R v Tom

[2018] QCA 218

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tom [2018] QCA 218

PARTIES:

R
v
TOM, Kennedy William
(applicant)

FILE NO/S:

CA No 230 of 2017
DC No 471 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 6 September 2017 (Harrison DCJ)

DELIVERED ON:

18 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2018

JUDGES:

Philippides JA and Boddice and Bond JJ

ORDERS:

The orders of the Court are that:

1.    The application for leave to appeal is granted.

2.    The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawfully doing grievous bodily harm, assault occasioning bodily harm, common assault, and two counts of wilful and unlawful damage to a motor vehicle – where the applicant was sentenced to a head sentence of 5 years imprisonment on the most serious offence with all terms of imprisonment on the other offences to be served concurrently – where the applicant sought leave to appeal from his sentence on the ground that it was manifestly excessive – whether the learned sentencing judge erred in failing to take account of “extra-curial” punishment in the form of injuries sustained by the applicant in the course of offending – whether the learned sentencing judge sentenced on the basis of a misapprehension of the mechanism by which the complainant had broken her leg in the course of the applicant’s offending – whether the learned sentencing judge erred in proceeding on assumptions concerning the applicant’s alcohol use and its connection with his offending – whether, pursuant to s 668E(3) of the Criminal Code 1899 (Qld), some other sentence is warranted in law and should have been passed

Criminal Code 1899 (Qld), s 668E(3)

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, applied
R v Brand[2006] QCA 525, applied
R v Bowditch[2014] QCA 157, applied
R v Bryan; ex-parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, applied
R v Hannigan [2009] 2 Qd R 331; [2009] QCA 40, cited
R v HBA[2010] QCA 306, cited

COUNSEL:

J Crawford for the applicant (pro bono)
S Cupina for the respondent

SOLICITORS:

No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. PHILIPPIDES JA:  I agree with the orders proposed by Bond J for the reasons given by his Honour.

2. BODDICE J:  I agree with Bond J.

3. BOND J:  On 6 September 2017, the applicant was convicted in the District Court on his own plea of guilty of five offences committed by him on 9 October 2016, for which he was sentenced as follows:

   (a)Grievous bodily harm to Louise Clare Hesketh: 5 years imprisonment;

   (b)Assault occasioning bodily harm to Brandon James Steffensen: 2½…