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 2020DIVISION:
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…
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- R v Ponting [2022] QCA 83
- Case
- [2022] QCA 83
- Decision Date
CaseChat Overview and Summary
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
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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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