R v West - [2006] QCA 252

SUPREME COURT OF QUEENSLAND

CITATION:

R v West [2006] QCA 252

PARTIES:

R
v
WEST, Nathaniel Kenneth
(applicant/appellant)

FILE NO/S:

CA No 3 of 2006
DC No 207 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

14 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2006

JUDGES:

McMurdo P, Holmes JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.     Application for leave to appeal against sentence        granted

2.     Appeal against sentence allowed

3.     On count 1 substitute three years imprisonment for        four years imprisonment

4.     Orders imposed at first instance are otherwise        confirmed

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 GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - GENERALLY - where applicant was sentenced to four years imprisonment on one count of assault occasioning bodily harm and six months imprisonment on one count of unlawful use of a motor vehicle, to be served concurrently - where applicant has a lengthy criminal history but is remorseful and believes that he has a problem with alcohol - where trial judge and counsel at sentence incorrectly believed that s 157(3) Penalties and Sentences Act 1992 (Qld) required a parole recommendation to be imposed and that this could not be for a date before 9 September 2007 - where applicant claims that his sentence was manifestly excessive and that trial judge did not sufficiently take mitigating factors into account - whether trial judge sufficiently took into account mitigating factors such as applicant's remorse and plea of guilty

Criminal Code 1899 (Qld), s 339

Penalties and Sentences Act 1992 (Qld), s 156A, s 157(3), s 157(4)

R v Fifita [2005] 1 Qd R 51, applied
R v Gander [2005] 2 Qd R 317, applied

R v Hadland [2000] QCA 182; CA No 368 of 1999, 16 May 2000, considered
R v Summers; ex parte A-G (Qld) [2004] QCA 275; CA No 131 of 2004, 3 August 2004, applied

COUNSEL:

A W Moynihan for applicant
R G Martin SC for respondent

SOLICITORS:

Legal Aid Queensland for applicant
Director of Public Prosecutions (Queensland) for respondent

McMURDO P: The applicant pleaded guilty on 8 September 2005 in the District Court at Rockhampton to one count of assault occasioning bodily harm and one count of unlawful use of a motor vehicle. The offences occurred on 18 December 2004 and the complainant in each case was his then partner. He was sentenced to four years imprisonment on the first count and to six months imprisonment on the second count. Those sentences were concurrent with each other but were ordered to be served on the expiration of the period of imprisonment for which the applicant was then liable. The judge recommended the applicant be considered for post‑prison…

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 [2006] QCA 252
Case: [2006] QCA 252
Decision Date: 14 July 2006

CaseChat Overview and Summary

The appellant in this case, R v West, appealed against his sentence in the Queensland Court of Appeal. The appellant was convicted on one count of assault occasioning bodily harm and one count of unlawful use of a motor vehicle, with sentences of four years and six months imprisonment respectively, to be served concurrently. The appellant argued that his sentence was manifestly excessive and that the trial judge did not sufficiently consider mitigating factors such as his remorse and guilty plea. The appellant also claimed that the trial judge and counsel at sentencing incorrectly believed that a parole recommendation could not be imposed before 9 September 2007.

The legal issues that arose from the appeal included whether the trial judge sufficiently took into account the mitigating factors of the appellant's remorse and guilty plea, and whether the appellant's lengthy criminal history was adequately considered. The Court of Appeal needed to determine whether the appellant's sentence was manifestly excessive and whether the trial judge's error in imposing a parole recommendation had any bearing on the sentence.

The Court of Appeal found that the trial judge did not sufficiently consider the mitigating factors of the appellant's remorse and guilty plea. The Court of Appeal also found that the appellant's lengthy criminal history did not warrant an excessively long sentence. The Court of Appeal held that the error in imposing a parole recommendation did not affect the sentence, as the appellant's sentence would have been the same regardless. The Court of Appeal allowed the appeal against sentence and substituted a sentence of three years imprisonment for count 1, while confirming the orders imposed at first instance.

The final orders of the Court of Appeal were that the application for leave to appeal against sentence was granted, the appeal against sentence was allowed, and the sentence for count 1 was substituted to three years imprisonment for four years imprisonment. The orders imposed at first instance were otherwise confirmed.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal against sentence allowed

3. On count 1 substitute three years imprisonment for four years imprisonment

4. Orders imposed at first instance are otherwise confirmed

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 West [2006] QCA 252
PARTIES:	R v WEST, Nathaniel Kenneth (applicant/appellant)
FILE NO/S:	CA No 3 of 2006 DC No 207 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	14 July 2006
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2006
JUDGES:	McMurdo P, Holmes JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal against sentence allowed 3. On count 1 substitute three years imprisonment for four years imprisonment 4. Orders imposed at first instance are otherwise confirmed
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 GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - GENERALLY - where applicant was sentenced to four years imprisonment on one count of assault occasioning bodily harm and six months imprisonment on one count of unlawful use of a motor vehicle, to be served concurrently - where applicant has a lengthy criminal history but is remorseful and believes that he has a problem with alcohol - where trial judge and counsel at sentence incorrectly believed that s 157(3) Penalties and Sentences Act 1992 (Qld) required a parole recommendation to be imposed and that this could not be for a date before 9 September 2007 - where applicant claims that his sentence was manifestly excessive and that trial judge did not sufficiently take mitigating factors into account - whether trial judge sufficiently took into account mitigating factors such as applicant's remorse and plea of guilty Criminal Code 1899 (Qld), s 339 Penalties and Sentences Act 1992 (Qld), s 156A, s 157(3), s 157(4) R v Fifita [2005] 1 Qd R 51, applied R v Gander [2005] 2 Qd R 317, applied R v Hadland [2000] QCA 182; CA No 368 of 1999, 16 May 2000, considered R v Summers; ex parte A-G (Qld) [2004] QCA 275; CA No 131 of 2004, 3 August 2004, applied
COUNSEL:	A W Moynihan for applicant R G Martin SC for respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for respondent