R v Ponting

Case [2022] QCA 83


SUPREME COURT OF QUEENSLAND

CITATION:

R v Ponting [2022] QCA 83

PARTIES:

R
v
PONTING, Daniel William

(appellant/applicant)

FILE NO/S:

CA No 113 of 2021
DC No 476 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction and Sentence: 30 April 2021 (Dann DCJ)

DELIVERED ON:

20 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2022

JUDGES: 

Bowskill CJ and Sofronoff P and Martin SJA

ORDERS:

1.   The appeal against conviction is dismissed.

2.   Grant leave to appeal against the sentences imposed and allow the appeal against sentence.

3.   The sentence imposed by the court below is set side, and the appellant is resentenced as follows:

(i)   on count 1 (burglary in the night) – seven years’ imprisonment; and

(ii)   on count 2 (sexual assault) – four years’ imprisonment.

4.   Those terms are concurrent with one another, but cumulative upon the term of seven years imposed in 2016.

5. Pursuant to s 159A(1) of the Penalties and Sentences Act, declare that the one day spent in presentence custody from 28 to 29 November 2018 is taken to be imprisonment already served under the sentences imposed.

6. For the purpose of s 159A(3A) of the Penalties and Sentences Act, declare that the time the appellant was held in custody from 28 November 2018 to 24 April 2021, a total of 880 days, is not to be taken to be imprisonment already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of burglary in the night and one count of sexual assault – where the prosecution’s case against the appellant was circumstantial and identification was the only issue at trial – where the appellant appeals against his conviction on the ground that it is unreasonable or cannot be supported having regard to the evidence – whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to eight years’ imprisonment for the burglary and a concurrent six years’ imprisonment for the sexual assault – where, in respect of the sexual assault conviction, the appellant was declared to have been convicted of a “serious violent offence” – where the appellant seeks to appeal his sentence on the ground that it was manifestly excessive in all of the circumstances – where the appellant contends that the excessiveness arises because the sentencing judge erred in the application of the totality principle in the context of the decision to make a declaration that the conviction of count 2 (sexual assault) was a conviction of a “serious violent offence” – where the appellant submits this declaration…

Continue reading R v Ponting

Sign in free to access the full text

Details
AGLC
R v Ponting [2022] QCA 83
Case
[2022] QCA 83
Decision Date

CaseChat Overview and Summary

The appellant, Ponting, appealed against his conviction and sentence following his conviction for one count of burglary in the night and one count of sexual assault. The prosecution's case against the appellant was circumstantial, and the primary issue at trial was the identification of the appellant as the perpetrator of the crimes. The appellant appealed against his conviction on the ground that it was unreasonable or could not be supported having regard to the evidence. Additionally, the appellant appealed against his sentence, arguing that it was manifestly excessive due to an alleged error by the sentencing judge in applying the totality principle, particularly in relation to the declaration that the sexual assault conviction was a conviction of a "serious violent offence".

The court found that the jury was open to be satisfied beyond reasonable doubt that the appellant was guilty, despite the circumstantial nature of the prosecution's case. The court held that the evidence, when considered as a whole, was sufficient to support the appellant's conviction. Regarding the sentence, the court found that the appellant's contentions had merit. The court held that the sentence was manifestly excessive because of the sentencing judge's error in applying the totality principle and making the declaration that the sexual assault conviction was a conviction of a "serious violent offence". Consequently, the court allowed the appeal against the sentence.

The court set aside the original sentence and resentenced the appellant. The appellant was sentenced to seven years’ imprisonment for the burglary in the night and four years’ imprisonment for the sexual assault. These sentences were to run concurrently with each other but cumulatively upon the term of seven years imposed in 2016. The court also made specific declarations regarding the appellant's presentence custody under the Penalties and Sentences Act. The court declared that the one day spent in presentence custody was to be taken as imprisonment already served, but the 880 days held in custody from 28 November 2018 to 24 April 2021 were not to be taken as imprisonment already served under the sentence.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. Grant leave to appeal against the sentences imposed and allow the appeal against sentence.

3. The sentence imposed by the court below is set side, and the appellant is resentenced as follows:

(i) on count 1 (burglary in the night) – seven years’ imprisonment; and

(ii) on count 2 (sexual assault) – four years’ imprisonment.

4. Those terms are concurrent with one another, but cumulative upon the term of seven years imposed in 2016.

5. Pursuant to s 159A(1) of the Penalties and Sentences Act, declare that the one day spent in presentence custody from 28 to 29 November 2018 is taken to be imprisonment already served under the sentences imposed.

6. For the purpose of s 159A(3A) of the Penalties and Sentences Act, declare that the time the appellant was held in custody from 28 November 2018 to 24 April 2021, a total of 880 days, is not to be taken to be imprisonment already served under the sentence.

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.