R v Potter - [2019] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

R v Potter [2019] QCA 162

PARTIES:

R
v
POTTER, William Thomas
(applicant)

FILE NO/S:

CA No 199 of 2019
DC No 59 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Warwick – Date of Sentence: 30 July 2019 (Reid DCJ)

DELIVERED ON:

23 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2019

JUDGES:

Holmes CJ and Gotterson JA and Flanagan J

ORDERS:

1.   The application for leave to appeal against the sentences imposed on counts 1 and 3 is allowed.

2.   The sentences of imprisonment imposed in respect of counts 1 and 3 are varied as follows:

a)   on count 1 the applicant is sentenced to three months imprisonment;

b)   on count 3 the applicant is sentenced to four months imprisonment.

3.   The application for leave to appeal against the sentence imposed on count 2 is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted of one count of dangerous driving, one count of assault occasioning bodily harm while armed, and one count of common assault – where the convictions for dangerous driving and occasioning bodily harm while armed were charged as domestic violence offences – where the applicant was sentenced to 18 months imprisonment on the dangerous driving count with six month’s licence disqualification, three years imprisonment on the occasioning bodily harm while armed charge, and 12 months imprisonment on the common assault charge – where the applicant was fixed a parole release date four months after the date of conviction and sentence – where the applicant seeks leave to appeal against his sentences on the basis that they were manifestly excessive, both as to head sentence and the imposition of a period of actual custody – where the applicant argues that the sentencing judge had insufficient regard to the applicant’s youth, his prospects of rehabilitation, and the complainant’s desire that the applicant not go to jail – whether the sentences imposed at first instance were manifestly excessive – whether the imposition of a period of actual custody renders the sentence more excessive than is appropriate in all of the circumstances

R v Kelley[2018] QCA 18, considered
R v Nielsen[2006] QCA 2, considered
R v Price[1992] QCA 229, considered
R v Rowlands[2019] QCA 112, considered
R v Theuerkauf & Theuerkauf; Ex parte Attorney-General (Qld)[2003] QCA 94, considered

COUNSEL:

S Kissick for the applicant
D Nardone for the respondent

SOLICITORS:

Lilley Spanner & Stacey for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: The applicant for leave for appeal was convicted of one count of dangerous driving and one count of assault occasioning bodily harm while armed, both charged as domestic violence offences, and a further count of common assault. He was sentenced to concurrent sentences of: 18 months imprisonment on count 1, the dangerous…

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 Potter

Details

AGLC: R v Potter [2019] QCA 162
Case: [2019] QCA 162
Decision Date: 23 August 2019

CaseChat Overview and Summary

The applicant, Potter, appealed against his sentences following convictions for dangerous driving, assault occasioning bodily harm while armed, and common assault. The appeal was heard by the court which had to decide whether the sentences were manifestly excessive and if the imposition of actual custody was justified. The applicant argued that his youth, rehabilitation prospects, and the complainant's wishes should have influenced the sentencing judge's decision. The court had to examine the proportionality of the sentences, taking into account the nature of the offences and the circumstances surrounding them.

The court found that the sentences for the dangerous driving and common assault charges were manifestly excessive. The sentencing judge did not adequately consider the applicant's youth and potential for rehabilitation, nor did the judge fully weigh the complainant's wishes against the need for punishment. However, the court determined that the sentence for the assault occasioning bodily harm while armed was appropriate given the seriousness of the offence and the need to protect the public. Consequently, the court allowed the appeal against the sentences for counts 1 and 3, varying them to three months and four months imprisonment respectively. The appeal against the sentence for count 2 was dismissed.

The final orders of the court were that the application for leave to appeal against the sentences for counts 1 and 3 was granted, with those sentences reduced to three and four months imprisonment. The application for leave to appeal against the sentence for count 2 was denied, leaving that sentence unchanged. This decision balanced the need for appropriate punishment with the factors that should have been considered by the original sentencing judge.

Orders

Orders of the court

1. The application for leave to appeal against the sentences imposed on counts 1 and 3 is allowed.

2. The sentences of imprisonment imposed in respect of counts 1 and 3 are varied as follows:

a) on count 1 the applicant is sentenced to three months imprisonment;

b) on count 3 the applicant is sentenced to four months imprisonment.

3. The application for leave to appeal against the sentence imposed on count 2 is refused.

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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CITATION:	R v Potter [2019] QCA 162
PARTIES:	R v POTTER, William Thomas (applicant)
FILE NO/S:	CA No 199 of 2019 DC No 59 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Warwick – Date of Sentence: 30 July 2019 (Reid DCJ)
DELIVERED ON:	23 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2019
JUDGES:	Holmes CJ and Gotterson JA and Flanagan J
ORDERS:	1. The application for leave to appeal against the sentences imposed on counts 1 and 3 is allowed. 2. The sentences of imprisonment imposed in respect of counts 1 and 3 are varied as follows: a) on count 1 the applicant is sentenced to three months imprisonment; b) on count 3 the applicant is sentenced to four months imprisonment. 3. The application for leave to appeal against the sentence imposed on count 2 is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted of one count of dangerous driving, one count of assault occasioning bodily harm while armed, and one count of common assault – where the convictions for dangerous driving and occasioning bodily harm while armed were charged as domestic violence offences – where the applicant was sentenced to 18 months imprisonment on the dangerous driving count with six month’s licence disqualification, three years imprisonment on the occasioning bodily harm while armed charge, and 12 months imprisonment on the common assault charge – where the applicant was fixed a parole release date four months after the date of conviction and sentence – where the applicant seeks leave to appeal against his sentences on the basis that they were manifestly excessive, both as to head sentence and the imposition of a period of actual custody – where the applicant argues that the sentencing judge had insufficient regard to the applicant’s youth, his prospects of rehabilitation, and the complainant’s desire that the applicant not go to jail – whether the sentences imposed at first instance were manifestly excessive – whether the imposition of a period of actual custody renders the sentence more excessive than is appropriate in all of the circumstances R v Kelley[2018] QCA 18, considered R v Nielsen[2006] QCA 2, considered R v Price[1992] QCA 229, considered R v Rowlands[2019] QCA 112, considered R v Theuerkauf & Theuerkauf; Ex parte Attorney-General (Qld)[2003] QCA 94, considered
COUNSEL:	S Kissick for the applicant D Nardone for the respondent
SOLICITORS:	Lilley Spanner & Stacey for the applicant Director of Public Prosecutions (Queensland) for the respondent