R v Suthern - [1998] QCA 192

COURT OF APPEAL

[1998] QCA 192

de JERSEY CJ
HELMAN J
CHESTERMAN J

CA No 69 of 1998

THE QUEEN

JASON GRAHAM SUTHERN Applicant

BRISBANE

..DATE 17/06/98

JUDGMENT

HELMAN J: This is an application for leave to appeal against sentences which the applicant contends were manifestly excessive. The applicant came before the District Court at Maryborough on the morning of 16 February this year charged with seven counts: one of housebreaking with actual violence in company and armed with an offensive instrument, one of robbery, two of wilful damage to property, two of common assault, and two of assault occasioning bodily harm while armed with an offensive instrument and in company.

It was alleged that each offence was committed on 12 July 1997 at Maryborough. Two others were charged with the accused: his younger brother Derek and Angelo Pintus. All three pleaded not guilty to all counts. A jury was empanelled but soon afterwards the case was stood down until the afternoon. When the Court resumed the hearing of the case a request was made on behalf of each accused that he be arraigned again on all but the count of robbery. Each accused thereupon pleaded guilty to each of the remaining six counts. The Crown entered a nolle prosequi in relation to the count of robbery and the accused were all discharged on that count.

His Honour imposed sentences of imprisonment on the applicant: three years for housebreaking and three months for each other offence, all to be served concurrently. Derek Suthern was sentenced to concurrent terms of imprisonment: three years for housebreaking to be suspended after he had served six months with an operational period of four years, and three months for each other offence. Pintus was sentenced to a term of imprisonment: three years for housebreaking wholly suspended with an operational period of three years. It is not clear from the transcript of the proceedings that his Honour sentenced Pintus for the other offences, although the endorsement on the indictment, which is probably erroneous, shows sentences of imprisonment for three months in each case to be served concurrently with the sentence imposed for housebreaking.

On the day in question the three went to a flat occupied by three people to two of whom the applicant had sold marijuana for which payment was overdue. The object of the visit was to extract payment for the drug by force. The applicant and his two companions battered the front door of the flat in, damaging it, damaged another door and two bedroom lamps and assaulted all three occupants. The principal offender in relation to the common assaults was Derek Suthern. He did not strike the complainants, but in each case threatened to hit the complainant with a tomahawk. The applicant was the principal offender in relation to the assault occasioning bodily harm; he struck the complainant twice on the arm with a piece of plastic pipe about one metre long as the complainant shielded his head.

Nearly all of…

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 Suthern

Details

AGLC: R v Suthern [1998] QCA 192
Case: [1998] QCA 192
Decision Date: 17/06/1998

CaseChat Overview and Summary

The case before the Queensland Court of Appeal was an application for leave to appeal against sentences imposed by the District Court at Maryborough on Jason Graham Suthern. Suthern was convicted of six offences, including housebreaking with actual violence in company and armed with an offensive instrument, wilful damage to property, common assault, and assault occasioning bodily harm while armed with an offensive instrument and in company. The application for leave to appeal was based on the contention that the sentences were manifestly excessive. The applicant was sentenced to concurrent terms of imprisonment, with three years for housebreaking and three months for each of the other five offences.

The legal issues before the Court of Appeal were whether the sentences imposed on the applicant were manifestly excessive and whether the District Court had misapplied its discretion in sentencing. The applicant argued that his sentences were excessive because no parole eligibility date was ordered. The Court had to consider whether the District Court had taken into account all relevant factors in determining the sentences and whether it had appropriately balanced the purposes of sentencing, including community denunciation and deterrence.

The Court of Appeal found that the District Court had not misapplied its discretion in sentencing. The Court noted that the applicant was the instigator of the offences, had a more extensive criminal history than his co-offenders, and had struck a complainant with a plastic pipe during the assault occasioning bodily harm. The Court also noted that the District Court had taken into account the pleas of guilty in fixing the head sentence in each case and had allowed a substantial discount for the pleas of guilty. The Court concluded that there was no proper basis for concluding that the District Court's discretion miscarried in sentencing the applicant.

The Court of Appeal refused the application for leave to appeal against the sentences imposed by the District Court. The judges all agreed that the application should be refused.

Orders