R v Sanders - [2007] QCA 165

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sanders [2007] QCA 165

PARTIES:

R
v
SANDERS, Michael Glen
(applicant/appellant)

FILE NO/S:

CA No 58 of 2007
DC No 3602 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2007

JUDGES:

McMurdo P, Jerrard JA and Philippides J
Judgment of the Court

ORDER:

1.   Application for leave to appeal granted

2.   Appeal allowed

3.   Sentence varied by deleting the order that a conviction be recorded and in lieu ordering that a conviction not be recorded

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant was sentenced on a plea of guilty to assault occasioning bodily harm to probation and community service – where conviction was recorded – where applicant sought leave to appeal against sentence on the ground that sentence imposed was manifestly excessive because a conviction was recorded – where trial judge failed to permit a letter of remorse from the applicant to be tendered as an exhibit – where sentencing judge misstated the child complainant’s age in the sentencing remarks – where a discretion under s 12 of the Penalties and Sentences Act 1992 (Qld) to record a conviction was reexercised – consideration of principles applicable to exercise of discretion under s 12 of the Penalties and Sentences Act 1992 (Qld)

Penalties and Sentences Act 1992 (Qld), s 12

R v Bain [1997] QCA 035, CA No 452 of 1996, 14 March 1997, cited
R v Briese; ex parte Attorney-General [1998] 1 Qd R 487, cited
R v Brown; ex parte Attorney-General [1994] 2 Qd R 182, cited
R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467, CA No 241 and 243 of 2005, 14 December 2005, cited
R v Ndizeye [2006] QCA 537, CA No 286 of 2006,
15 December 2006, cited

COUNSEL:

Mr R A East for the applicant/appellant
Mr M R Byrne for the respondent

SOLICITORS:

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

THE COURT: Michael Glen Sanders pleaded guilty to one count of assault occasioning bodily harm in company on 17 February 2006. He was sentenced to two years’ probation and 40 hours’ community service and ordered to pay $462.07 compensation. A conviction was recorded. His 13 year old juvenile co‑offender, M, was sentenced to 40 hours’ community service by the Children’s Court.

The applicant seeks leave to appeal against the sentence imposed on the basis that the recording of a conviction was manifestly excessive.

The applicant was 17 years of age at the time of the offence and 18 years at the time of sentence. At the time of the offence, the applicant…

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 Sanders

Details

AGLC: R v Sanders [2007] QCA 165
Case: [2007] QCA 165
Decision Date: 25 May 2007

CaseChat Overview and Summary

The applicant, Sanders, was sentenced for assault occasioning bodily harm to a child. The District Court of Queensland convicted and sentenced him on a plea of guilty, ordering a conviction be recorded. Sanders sought leave to appeal the sentence on the grounds it was manifestly excessive and that the trial judge failed to consider a letter of remorse, and the sentencing judge misstated the child's age. The application for leave to appeal was granted, focusing on the discretion under section 12 of the Penalties and Sentences Act 1992 (Qld).

The court needed to determine whether the sentence was manifestly excessive and whether procedural errors affected the fairness of the sentencing process. The key issues were the trial judge's failure to consider the letter of remorse and the misstatement of the child's age by the sentencing judge. The court also had to consider the exercise of discretion under section 12 of the Penalties and Sentences Act 1992 (Qld) regarding the recording of a conviction.

The court found that the sentence was manifestly excessive because it was disproportionate to the offence, particularly considering the applicant's plea of guilty and the absence of any prior convictions. The failure to consider the letter of remorse and the misstatement of the child's age were significant procedural errors that affected the fairness of the sentencing process. The court concluded that the exercise of discretion under section 12 of the Penalties and Sentences Act 1992 (Qld) was flawed. Consequently, the application for leave to appeal was granted, the appeal was allowed, and the sentence was varied by deleting the order that a conviction be recorded and in lieu ordering that a conviction not be recorded.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal allowed

3. Sentence varied by deleting the order that a conviction be recorded and in lieu ordering that a conviction not be recorded

Background

Background to the litigation

Full text does not contain this section.

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 Sanders [2007] QCA 165
PARTIES:	R v SANDERS, Michael Glen (applicant/appellant)
FILE NO/S:	CA No 58 of 2007 DC No 3602 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	18 May 2007
JUDGES:	McMurdo P, Jerrard JA and Philippides J Judgment of the Court
ORDER:	1. Application for leave to appeal granted 2. Appeal allowed 3. Sentence varied by deleting the order that a conviction be recorded and in lieu ordering that a conviction not be recorded
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant was sentenced on a plea of guilty to assault occasioning bodily harm to probation and community service – where conviction was recorded – where applicant sought leave to appeal against sentence on the ground that sentence imposed was manifestly excessive because a conviction was recorded – where trial judge failed to permit a letter of remorse from the applicant to be tendered as an exhibit – where sentencing judge misstated the child complainant’s age in the sentencing remarks – where a discretion under s 12 of the Penalties and Sentences Act 1992 (Qld) to record a conviction was reexercised – consideration of principles applicable to exercise of discretion under s 12 of the Penalties and Sentences Act 1992 (Qld) Penalties and Sentences Act 1992 (Qld), s 12 R v Bain [1997] QCA 035, CA No 452 of 1996, 14 March 1997, cited R v Briese; ex parte Attorney-General [1998] 1 Qd R 487, cited R v Brown; ex parte Attorney-General [1994] 2 Qd R 182, cited R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467, CA No 241 and 243 of 2005, 14 December 2005, cited R v Ndizeye [2006] QCA 537, CA No 286 of 2006, 15 December 2006, cited
COUNSEL:	Mr R A East for the applicant/appellant Mr M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent