R v Piper

Case [2015] QCA 129

SUPREME COURT OF QUEENSLAND

CITATION:

R v Piper [2015] QCA 129

PARTIES:

R
v
PIPER, Douglas Paul
(applicant)

FILE NO/S:

CA No 13 of 2015
SC No 39 of 2014
SC No 49 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:


Supreme Court at Rockhampton – Unreported, 13 August 2014

DELIVERED ON:

17 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2015

JUDGES:

Gotterson and Morrison JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The applicant’s Notice of Abandonment filed 13 September 2014 be set aside.

2.   The applicant’s application for leave to appeal against his sentence, filed 29 August 2014, be reinstated as of and from that date.

3.   The application for leave to appeal the sentence be granted.

4.   The appeal be allowed, to the limited extent that the applicant’s parole eligibility date be fixed at 1 February 2016 instead of 1 October 2016.

5.   The notice of application for an extension of time within which to appeal, and the application for leave to appeal against sentence, both filed on 22 January 2015, be struck out.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant had filed an application for leave to appeal against sentence – where the applicant subsequently filed a Notice of Abandonment – where the applicant was not legally represented as at the date of filing the Notice of Abandonment and was not aware of the legal consequences of filing a Notice of Abandonment – whether the applicant should be given leave to set aside the Notice of Abandonment and reinstate the application for leave to appeal

CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant’s attack on the complainant was premeditated, unanticipated, caused life-threatening wounds and was not provoked – where the applicant had, after attacking the victim, sought to attack his estranged wife – where the applicant did not have a prior criminal history – where the applicant’s estranged wife had recently obtained a Domestic Violence Protection Order against the applicant – whether the sentence imposed was manifestly excessive

Criminal Practice Rules 1999 (Qld), r 64

Barbaro v The Queen (2014) 88 ALJR 372; (2014) 236 A Crim R 116; [2014] HCA 2, cited
R v Amery[2011] QCA 383, cited
R v Douglas[2004] QCA 1, cited
R v Flew[2008] QCA 290, applied
R v Folwell, Andrew Grant, unreported - 11 September 2013, (Mackay); Indictment No 22 of 2013, applied
R v Holland[2008] QCA 200, cited
R v Laing[2008] QCA 317, cited
R v Lyon[2006] QCA 146, cited
R v MBC[2008] QCA 263, cited
R v Mitchell

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Details
AGLC
R v Piper [2015] QCA 129
Case
[2015] QCA 129
Decision Date

CaseChat Overview and Summary

The case of R v Piper involved an appeal against the applicant's sentence, which was initially filed in August 2014. A Notice of Abandonment was subsequently filed on 13 September 2014, but the applicant now seeks leave to set aside this notice and reinstate the original application for leave to appeal. The applicant argues that he was not legally represented and was unaware of the consequences of filing the Notice of Abandonment. The court was tasked with determining whether the applicant should be granted leave to set aside the Notice of Abandonment and reinstate his application for leave to appeal. Additionally, the court considered whether the sentence imposed was manifestly excessive or inadequate, given the circumstances of the offence.

The primary legal issue was whether the applicant should be allowed to set aside the Notice of Abandonment and reinstate his application for leave to appeal against his sentence. This involved assessing the principles governing the grant or refusal of extensions of time for appeals. The court also had to determine whether the sentence was manifestly excessive or inadequate, considering the premeditated nature of the attack, the life-threatening injuries sustained by the victim, and the applicant's criminal history. Furthermore, the court examined whether the applicant's attempt to attack his estranged wife after the initial assault and the recent imposition of a Domestic Violence Protection Order against the applicant influenced the severity of the sentence.

The court found that the applicant should be granted leave to set aside the Notice of Abandonment and reinstate his application for leave to appeal. The court recognised that the applicant was not legally represented when he filed the Notice of Abandonment and was unaware of its legal consequences. Given these circumstances, the court determined that it was in the interests of justice to allow the applicant to withdraw the notice and reinstate his application. Regarding the sentence, the court concluded that while the attack was premeditated and caused severe injuries, the applicant's lack of prior criminal history and his productive life prior to the offence were mitigating factors. The court allowed the appeal to the extent of fixing the applicant's parole eligibility date at 1 February 2016 instead of 1 October 2016, finding the original sentence to be slightly excessive.

The final orders of the court were to set aside the Notice of Abandonment filed on 13 September 2014, reinstate the applicant's application for leave to appeal against sentence filed on 29 August 2014, grant the application for leave to appeal, allow the appeal to the extent of adjusting the parole eligibility date, and strike out the notice of application for an extension of time and the application for leave to appeal both filed on 22 January 2015.

Orders

Orders of the court

1. The applicant’s Notice of Abandonment filed 13 September 2014 be set aside.

2. The applicant’s application for leave to appeal against his sentence, filed 29 August 2014, be reinstated as of and from that date.

3. The application for leave to appeal the sentence be granted.

4. The appeal be allowed, to the limited extent that the applicant’s parole eligibility date be fixed at 1 February 2016 instead of 1 October 2016.

5. The notice of application for an extension of time within which to appeal, and the application for leave to appeal against sentence, both filed on 22 January 2015, be struck out.

Background

Background to the litigation

The applicant seeks leave to appeal his sentence of imprisonment. He had initially filed an application for leave to appeal against his sentence in August 2014. A Notice of Abandonment was filed on 13 September 2014. Whilst a fresh application for leave to appeal the sentence was filed on 22 January 2015, the applicant now applies, pursuant to rule 69(4) of the Criminal Practice Rules 1999 (Qld), for orders setting aside the Notice of Abandonment and reinstating his application for leave to appeal against sentence.Background The applicant was born on 25 March 1957. He was aged 56 years at the time of the offence, and 57 years at the sentence. He had no prior criminal history. He had led a productive life with a good work history. He had been married, although he and his wife separated some time prior to the offence. The protection order had been imposed less than a month before its contravention. That contravention occurred at the time of the offence of unlawfully doing grievous bodily harm with an intent to do grievous bodily harm. Relevantly, the DVPO prevented the applicant from coming within five metres of his wife.Offences On the afternoon of 29 September 2013, the applicant’s wife and a friend attended the Prince of Wales Hotel at Blackall. The applicant’s wife and her friend were not in a romantic relationship, although the applicant seemed to think they were in such a relationship. Whilst they were talking at the bar of that hotel, the applicant entered the hotel and attacked his wife’s friend. The applicant was armed with a knife. It was 18 centimetres long, with an eight centimetre blade. CCTV footage captured the attack. It revealed the victim was struck with the knife, without warning, forcefully and on multiple occasions. He sustained six stab wounds, the most serious to the side of his neck, involving a five centimetre laceration affecting the facial artery. The victim had other cuts to his neck and face. He also sustained a cut to his torso and an elbow. The applicant ceased his attack when a bystander sought to intervene. The applicant moved towards his wife but desisted when she moved behind a bystander. The applicant then left the hotel. As he left, he told bystanders police would know where to find him. During the attack, the applicant told his wife “you’ve pushed me too far. I’ve had a gutful of you bitch. I bet you are scared of me now.” The applicant returned home and later telephoned police to advise there would be no violence towards them when they came to apprehend him. The victim lost a significant quantity of blood as a consequence of his injuries. He required treatment in an intensive care unit of a hospital. He was discharged after some three or four days. Without treatment he probably would have lost his life due to blood loss and the compromise of his airway. Whilst he recovered from his physical injuries, his victim impact statement spoke of continuing psychological difficulties and significant changes to his lifestyle as a consequence of having become withdrawn and anxious following the attack.

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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