R v Porter

[2002] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v Porter [2002] QCA 59

PARTIES:

R
v
PORTER, Christopher Grahame
(applicant/appellant)

FILE NO/S:

CA No 261 of 2001
DC No 2261 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application against conviction and sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2002

JUDGES:

McPherson and Williams JJA and Byrne 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 and appeal allowed to the extent of varying the recommendation to one of eligibility to apply for post prison community based release after the applicant has served 12 months of his cumulative sentence.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – ASSAULTS – SENTENCING – where the appellant convicted of assault occasioning bodily harm - where appellant received sentence of 2 years imprisonment cumulative upon a 7 ½ month sentence already being served with a recommendation that he be eligible for post prison community based release after serving 15 ¾ months of the total sentence – where learned sentencing judged erred in findings of fact in relation to issues of mitigation – where use of emotive language during sentencing remarks – where recommendation for post prison community based release amended to 12 months.

COUNSEL:

The appellant appeared on his own behalf.
B G Campbell for the respondent

SOLICITORS:

The appellant appeared on his own behalf.
Director of Public Prosecutions (Queensland) for the respondent

1. MCPHERSON JA:  I have read and I agree with the reasons of Williams JA.  I agree with the orders he proposes for disposing of the appeal and the application.

1. WILLIAMS JA:  The appellant, who appeared on his own behalf, was convicted on his own plea of:

(i)burglary – being in a dwelling house in the night with intent to commit an indictable offence in the dwelling;

(ii)assault occasioning bodily harm whilst armed with an offensive instrument namely a metal bar.

He was sentenced to 2 years imprisonment cumulative upon a 7 ½ month sentence already being served, and a recommendation was made that he be eligible to apply for post prison community based release after serving 15 ¾ months of the total sentence.  

1. The charges arose out of incidents which occurred on 10 March 2000.  Consequent upon the events which occurred that night the appellant was charged with the above offences and also:

(a)with an additional circumstance of aggravation to the assault charge that he was in company with other persons;

(b)armed robbery in company.

1. When called upon on 28 August 2001 he pleaded not guilty to the charges (a) and (b).  After a short adjournment the prosecution accepted the pleas of guilty noted above in full discharge of the indictment.

1. It appears that earlier attempts to have the indictment dealt with by the court had resulted in adjournments because of confusion as to…