 2009
JUDGES:	Holmes and Muir JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed; 2. Application for leave to appeal against sentence allowed; 3. On count 1, sentence of five years imprisonment with a serious violent offence declaration substituted; 4. Sentence on count 5 affirmed; 5. Conviction on counts 4, 6, 7, 8 and 9 affirmed, but sentences imposed on each of those counts set aside, with no further penalty imposed; 6. Period of 350 days from 9 August 2008 to 24 July 2009 declared to be imprisonment already served under sentences imposed on counts 1 and 5.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted of one count of torture, three counts of assault occasioning bodily harm, one count of dangerous operation of a vehicle, one count of deprivation of liberty and one count of grievous bodily harm – where appellant complained that, inter alia, complainant’s evidence was unreliable, on account of her alcoholism, mental illness and untruthfulness – whether complainant’s evidence so unreliable that no properly instructed jury could have convicted on it – whether convictions unsafe CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – APPEAL MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to six years imprisonment for the torture, two years imprisonment on each count of assault occasioning bodily harm, 12 months imprisonment for the dangerous operation of a vehicle, and four years imprisonment for doing grievous bodily harm; all terms to be served concurrently – where serious violent offence declaration made in respect of the torture and grievous bodily harm – where the torture consisted, over a one month period, of the three counts of assault occasioning bodily harm of which appellant convicted, the deprivation of complainant’s liberty and the grievous bodily harm – where appellant’s conduct comprised a series of angry responses in a volatile and difficult relationship – whether separate sentences should have been imposed on the counts which constituted the torture – whether sentence manifestly excessive R v B; ex parte A-G (2000) 110 A Crim R 499; [2000] QCA 110 R v HAC [2006] QCA 460
COUNSEL:	Appellant appeared on his own behalf P F Rutledge for the respondent
SOLICITORS:	Appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent