R v Von Pearson - [2006] QCA 292

SUPREME COURT OF QUEENSLAND

CITATION:

R v Von Pearson [2006] QCA 292

PARTIES:

R
v
VON PEARSON, Simon Anthony
(applicant)

FILE NO/S:

CA No 108 of 2006
DC No 502 of 2005
DC No 199 of 2006
DC No 14 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

11 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2006

JUDGES:

McMurdo P, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence 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 - GENERALLY - where applicant pleaded guilty to one count of burglary, two counts of kidnapping, two counts of grievous bodily harm and one count of assault with intent to commit a crime - where applicant's effective total sentence was eight years imprisonment with serious violent offender declarations - where applicant claims that his sentence was manifestly excessive in that his kidnapping offences should not have been declared to be serious violent offences - whether sentencing judge erred in so declaring

Penalties and Sentences Act 1992 (Qld), Part 9A

R v AR [2003] QCA 538; CA No 283 of 2003, 2 December 2003, followed

R v El-Masri [2003] QCA 52; CA No 360 of 2002, 19 February 2003, followed

COUNSEL:

Applicant appeared on his own behalf
M J Copley for respondent

SOLICITORS:

Applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent

McMURDO P: The applicant pleaded guilty on 7 April 2006 in the District Court at Southport to one count of burglary and, on a separate indictment, to two counts of kidnapping, two counts of grievous bodily harm and one count of assault with intent to commit a crime. He also pleaded guilty to a summary charge of possession of a small quantity of cannabis. He was sentenced to five years concurrent imprisonment for each of the offences of kidnapping and grievous bodily harm which occurred first in time. In respect of the kidnapping offence he was declared to be convicted of a serious violent offence under Part 9A Penalties and Sentences Act 1992 (Qld). He was then sentenced to three years imprisonment for each of the kidnapping and grievous bodily harm offences which occurred second in time. In respect of this kidnapping offence he was also declared to be convicted of a serious violent offence. He was sentenced to two years imprisonment for the serious assault. Those three terms of imprisonment were concurrent with each other but cumulative on the five year terms of imprisonment. He was also sentenced to one year concurrent imprisonment for the burglary offence and not further punished in respect of the drug offence. As the offences on the five count indictment constituted a…

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 Von Pearson

Details

AGLC: R v von Pearson [2006] QCA 292
Case: [2006] QCA 292
Decision Date: 11 August 2006

CaseChat Overview and Summary

The appeal was brought by the convicted person, Von Pearson, against his sentence imposed by the trial judge. Von Pearson had pleaded guilty to one count of burglary, two counts of kidnapping, two counts of grievous bodily harm, and one count of assault with intent to commit a crime. The primary issue before the court was whether the sentencing judge had erred in declaring Von Pearson's kidnapping offences to be serious violent offences, which led to an overall sentence of eight years imprisonment, including serious violent offender declarations.

The court considered the principles established in R v AR and R v El-Masri, which guide the circumstances under which a sentence may be deemed manifestly excessive. The court found that the sentencing judge had correctly applied the relevant legal principles in determining the seriousness of the offences and the appropriate sentence. The court emphasised the need to consider the totality of the offending, the harm caused, and the offender's culpability. The court concluded that the sentence was not manifestly excessive and that the judge had not erred in declaring the kidnapping offences as serious violent offences. The application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence 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 Von Pearson [2006] QCA 292
PARTIES:	R v VON PEARSON, Simon Anthony (applicant)
FILE NO/S:	CA No 108 of 2006 DC No 502 of 2005 DC No 199 of 2006 DC No 14 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	11 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2006
JUDGES:	McMurdo P, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence 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 - GENERALLY - where applicant pleaded guilty to one count of burglary, two counts of kidnapping, two counts of grievous bodily harm and one count of assault with intent to commit a crime - where applicant's effective total sentence was eight years imprisonment with serious violent offender declarations - where applicant claims that his sentence was manifestly excessive in that his kidnapping offences should not have been declared to be serious violent offences - whether sentencing judge erred in so declaring Penalties and Sentences Act 1992 (Qld), Part 9A R v AR [2003] QCA 538; CA No 283 of 2003, 2 December 2003, followed R v El-Masri [2003] QCA 52; CA No 360 of 2002, 19 February 2003, followed
COUNSEL:	Applicant appeared on his own behalf M J Copley for respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for respondent