R v. Soffy - [2008] QCA 129

SUPREME COURT OF QUEENSLAND

CITATION:

R v Soffy [2008] QCA 129

PARTIES:

R
v
SOFFY, Mouze William
(applicant)

FILE NO/S:

CA No 337 of 2007
DC No 3117 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2008

JUDGES:

de Jersey CJ, Fraser JA and Mackenzie AJA
Judgment of the Court

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATIONS TO REDUCE SENTENCE – Where the applicant was convicted following a trial of one count of aggravated stalking, one count of assault occasioning bodily harm and one count of unlawful assault – Where the stalking involved both the use and threat of violence in the presence of a child – Where the applicant was motivated by a desire to control the complainant – Where there was an absence of remorse – Where the applicant was sentenced to two years imprisonment with parole fixed after 12 months – Where the applicant contends that the trial judge should not have relied on some of the complainant’s uncorroborated evidence – Whether the sentence could reasonably be said to have been manifestly excessive

Evidence Act 1977 (Qld), s 132C
Criminal Code 1899 (Qld), s 624

Cheung v R (2001) 209 CLR 1, cited
R v Layfield[2003] QCA 3, cited

COUNSEL:

E P Mac Giolla Ri for the applicant (pro bono)
M J Copley for the respondent

SOLICITORS:

Ryan & Bosscher for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The applicant seeks leave to appeal against sentences imposed upon him following his conviction by a jury of three offences. Count 1 was of aggravated stalking of his estranged wife, Ms Mandara, between 6 July and 2 November 2005, for which he was sentenced to two years imprisonment. He had spent three days in pre-sentence custody, which was the subject of a declaration. He was sentenced on 13 November 2007, and the learned Judge fixed a parole release date of 10 November 2008. The applicant was also convicted of assault occasioning bodily harm, committed upon Ms Mandara on 7 July 2005 (count 2), for which he was sentenced to 12 months imprisonment to be served concurrently; and unlawfully assaulting her on 17 July 2005 (count 4), for which he was imprisoned for four months concurrently. In respect of the last matter, he had been charged with assault occasioning bodily harm while armed (with a pair of scissors), and the jury convicted on the alternate lesser charge. He was acquitted of assault occasioning bodily harm to his son, G, allegedly committed on 7 July 2005.

The prosecution relied on seven acts of stalking. It fell to the Judge to determine which were established. The requisite standard of proof is set out in s 132C of the Evidence Act 1977 (Qld), that is, on…

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. Soffy

Details

AGLC: R v Soffy [2008] QCA 129
Case: [2008] QCA 129
Decision Date: 30 May 2008

CaseChat Overview and Summary

The case of R v. Soffy involved the applicant appealing against their sentence following a conviction for aggravated stalking, assault occasioning bodily harm, and unlawful assault. The stalking involved both the use and threat of violence in the presence of a child, and the applicant's motivation was to control the complainant. The applicant was sentenced to two years imprisonment with parole eligibility after 12 months. The applicant argued that the trial judge should not have relied on some of the complainant's uncorroborated evidence and that the sentence was manifestly excessive.

The legal issues before the court were whether the trial judge erred in relying on uncorroborated evidence and if the sentence was manifestly excessive. The applicant argued that the judge's reliance on uncorroborated evidence was inappropriate, and the sentence was disproportionately harsh given the circumstances. The court considered the principles of sentencing and the appropriate weight to give to uncorroborated evidence in such cases.

The court found that the trial judge did not err in considering the uncorroborated evidence, as it was relevant and probative of the applicant's guilt. The court also determined that the sentence was not manifestly excessive, as it took into account the seriousness of the offences, the need for deterrence, and the protection of the community. The court concluded that the sentence was proportionate and appropriate in the circumstances.

The court refused the application to reduce the sentence. The court found that the trial judge's reliance on the uncorroborated evidence was appropriate and that the sentence was not manifestly excessive. The applicant's appeal against sentence was dismissed.

Orders

Orders of the court

Application 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 Soffy [2008] QCA 129
PARTIES:	R v SOFFY, Mouze William (applicant)
FILE NO/S:	CA No 337 of 2007 DC No 3117 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 May 2008
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2008
JUDGES:	de Jersey CJ, Fraser JA and Mackenzie AJA Judgment of the Court
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATIONS TO REDUCE SENTENCE – Where the applicant was convicted following a trial of one count of aggravated stalking, one count of assault occasioning bodily harm and one count of unlawful assault – Where the stalking involved both the use and threat of violence in the presence of a child – Where the applicant was motivated by a desire to control the complainant – Where there was an absence of remorse – Where the applicant was sentenced to two years imprisonment with parole fixed after 12 months – Where the applicant contends that the trial judge should not have relied on some of the complainant’s uncorroborated evidence – Whether the sentence could reasonably be said to have been manifestly excessive Evidence Act 1977 (Qld), s 132C Criminal Code 1899 (Qld), s 624 Cheung v R (2001) 209 CLR 1, cited R v Layfield[2003] QCA 3, cited
COUNSEL:	E P Mac Giolla Ri for the applicant (pro bono) M J Copley for the respondent
SOLICITORS:	Ryan & Bosscher for the applicant Director of Public Prosecutions (Queensland) for the respondent