R v. Spann - [2008] QCA 279

SUPREME COURT OF QUEENSLAND

CITATION:

R v Spann [2008] QCA 279

PARTIES:

R
v
SPANN, Tatum Clare
(applicant)

FILE NO/S:

CA No 15 of 2008
DC No 241 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

12 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2008

JUDGES:

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

ORDER:

Application refused

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 REFUSED – GENERALLY – applicant convicted on guilty pleas to one count of serious assault, two counts of unlawful use of a motor vehicle, one count of stealing, and one count of receiving stolen property with a circumstance of aggravation – applicant sentenced to concurrent sentences of three years imprisonment for serious assault, six months imprisonment for each count of unlawful use of a motor vehicle and receiving, 14 days imprisonment for stealing, with convictions recorded for all counts, a declaration of 538 days of pre-sentence custody, and a fixed parole release date set at the day of sentence – applicant seeks leave to appeal the sentence imposed for serious assault – whether sentencing judge erred in findings made – whether sentencing judge sentenced applicant on an erroneous basis – whether sentencing judge failed to give sufficient regard to matters of mitigation and motivation – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 340(1)(b)

R v Cottam; ex parte A-G (Qld)[2004] QCA 351, distinguished
R v Holden [2006] QCA 416, distinguished
R v Juric [2003] QCA 132, distinguished
R v Marshall [1993] 2 Qd R 307; [1992] QCA 155, distinguished
R v Taylor [2004] QCA 447, distinguished
R v Wilkinson [1999] QCA 090, distinguished

COUNSEL:

C J Eberhardt for the applicant
A J Edwards for the respondent

SOLICITORS:

Robertson O’Gorman Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree with the reasons of Philippides J and with the order she proposes.

FRASER JA: I agree with the order proposed by Philippides J and with her Honour’s reasons for that order.

PHILIPPIDES J: The applicant was convicted on her plea to one count of serious assault in the form of a charge that on 24 June 2006 at Gold Coast she wilfully obstructed Gabriel Jose, a police officer while acting in the execution of his duty. She also pleaded to two counts of unlawful use of a motor vehicle, one count of stealing and one count of receiving stolen property with a circumstance of aggravation. In relation to the serious assault offence, a sentence of three years imprisonment was imposed. In relation to each of the counts of unlawful use of a motor vehicle and the count of receiving,…

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. Spann

Details

AGLC: R v Spann [2008] QCA 279
Case: [2008] QCA 279
Decision Date: 12 September 2008

CaseChat Overview and Summary

The appeal in the matter of R v. Spann was heard by the court in which the applicant, convicted on multiple counts including serious assault, unlawful use of a motor vehicle, stealing, and receiving stolen property, sought leave to appeal against the sentence imposed for the serious assault charge. The applicant contended that the sentencing judge had erred in certain findings, imposed the sentence on an incorrect basis, failed to give adequate consideration to mitigating factors and motivation, and that the sentence was manifestly excessive. The primary issue before the court was whether the applicant's appeal against the sentence for serious assault should be allowed.

In addressing the appeal, the court examined the grounds put forward by the applicant. It considered whether the sentencing judge's findings were erroneous, whether the sentence was based on incorrect principles, and if sufficient regard was given to mitigating factors. The court also assessed if the sentence was manifestly excessive. After a thorough review of the sentencing process and the arguments presented, the court found that the sentencing judge had not erred in any significant way. The court was satisfied that the sentence was proportionate and that all relevant factors had been appropriately considered. Consequently, the appeal against the sentence was dismissed.

The court ultimately concluded that the applicant's arguments did not establish a basis for allowing the appeal. It found no merit in the contentions that the sentence was imposed on an erroneous basis or that it failed to consider mitigating factors adequately. The court also held that the sentence was not manifestly excessive in the circumstances of the case. Therefore, the application for leave to appeal was refused, and the original sentence stood affirmed.

Orders

Orders of the court

Application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Spann [2008] QCA 279
PARTIES:	R v SPANN, Tatum Clare (applicant)
FILE NO/S:	CA No 15 of 2008 DC No 241 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	12 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2008
JUDGES:	Muir and Fraser JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
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 REFUSED – GENERALLY – applicant convicted on guilty pleas to one count of serious assault, two counts of unlawful use of a motor vehicle, one count of stealing, and one count of receiving stolen property with a circumstance of aggravation – applicant sentenced to concurrent sentences of three years imprisonment for serious assault, six months imprisonment for each count of unlawful use of a motor vehicle and receiving, 14 days imprisonment for stealing, with convictions recorded for all counts, a declaration of 538 days of pre-sentence custody, and a fixed parole release date set at the day of sentence – applicant seeks leave to appeal the sentence imposed for serious assault – whether sentencing judge erred in findings made – whether sentencing judge sentenced applicant on an erroneous basis – whether sentencing judge failed to give sufficient regard to matters of mitigation and motivation – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 340(1)(b) R v Cottam; ex parte A-G (Qld)[2004] QCA 351, distinguished R v Holden [2006] QCA 416, distinguished R v Juric [2003] QCA 132, distinguished R v Marshall [1993] 2 Qd R 307; [1992] QCA 155, distinguished R v Taylor [2004] QCA 447, distinguished R v Wilkinson [1999] QCA 090, distinguished
COUNSEL:	C J Eberhardt for the applicant A J Edwards for the respondent
SOLICITORS:	Robertson O’Gorman Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent