R v Thompson - [2019] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thompson [2019] QCA 209

PARTIES:

R
v
THOMPSON, Kyle John
(applicant)

FILE NO/S:

CA No 339 of 2018
DC No 2435 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 16 November 2018 (Porter QC DCJ)

DELIVERED ON:

11 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2019

JUDGES:

Gotterson JA and Henry and Bradley JJ

ORDER:

Application for leave to appeal sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of grievous bodily harm – where the applicant was sentenced to three years and six months imprisonment, suspended after 14 months for an operational period of four years – where the applicant and an associate got into an altercation with the complainant in the Brisbane CBD – where the applicant punched the complainant in the jaw as the complainant attempted to walk away – where the applicant and his associate then ran away – where the learned sentencing judge found the applicant was the instigator of the violence and was unprovoked – where the learned sentencing judge found the applicant’s criminal history revealed a capacity to engage in violent conduct – where the learned sentencing judge considered the starting point for the applicant’s sentence was four years imprisonment and moderated the sentence by six months to take into account the time the applicant had spent in immigration detention and the impact of the applicant’s almost certain deportation to New Zealand – whether the sentence imposed was manifestly excessive

R v Bryan; Ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited
R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276, distinguished
R v Dietz[2009] QCA 392, distinguished
R v Grimley[2000] QCA 64, distinguished
R v Harvey[2003] QCA 286, distinguished
R v Katsidis[2003] QCA 82, distinguished
R v Stringer[2014] QCA 342, distinguished

COUNSEL:

M F Bonasia with C B Donnan for the applicant (pro bono)
S Cupina for the respondent

SOLICITORS:

Howden Saggers Lawyers for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: On 1 November 2018 in the District Court at Brisbane, the applicant, Kyle John Thompson, pleaded guilty to an offence against s 320 of the Criminal Code (Qld). The count on which he had been indicted alleged that on or about 9 December 2017 at Brisbane he and another male unlawfully did grievous bodily harm to the complainant, Craig Duncan Marshall.
The applicant was sentenced at a hearing on 16 November 2018. He was convicted and a term of three years and six months imprisonment was imposed. The term of imprisonment was suspended after 14 months for an operational period of four years.
On 13 December 2018, the applicant filed an application…

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 Thompson

Details

AGLC: R v Thompson [2019] QCA 209
Case: [2019] QCA 209
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the case of R v Thompson, the applicant appealed against the sentence imposed by the learned sentencing judge following a guilty plea to one count of grievous bodily harm. The sentence was three years and six months imprisonment, suspended after 14 months for an operational period of four years. The applicant had been involved in an altercation with the complainant in the Brisbane CBD, during which he punched the complainant in the jaw as the complainant attempted to walk away. The sentencing judge found the applicant was the instigator of the violence and was unprovoked. The judge also considered the applicant's criminal history, which indicated a propensity for violent conduct. The sentence was initially set at a starting point of four years imprisonment, but was moderated by six months to account for the applicant's time spent in immigration detention and the impact of his almost certain deportation to New Zealand.

The legal issue before the court was whether the sentence imposed was manifestly excessive. The applicant argued that the sentence was disproportionate, given his remorse and the fact that he had not been the primary aggressor. The prosecution contended that the sentence was appropriate, given the nature of the offence and the applicant's criminal history. The court had to determine whether the sentence imposed by the learned sentencing judge was manifestly excessive or inadequate, and whether there were any errors in the sentencing process that warranted interference.

The court found that the sentence imposed was not manifestly excessive. The court considered the nature and circumstances of the offence, the applicant's criminal history, and the principles of sentencing. The court found that the sentence was within the range of appropriate sentences for the offence and that the learned sentencing judge had properly considered the relevant factors. The court also found that there were no errors in the sentencing process that warranted interference. The court rejected the applicant's argument that the sentence was disproportionate, given his remorse and the fact that he had not been the primary aggressor. The court found that the applicant's criminal history and propensity for violent conduct warranted a sentence at the higher end of the range of appropriate sentences.

The application for leave to appeal the sentence was refused. The court found that the sentence imposed was not manifestly excessive and that there were no errors in the sentencing process that warranted interference. The sentence of three years and six months imprisonment, suspended after 14 months for an operational period of four years, was upheld.

Orders

Orders of the court

Application for leave to appeal sentence 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 Thompson [2019] QCA 209
PARTIES:	R v THOMPSON, Kyle John (applicant)
FILE NO/S:	CA No 339 of 2018 DC No 2435 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 16 November 2018 (Porter QC DCJ)
DELIVERED ON:	11 October 2019
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2019
JUDGES:	Gotterson JA and Henry and Bradley JJ
ORDER:	Application for leave to appeal sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of grievous bodily harm – where the applicant was sentenced to three years and six months imprisonment, suspended after 14 months for an operational period of four years – where the applicant and an associate got into an altercation with the complainant in the Brisbane CBD – where the applicant punched the complainant in the jaw as the complainant attempted to walk away – where the applicant and his associate then ran away – where the learned sentencing judge found the applicant was the instigator of the violence and was unprovoked – where the learned sentencing judge found the applicant’s criminal history revealed a capacity to engage in violent conduct – where the learned sentencing judge considered the starting point for the applicant’s sentence was four years imprisonment and moderated the sentence by six months to take into account the time the applicant had spent in immigration detention and the impact of the applicant’s almost certain deportation to New Zealand – whether the sentence imposed was manifestly excessive R v Bryan; Ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276, distinguished R v Dietz[2009] QCA 392, distinguished R v Grimley[2000] QCA 64, distinguished R v Harvey[2003] QCA 286, distinguished R v Katsidis[2003] QCA 82, distinguished R v Stringer[2014] QCA 342, distinguished
COUNSEL:	M F Bonasia with C B Donnan for the applicant (pro bono) S Cupina for the respondent
SOLICITORS:	Howden Saggers Lawyers for the applicant (pro bono) Director of Public Prosecutions (Queensland) for the respondent