R v Summers - [2004] QCA 275

SUPREME COURT OF QUEENSLAND

CITATION:

R v Summers; exparte A-G (Qld) [2004] QCA 275

PARTIES:

R
v
SUMMERS, Gavin George
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 131 of 2004
DC No 739 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2004

JUDGES:

McMurdo P, Williams JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Allow the appeal against sentence

2. Instead of the sentence of 12 months imprisonment substitute a sentence of three years imprisonment, to be served cumulatively upon the sentence the respondent was serving on 2 April 2004, with a recommendation that he be eligible to apply for post prison community based release on 6 October 2005

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where applicant convicted after trial of one count of assault occasioning bodily harm whilst armed with an offensive instrument – where sustained assault against de facto wife involved threatening her with a tyre lever, hitting her in the head with a hammer and squeezing her throat – where respondent on weekend release from prison when offence committed – where respondent was serving term of imprisonment for very similar offence against his previous de facto wife – where sentenced to 12 months imprisonment for this offence – whether sentence imposed was manifestly inadequate – whether sentence should have been made cumulative

Penalties and Sentences Act 1992 (Qld), s 156A, s 157(3)

R v Bell [2000] QCA 485; CA No 235 of 2000, 23 November 2000, considered
R v C [2000] QCA 154 CA No 34 of 2000, 3 May 2000, considered
R v Hadland, [2000] QCA 182; CA No 368 of 1999, 16 May 2000, considered

COUNSEL:

B G Campbell for the appellant
B G Devereaux for the respondent

SOLICITORS:

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

THE PRESIDENT: The respondent pleaded not guilty to one count of assault and one count of torture, alternatively assault occasioning bodily harm whilst armed with an offensive instrument on 1 April 2004. A nolle prosequi was entered at the close of the Crown case on the assault charge. He was convicted only of the alternate count of assault occasioning bodily harm whilst armed with an offensive instrument. The jury were unable to agree on a verdict on the torture charge. The prosecution accepted the guilty verdict in full discharge of the indictment. Summers was sentenced to 12 months imprisonment. The appellant, the Attorney-General of Queensland, contends that the sentence was manifestly inadequate.

The maximum penalty was 10 years imprisonment.

Mr Summers…

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 Summers

Details

AGLC: R v Summers [2004] QCA 275
Case: [2004] QCA 275
Decision Date: 3 August 2004

CaseChat Overview and Summary

In this case, the Attorney-General for the Commonwealth of Australia, as the appellant, sought to appeal against the sentence imposed on the respondent, Summers, by the Supreme Court of the Australian Capital Territory. Summers was convicted of assault occasioning bodily harm while armed with an offensive weapon. The attack involved threatening his de facto wife with a tyre lever, striking her with a hammer, and choking her. At the time of the offence, Summers was on weekend release from prison where he was serving a sentence for a similar offence against his previous de facto wife. For the recent offence, the Supreme Court sentenced him to 12 months imprisonment. The appeal challenged the adequacy of this sentence.

The appeal raised two primary legal issues: first, whether the sentence imposed by the Supreme Court was manifestly inadequate; and second, whether the sentence should have been cumulative, considering Summers' prior imprisonment. The Attorney-General argued that the sentence was manifestly inadequate and should have taken into account the cumulative nature of Summers' criminal history and the severity of the offence. The defence contended that the sentence was appropriate, considering the mitigating factors and the rehabilitative prospects of Summers.

The court held that the sentence imposed was manifestly inadequate. It found that the Supreme Court did not adequately consider the cumulative nature of the sentence in light of Summers' ongoing imprisonment for a similar offence. The court noted the seriousness of the assault, the use of an offensive weapon, and Summers' history of violence against intimate partners. The appeal was allowed, and the sentence was substituted to three years imprisonment, to be served cumulatively with his existing sentence. The court recommended that Summers be eligible to apply for post-prison community-based release on 6 October 2005.

Orders

Orders of the court

1. Allow the appeal against sentence

2. Instead of the sentence of 12 months imprisonment substitute a sentence of three years imprisonment, to be served cumulatively upon the sentence the respondent was serving on 2 April 2004, with a recommendation that he be eligible to apply for post prison community based release on 6 October 2005

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 Summers; exparte A-G (Qld) [2004] QCA 275
PARTIES:	R v SUMMERS, Gavin George (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 131 of 2004 DC No 739 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	3 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2004
JUDGES:	McMurdo P, Williams JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Allow the appeal against sentence 2. Instead of the sentence of 12 months imprisonment substitute a sentence of three years imprisonment, to be served cumulatively upon the sentence the respondent was serving on 2 April 2004, with a recommendation that he be eligible to apply for post prison community based release on 6 October 2005
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where applicant convicted after trial of one count of assault occasioning bodily harm whilst armed with an offensive instrument – where sustained assault against de facto wife involved threatening her with a tyre lever, hitting her in the head with a hammer and squeezing her throat – where respondent on weekend release from prison when offence committed – where respondent was serving term of imprisonment for very similar offence against his previous de facto wife – where sentenced to 12 months imprisonment for this offence – whether sentence imposed was manifestly inadequate – whether sentence should have been made cumulative Penalties and Sentences Act 1992 (Qld), s 156A, s 157(3) R v Bell [2000] QCA 485; CA No 235 of 2000, 23 November 2000, considered R v C [2000] QCA 154 CA No 34 of 2000, 3 May 2000, considered R v Hadland, [2000] QCA 182; CA No 368 of 1999, 16 May 2000, considered
COUNSEL:	B G Campbell for the appellant B G Devereaux for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent