R v Rowe - [2011] QCA 372

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rowe [2011] QCA 372

PARTIES:

R
v
ROWE, Duane Raymond John
(applicant)

FILE NO/S:

CA No 241 of 2011
DC No 277 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

16 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2011

JUDGES:

Fraser and Chesterman JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to stalking with violence, burglary with violence, assault occasioning bodily harm, common assault, and wilful damage – where the complainant was his former partner – where the offences were committed while the applicant was on parole for offences of violence for which he had been sentenced to three years’ imprisonment, but given parole after serving 12 months – where he was returned to custody on being charged with the stalking and related offences after being in the community for 11 months – where sentence imposed for stalking was three years cumulative on the existing sentence with a parole eligibility date set 12 months into the cumulative sentence – whether the sentence of three years’ imprisonment for the stalking offence that was cumulative on the existing term of imprisonment was manifestly excessive – whether setting the parole eligibility date after 12 months of the cumulative sentence had been served made the sentence manifestly excessive

R v AN [2003] QCA 349, considered
R v Keong [2007] QCA 163, considered
R v Kitson [2008] QCA 86, considered
R v Kofoed[2005] QCA 438, considered
R v Macdonald [2008] QCA 384, considered
R v Matue [2009] QCA 216, considered
R v Soffy[2008] QCA 129, considered

COUNSEL:

J J Allen, with J Lodziak, for the applicant
J A Wooldridge for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Mullins J and the order proposed by her Honour.

CHESTERMAN JA: I agree that the application for leave to appeal against sentence should be refused for the reasons given by Mullins J.

MULLINS J: The applicant pleaded guilty to five offences arising out of events on 21 and 22 November 2010 involving his former partner. He was sentenced to three years’ imprisonment for unlawful stalking, with violence (count 1), two years’ imprisonment for each of burglary with violence (count 2) and assault occasioning bodily harm (count 3), and 12 months’ imprisonment for each of common assault (count 4) and wilful damage (count 5). Each sentence was concurrent with the other sentences. The effective term of three years’ imprisonment was ordered to be cumulative on the applicant’s current term of imprisonment…

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 Rowe

Details

AGLC: R v Rowe [2011] QCA 372
Case: [2011] QCA 372
Decision Date: 16 December 2011

CaseChat Overview and Summary

The applicant, who had pleaded guilty to stalking with violence, burglary with violence, assault occasioning bodily harm, common assault, and wilful damage, was sentenced in the County Court. The complainant was the applicant's former partner, and the offences were committed while the applicant was on parole for previous offences of violence. The applicant had served 12 months of a three-year sentence for the earlier offences before being granted parole, but was returned to custody after committing the new offences after 11 months in the community. For the stalking offence, a sentence of three years’ imprisonment was imposed, to run cumulatively with the existing sentence, with parole eligibility set 12 months into the new sentence.

The legal issues before the court were whether the three-year sentence for the stalking offence, running cumulatively with the existing sentence, was manifestly excessive, and whether setting the parole eligibility date after 12 months of the cumulative sentence had been served made the sentence manifestly excessive. The applicant argued that the cumulative sentencing made the punishment excessively severe and that the parole eligibility date was set too late, rendering the sentence manifestly excessive.

The court found that the sentence for the stalking offence, running cumulatively with the existing sentence, was not manifestly excessive. The court considered the seriousness of the stalking offence, the applicant’s history of violence, and the need for general deterrence. The court also found that the parole eligibility date did not make the sentence manifestly excessive, as it was set at a reasonable point in the cumulative sentence, allowing for consideration of the applicant’s behaviour while serving the sentence. The application for leave to appeal against sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence 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 Rowe [2011] QCA 372
PARTIES:	R v ROWE, Duane Raymond John (applicant)
FILE NO/S:	CA No 241 of 2011 DC No 277 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	16 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2011
JUDGES:	Fraser and Chesterman JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDERS:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to stalking with violence, burglary with violence, assault occasioning bodily harm, common assault, and wilful damage – where the complainant was his former partner – where the offences were committed while the applicant was on parole for offences of violence for which he had been sentenced to three years’ imprisonment, but given parole after serving 12 months – where he was returned to custody on being charged with the stalking and related offences after being in the community for 11 months – where sentence imposed for stalking was three years cumulative on the existing sentence with a parole eligibility date set 12 months into the cumulative sentence – whether the sentence of three years’ imprisonment for the stalking offence that was cumulative on the existing term of imprisonment was manifestly excessive – whether setting the parole eligibility date after 12 months of the cumulative sentence had been served made the sentence manifestly excessive R v AN [2003] QCA 349, considered R v Keong [2007] QCA 163, considered R v Kitson [2008] QCA 86, considered R v Kofoed[2005] QCA 438, considered R v Macdonald [2008] QCA 384, considered R v Matue [2009] QCA 216, considered R v Soffy[2008] QCA 129, considered
COUNSEL:	J J Allen, with J Lodziak, for the applicant J A Wooldridge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent