R v Verheyen - [2008] QCA 150

SUPREME COURT OF QUEENSLAND

CITATION:

R v Verheyen [2008] QCA 150

PARTIES:

R
v
VERHEYEN, Brendan
(applicant)

FILE NO/S:

CA No 311 of 2007
DC No 715 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

13 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2008

JUDGES:

Fraser JA, Philippides and Daubney JJ
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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where the applicant was convicted on his plea of guilty of one count of causing grievous bodily harm – where there was a contested sentence hearing – where the applicant was sentenced to three years imprisonment with a parole release date after serving 12 months – where there was some inconsistent evidence – where the sentencing judge applied the appropriate standard of proof required by
s 132C(4) of the Evidence Act 1977 (Qld) – where the applicant alleged that the sentence was manifestly excessive and that the sentencing judge erred in the findings of fact – whether the sentencing judge was unaware of or did not take into account the inconsistencies – whether the sentence was manifestly excessive

Evidence Act 1977 (Qld), s 132C(4)

R v Tupou; ex parte A-G (Qld)[2005] QCA 179, considered

COUNSEL:

The applicant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: On 17 October 2007 the applicant was convicted on his plea of guilty of one count of causing grievous bodily harm. After a hearing to resolve contested facts relevant to sentence, on 18 October 2007 the applicant was sentenced to three years imprisonment with a parole release date of 16 October 2008 (after serving 12 months).

The applicant seeks leave to appeal against sentence on the grounds that it was manifestly excessive and that the sentencing judge erred in the findings of fact.

Disputed circumstances of the offence

The complainant, Mr Lamont, and his wife managed a motel in Cairns. At around 4.00 am on 8 November 2005 the complainant's wife heard loud screaming and yelling from the applicant and his girlfriend, who were running inside their unit as well as around the motel and disturbing other guests. After Mrs Lamont unsuccessfully asked the pair to quieten down she telephoned police and woke her husband.

Mr and Mrs Lamont approached the unit where the screaming and crashing sounds still continued. A short time after they entered the room the applicant assaulted

Mr Lamont.

Mr Lamont's evidence was that he walked into the motel unit past the defendant, who was standing near the door and…

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 Verheyen

Details

AGLC: R v Verheyen [2008] QCA 150
Case: [2008] QCA 150
Decision Date: 13 June 2008

CaseChat Overview and Summary

In the case of R v Verheyen, the applicant was convicted of causing grievous bodily harm after pleading guilty. Following a contested sentencing hearing, the applicant was sentenced to three years imprisonment, with a parole release date after serving 12 months. The applicant appealed against the sentence, arguing that it was manifestly excessive and that the sentencing judge had failed to consider certain inconsistencies in the evidence. The appeal focused on whether the sentencing judge was unaware of or did not take into account the inconsistencies and whether the sentence imposed was manifestly excessive.

The court examined the evidence presented during the sentencing hearing and considered the inconsistencies. The court noted that the sentencing judge had applied the appropriate standard of proof required by section 132C(4) of the Evidence Act 1977 (Qld). The court further considered the principles governing the assessment of excessiveness in sentencing, including the need for the sentence to reflect the seriousness of the offence and the circumstances of the offender. The court found that the sentencing judge had properly considered the relevant factors and the inconsistencies in the evidence, and that the sentence imposed was not manifestly excessive.

The court concluded that the applicant's appeal against the sentence was without merit. The court found that the sentencing judge had appropriately exercised their discretion in determining the sentence, and that there was no error in the findings of fact. The court held that the sentence was proportionate to the offence and the circumstances of the offender. Therefore, the application to reduce the sentence was refused.

The final orders of the court were that the application to reduce the sentence was refused. The applicant was to serve the sentence as imposed by the sentencing judge, with a parole release date after serving 12 months. The court's decision upheld the original sentence, affirming that it was not manifestly excessive and that the sentencing judge had properly considered all relevant factors.

Orders

Orders of the court

Application refused

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 Verheyen [2008] QCA 150
PARTIES:	R v VERHEYEN, Brendan (applicant)
FILE NO/S:	CA No 311 of 2007 DC No 715 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	13 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2008
JUDGES:	Fraser JA, Philippides and Daubney JJ 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 – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where the applicant was convicted on his plea of guilty of one count of causing grievous bodily harm – where there was a contested sentence hearing – where the applicant was sentenced to three years imprisonment with a parole release date after serving 12 months – where there was some inconsistent evidence – where the sentencing judge applied the appropriate standard of proof required by s 132C(4) of the Evidence Act 1977 (Qld) – where the applicant alleged that the sentence was manifestly excessive and that the sentencing judge erred in the findings of fact – whether the sentencing judge was unaware of or did not take into account the inconsistencies – whether the sentence was manifestly excessive Evidence Act 1977 (Qld), s 132C(4) R v Tupou; ex parte A-G (Qld)[2005] QCA 179, considered
COUNSEL:	The applicant appeared on his own behalf R G Martin SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent