R v West - [2007] QCA 347

SUPREME COURT OF QUEENSLAND

CITATION:

R v West [2007] QCA 347

PARTIES:

R
v
WEST, Paul Anthony
(applicant)

FILE NO/S:

CA No 143 of 2007
DC No 2189 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2007

JUDGES:

Keane JA, Dutney and Douglas 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 – GENERALLY – where applicant sentenced to four and a half years imprisonment for torture and lesser concurrent sentences for related offences –where applicant will become eligible for parole after serving half his sentence – whether order should have been made to suspend sentence at that point

Penalties and Sentences Act 1992 (Qld) s 160C(5)

COUNSEL:

P J Callaghan SC for the applicant
D R Mackenzie for the respondent

SOLICITORS:

Robertson O'Gorman for the applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 18 August 2006, the applicant was convicted on his own plea of one count of assault occasioning bodily harm, one count of common assault, one count of threatening violence, one count of unlawful wounding, one count of rape, one count of torture and one count of attempting to pervert the course of justice. He was not sentenced until 8 June 2007. On that date, a sentence of four and a half years imprisonment was imposed in respect of the torture count. Lesser concurrent sentences were imposed in respect of the other offences.

The applicant seeks leave to appeal against this sentence on the following grounds:

"Ground 1:Her Honour the learned sentencing Judge erred when she failed to consider the availability of s 144 of the Penalties and Sentences Act 1992.
Ground 2:Her Honour erred when she failed to suspend part of the term of imprisonment to which the applicant was sentenced."

I will set out the circumstances of the offences and the essential aspects of the approach of the learned sentencing judge before turning to a discussion of the arguments advanced on behalf of the applicant.

The circumstances of the offences

The offences in question, save the applicant's attempt to pervert the course of justice, all occurred on 22 February 2004 at a property outside Thargomindah. The applicant, who was then 36 years old, was the manager of the property and the complainant was his wife. They lived on the property with their three children who were aged 10, 14 and 16. The family relationship had been a troubled one. The applicant, a regular drinker, subjected the complainant and the children to outbreaks of personal violence over the years. It is said that he was under particular stress because of prolonged drought.

On the evening of 22…

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 West

Details

AGLC: R v West [2007] QCA 347
Case: [2007] QCA 347
Decision Date: 19 October 2007

CaseChat Overview and Summary

In the case of R v West, the appellant was sentenced to four and a half years in prison for acts of torture, along with concurrent sentences for related offences. The appellant sought an order to suspend the sentence after serving half the term, which would render them eligible for parole. The application was heard and determined by the court. The central legal issues revolved around the appropriate application of the principles governing the suspension of sentences, particularly in the context of a lengthy term of imprisonment and the implications of parole eligibility.

The court considered the legislative framework and relevant case law to assess whether the sentence should be suspended upon the appellant's eligibility for parole. The appellant argued that, given the length of the sentence and the potential for rehabilitation, a suspension order would be appropriate. However, the court held that the application did not meet the necessary criteria for such an order. The decision emphasised the importance of the sentencing judge's discretion in determining the appropriate conditions for parole and the circumstances under which a sentence might be suspended.

Following a thorough analysis of the legal principles and the facts of the case, the court concluded that the application for a suspension order should be refused. The court found that the sentencing judge had already considered the relevant factors and appropriately balanced the need for punishment with the potential for rehabilitation. The appeal was dismissed, and the application to suspend the sentence was refused. This outcome underscores the principle that significant interference with a sentence is not to be lightly granted and must be justified by exceptional circumstances.

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 West [2007] QCA 347
PARTIES:	R v WEST, Paul Anthony (applicant)
FILE NO/S:	CA No 143 of 2007 DC No 2189 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	19 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2007
JUDGES:	Keane JA, Dutney and Douglas 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 – GENERALLY – where applicant sentenced to four and a half years imprisonment for torture and lesser concurrent sentences for related offences –where applicant will become eligible for parole after serving half his sentence – whether order should have been made to suspend sentence at that point Penalties and Sentences Act 1992 (Qld) s 160C(5)
COUNSEL:	P J Callaghan SC for the applicant D R Mackenzie for the respondent
SOLICITORS:	Robertson O'Gorman for the applicant Director of Public Prosecutions (Queensland) for the respondent