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Court of Appeal Summary Notes - Criminal Print E-mail

coaintro.jpgThe following summary notes of recent decisions of the Queensland Court of Appeal have been prepared by Bruce Godfrey, Court of Appeal Research Officer. They provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

The following Judgments are summarised in this issue. The summary notes follow after this list.

CRIMINAL APPEALS

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CRIMINAL APPEALS


R v Bonham; Ex parte Director of Public Prosecutions (Cth) [2014] QCA 140; Margaret McMurdo P and Philippides and Dalton JJ 13/06/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY INADEQUATE

Where the respondent pleaded guilty to four counts of recklessly importing marketable quantities of border controlled drugs and one count of importing border controlled drugs – where the respondent was sentenced to an effective term of four years imprisonment to be released on parole after serving six months – where the respondent was engaged in the lawful business of importing substances to assist him in making a lawful cannabis-like substance – where the respondent's customers asked him if he could lawfully supply "party pills" – where the respondent adopted amateurish means to research the drug's legality and made enquiries which were not particularly broad or diligent – where the respondent threw the imported drugs away as soon as he realised they were illegal – whether the sentence imposed was manifestly inadequate

R v Beetham [2014] QCA 131; Margaret McMurdo P and Muir JA and Douglas J 06/06/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION

Where the appellant was a repeat customer of the business managed by the complainant – where the business supplied parts which were neither paid for nor returned – where the complainant phoned the appellant to discuss the payment or return of the parts and a heated argument developed – where the complainant gave evidence that the appellant punched him with his right closed fist on the left side of his jaw – where the appellant gave evidence that the complainant threw a punch which the appellant was able to duck and only then did he punch the complainant – where the appellant's account was supported by all eyewitnesses other than the complainant and raised s 271(2) Criminal Code – where the trial judge directed the jury only in terms of s 271(1) Criminal Code – where neither counsel at trial nor the judge discussed whether s 271(2) Criminal Code should be left to the jury – whether the failure to direct on s 271(2) Criminal Code constituted a miscarriage of justice

R v Hartfiel [2014] QCA 132; Margaret McMurdo P and Muir JA and Dalton J 06/06/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION

Where the appellant was convicted after a trial of three counts of forgery and three counts of uttering – where the appellant was found guilty on all counts except one count of forgery – where appellant contends that the primary judge erred in law in failing to direct the jury that no adverse inference could be drawn from the fact that the appellant did not give evidence – whether the primary judge erred in directing the jury in her summing up – whether the failure to direct the jury as alleged constituted a miscarriage of justice – whether s 668E(1A) of the Criminal Code (Qld) applies

R v Anderson [2014] QCA 134; Margaret McMurdo P and Morrison JA and Boddice J 06/06/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS

Where the appellant was found guilty of one count of serious assault, one count of dangerous operation of a motor vehicle and one count of malicious act with intent – where the appellant pointed a long barrelled firearm from the passenger window of a vehicle at a marked police car that was in pursuit – where the appellant pointed, aimed and fired a long barrelled firearm from the passenger window of a vehicle and hit the bonnet of an unmarked police car that was in pursuit at speed – where the appellant was found not guilty of, inter alia, one count of attempted murder – whether a verdict of guilty on malicious act with intent is inconsistent with the verdict of not guilty of attempted murder

CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

Where the appellant was found guilty of, inter alia, one count of malicious act with intent – where the appellant pointed, aimed and fired a long barrelled firearm from the passenger window of a vehicle and hit the bonnet of an unmarked police car that was in pursuit at speed – whether the jury could be satisfied the appellant’s actions were willed – whether the verdict of guilty for a malicious act with intent was unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Where the appellant was found guilty of one count of serious assault, one count of dangerous operation of a motor vehicle and one count of malicious act with intent – where the appellant was sentenced to an effective head sentence of 10 years imprisonment – where the appellant was declared to be a serious violent offender – where the appellant had been convicted of attempted murder in 2001 and was sentenced to 12 years imprisonment and declared to be a serious violent offender – where the appellant had been convicted for robbery with actual violence whilst armed with a dangerous or offensive weapon – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE

Where the appellant was sentenced to an effective head sentence of 10 years imprisonment – where the appellant was declared to be a serious violent offender – where the sentencing judge did not place particular emphasis on the appellant’s personal circumstances – where the sentencing judge referred to a decision involving a more dangerous series of acts – whether the sentencing judge failed to have regard to factors personal to the appellant’s circumstances and whether this resulted in a manifestly excessive sentence

R v Bolton; Ex parte Attorney-General (Qld) [2014] QCA 128; Holmes, Fraser and Gotterson JJA 03/06/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Where the respondent pleaded guilty to four counts of rape, four counts of supplying dangerous drugs with a circumstance of aggravation, one count of possessing a thing used in connection with possessing a dangerous drug and one count of possessing a dangerous drug – where the respondent was sentenced to five years imprisonment for the rape offences, suspended after a period of two years with an operational period of five years – where offences were extremely serious with aggravating features including violation of minors and supply of drugs to them – where the appellant contends that the sentence was rendered unreasonable by the sentencing judge's failure to declare the offences serious violent offences under s 161B of the Penalties and Sentences Act 1992 or to make another order effectively postponing the respondent’s release – where the prosecutor at first instance advocated for the sentence imposed – whether the sentence was manifestly inadequate

R v SCG [2014] QCA 118; Gotterson and Morrison JJA and Jackson J 27/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION

Where the appellant was charged with five counts of indecent dealing with a child under 16 years – where after a trial the jury were unable to agree on count 1, returned majority guilty verdicts on counts 2, 3 and 5 and returned a unanimous guilty verdict on count 4 – where the complainant gave evidence by way of s 21AK and s 93A of the Evidence Act 1977 (Qld) – where during deliberations the jury requested and was allowed by the learned primary judge to watch the entirety of the complainant’s evidence again – where the learned primary judge neither reminded the jury of the appellant’s evidence nor warned the jury not to give undue weight to the complainant’s evidence having watched it again – whether there was a miscarriage of justice

R v Seijbel-Chocmingkwan [2014] QCA 119; Gotterson and Morrison JJA and Martin J 27/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Where the applicant pleaded guilty to one count of attempted murder and one count of dangerous operation of a motor vehicle – where the applicant was sentenced to 10 years imprisonment for the first count and 12 months imprisonment to be served concurrently for the second count – where the first conviction was declared to be a serious violent offence – where the applicant was separated from her husband (“Seijbel”) of 12 years – where the complainant was in a relationship with the Seijbel – where the applicant was on parole for assault at the time of the offending – where the applicant ran her vehicle twice into the back of the complainant’s stationary vehicle causing Seijbel to suffer bruising – where the applicant got out of her vehicle, reached back into it to get a knife, then ran after and attacked the complainant by stabbing and strangling her – where the applicant kicked the complainant’s daughter in the face when she came to help – where a neighbour intervened ending the attack – where the applicant stabbed herself with a biro causing superficial injuries – where the complainant’s injuries were serious, remaining in hospital for three days – where the complainant continues to experience – where the applicant had mental health problems but was found by the Mental Health Court to be of sound mind at the time of the offences and fit to stand trial – where the applicant contends that the learned primary judge did not take into account her mental health problems – where the applicant submits that the learned primary judge did not make a finding as to premeditation – where the applicant contends that the offences were not premeditated – whether the sentence was manifestly excessive

R v Carter [2014] QCA 120; Gotterson and Morrison JJA and Jackson J 27/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE

Where the applicant argued that the verdict was unreasonable due to inconsistencies between the complainant’s evidence and other evidence – whether there is doubt in the appellate court – whether jury’s advantage in seeing and hearing evidence is capable of resolving the doubt experienced by the appellate court

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS

Where the applicant argued that a verdict of guilty on the assault count was inconsistent with a verdict of not guilty on a count of dangerous operation of a vehicle – whether there was a necessary inconsistency between the two verdicts

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION

Where the appellant was found not guilty of dangerous operation of a motor vehicle and guilty of assault – where the appellant argued that the acquittal on the dangerous operation of a motor vehicle count was a result of the jury rejecting the complainant’s evidence on that count – whether the trial judge had erred in failing to direct the jury that if it entertained a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more of the counts of the indictment that doubt must be taken into account in assessing the overall truthfulness or reliability of the complainant’s evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION

Where a female child gave evidence in accordance with s 21AK of the Evidence Act 1977 (Qld) – where the female child had a support person under s 21AV of the Evidence Act 1977 (Qld) – where the trial judge referred to the support person as an “adult present” rather than a “support person” – whether that direction was inconsistent with s 21AW and was therefore an error of law

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE

Where the trial judge made an error of law in failing to give a direction in compliance with s 21AW of the Evidence Act 1977 (Qld) – where the child’s evidence tended to exculpate the applicant – where there was no possibility that the jury would consider the support person to be someone who may have coached, intimidated or some way affected the child in a way to change the weight they would otherwise have given to the child’s evidence – whether there was a substantial miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS OF INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Where the applicant was convicted of assault – where the sentence imposed was 18 months imprisonment, suspended after eight months served with an operational period of 18 months – where the applicant was a participant in a larger endeavour designed to recover his co defendant’s children from the custody of her ex-partner – whether the sentence was manifestly excessive, in the circumstances

White v Commissioner of Police [2014] QCA 121; Muir and Morrison JJA and Atkinson J 27/05/2014

Catchwords: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY

Where the applicant was convicted in the Magistrates Court of disobeying a speed limit and sentenced accordingly – where the applicant’s appeal to the District Court pursuant to s 222 of the Justice Act 1886 (Qld) was dismissed and costs were awarded against him – where the applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where leave will only be granted where an appeal is necessary to correct a substantial injustice to the applicant or there is a reasonable argument that there is an error to be corrected – whether leave to appeal should be granted

R v Williams [2014] QCA 114; Fraser and Gotterson JJA and Daubney J 23/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE

Where the appellant was employed as a bookkeeper – where the appellant was charged with four counts of dishonestly applying funds from her employer for her own use – where Counts 2 and 3 each alleged a circumstance of aggravation being that the dishonestly appropriated property exceeded $30,000 – where the jury were unable to reach a verdict on Count 1, but found the appellant guilty of Count 2 without the circumstance of aggravation and guilty of Counts 3 and 4 as charged – where in a re-direction the trial judge described Count 2 as “an all or nothing” case – where the appellant submitted that the finding of fraud simpliciter on Count 2 meant that the jury had reasonable doubt about the transfers subject to the Counts 3 and 4 and the other amounts in the minority of Count 2 – whether the verdicts on Count 2, 3 and 4 were inconsistent

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Where the applicant was sentenced to five years imprisonment with parole eligibility after one half of the sentence is served – where the trial judge sentenced on a factual basis that “the fraud in Count 2 approached, but fell short of $30,000” – where there was no explanation behind this basis – whether the sentence was manifestly excessive in all the circumstances

R v Choomwantha [2014] QCA 115; Muir and Gotterson JJA and Jackson J 23/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Where after a 10 day trial the applicant was convicted of abducting and raping the five year old complainant – where the applicant was sentenced to 10 years imprisonment for the rape and to a concurrent term of five years imprisonment for the abduction – where the applicant attended a birthday party at which the complainant and her family were present – where the applicant took the complainant from the yard of the house to behind a parked car – where the applicant penetrated the complainant’s vagina with his finger – whether the sentence imposed by the sentencing judge was manifestly excessive

Summary Notes

Sentence Application – where after a 10 day trial the applicant was convicted of abducting and raping the five year old complainant – where the applicant was sentenced to 10 years imprisonment for the rape and to a concurrent term of five years imprisonment for the abduction – where the applicant attended a birthday party at which the complainant and her family were present – where the applicant took the complainant from the yard of the house to behind a parked car – where the applicant penetrated the complainant’s vagina with his finger – where the sentencing judge found that the applicant created the opportunity to commit the offences by engaging with the complainant that night and that he took her away to fulfil his purpose – where the sentencing judge said in her sentencing remarks, “taking a young child away to commit an offence is a serious form of aggravation which draws a much more significant penalty than the cases such as AAD” – where as a general proposition, those observations are unexceptionable but her Honour failed to appreciate that there was a marked difference in degree between the applicant’s abduction of the child and that in R v D and R v Stoian – where in in particular: the threat of violence in R v D; the use of a knife in R v Stoian; and the criminal histories of the offenders in those cases suggest that they are not truly comparable – where in this case, the insertion of the finger caused pain and injury – where nevertheless, it did not, consistently with the principles articulated in R v McDougall and Collas, call for the making of the serious violent offence declaration sought – whether the sentence imposed by the sentencing judge was manifestly excessive. Leave granted. Appeal allowed. Sentence of 10 years imprisonment with a serious violent offence declaration be set aside and a sentence of eight years be imposed.

R v Stanley [2014] QCA 116; Fraser and Morrison JJA and Mullins J 23/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICE OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF

Where in March 2003 the applicant was convicted after trial of murder and sentenced to life imprisonment – where in November 2003 this Court refused the applicant’s appeal against conviction – where the applicant applies for an extension of time to appeal against conviction – where the applicant contents that a Crime and Misconduct Commission (“CMC”) investigation and an expert report bear upon whether he was properly convicted – where the applicant contends that the CMC investigation demonstrates that certain police officers fabricated evidence against him – where the applicant contends that the expert report places the applicant outside of the area where the victim was killed at the time of the offence – where s 668D of the Criminal Code confers the right of appeal to this Court – where according to Grierson v The King (1938) 60 CLR 431 once an appeal has been decided on merits the right of appeal conferred by s 668D is exhausted – whether this Court has jurisdiction to entertain a further appeal where the applicant contends his conviction was tainted by fabricated evidence

R v Hill; R v Young [2014] QCA 107; Chief Justice and Fraser and Morrison JJA 16/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED

Where the appellant Young and the appellant Hill were in a relationship – where Hill and the deceased used to be good friends but had fallen out – where Young found out that Hill was sleeping with another woman – where on Friday 8 October 2010 Hill was in Brisbane and Young and the deceased were in Gladstone – where on the evening of Friday 8 October and the morning of Saturday 9 October Young and the deceased communicated to Hill via text messages and phone calls that they were sleeping together – where in response Hill made death threats via text messages and phone calls against the deceased – where on Saturday 9 October Hill travelled to Gladstone allegedly acquiring heroin en route – where on Saturday 9 October Young and Hill reconciled – where on the evening of Saturday 9 October Young and the deceased arranged for the former to deliver the latter a syringe containing a pre-mixed drug – where on the evening of Saturday 9 October or the morning of Sunday 10 October Hill arranged for Weston to place an envelope in the deceased’s letterbox – where on Sunday 10 October the deceased injected himself with a syringe containing a pre-mixed drug and died – where medical evidence determined that the deceased died from an overdose of heroin – where there was evidence that the deceased used amphetamines but not heroin – where Hill was convicted after trial of the murder of the deceased – where Hill contends that the verdict is unreasonable and cannot be supported having regard to the evidence – where inter alia Hill contends that Hill’s hostility toward the deceased did not continue after he arrived in Gladstone and the deceased injected the drugs on a voluntary and informed basis – whether the verdict against Hill is unreasonable and insupportable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED

Where Young was convicted after trial of the murder of the deceased pursuant to s 7 of the Criminal Code – where Young contends that the verdict is unreasonable and cannot be supported having regard to the evidence – where Young contends that the lethal dose of heroin did not come from the envelope Hill had placed in the deceased’s letterbox – where Young contends that Hill was not with her for all of her text message communications with the deceased on Saturday 9 October – where Young contends that the deceased did not take Hill’s threats seriously – where Young contends that she did not have actual knowledge that Hill had an intention to kill or do grievous bodily harm to the deceased – where Young contends there is insufficient evidence to conclude that she aided Hill to supply heroin to the deceased – whether the verdict against Young is unreasonable and insupportable

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY

Where Hill contends that there was a miscarriage of justice in that a contradictory statement by McNeil, relevant to the reliability of that witness as to the deceased’s knowledge of the drug supplied to him, was not before the jury – where that contrary statement was available to Hill’s representatives at trial – where Hill contends that McNeil should have been cross-examined on the disparity of the statements – where Hill applied for leave to adduce that evidence before this Court – whether this resulted in an unfair trial and deprived Hill of a fair chance of acquittal – whether leave to adduce the evidence should be given

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE

Where Hill contends that inadmissible evidence of an accusation that Hill improperly interfered with children, and that Hill was a drug dealer, was before the jury, and the prejudice thereby occasioned could not be cured by direction – where the witness Hardwick gave evidence that the deceased and Young had taunted Hill about “doing things to children” – where the learned trial judge dealt with this evidence in summing up – where a witness referred to Hill as a drug dealer – where Hill and many of the witnesses were at the time of the deceased’s death part of the Gladstone drug scene – whether either reference caused any prejudice to the deceased – whether the reference to Hill “doing things to children” could be cured by directions – whether the jury should have been discharged

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE

Where on Sunday 10 October after learning of the deceased’s death Hill told Watson to “shut your mouth” – where Hill contends there was a miscarriage of justice in that the jury were wrongly directed that post-offence conduct by Hill was capable of amounting to evidence of consciousness of guilt of murder – whether this evidence was capable of demonstrating a consciousness of guilt

R v Hopper; Ex parte Attorney-General (Qld) [2014] QCA 108; Fraser and Morrison JJA and Boddice J 16/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY

Where the respondent pleaded guilty to dangerous driving causing death and grievous bodily harm – where the respondent was sentenced to two and a half years imprisonment wholly suspended for three years, and was disqualified from holding a driver’s licence for three years – where the trial judge considered that the circumstances of the offence and the respondent’s personal circumstances and youthfulness favoured a non-custodial sentence – where the Attorney-General argued a wholly suspended period of imprisonment was plainly unreasonable and unjust – consideration of the relevance of personal and general deterrence, the gravity of the consequences of the offence, and a subsequent traffic offence – whether the sentence was manifestly inadequate

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS

Where five months have passed since the respondent was sentenced to a wholly suspended term of imprisonment – where the respondent is psychologically vulnerable and has made substantial efforts toward rehabilitation – whether, if the sentence was manifestly inadequate, the Court should exercise its residual discretion not to return the respondent to custody

Summary Notes

Sentence Appeal by Attorney-General (Qld) – where the respondent pleaded guilty to dangerous driving causing death and grievous bodily harm – where the respondent was travelling towards Caboolture and was looking at a map on a mobile phone because she was not familiar with the road – where the respondent was sentenced to two and a half years imprisonment wholly suspended for three years, and was disqualified from holding a driver’s licence for three years – where the trial judge considered that the circumstances of the offence and the respondent’s personal circumstances and youthfulness favoured a non-custodial sentence – where the Attorney-General argued a wholly suspended period of imprisonment was plainly unreasonable and unjust – consideration of the relevance of personal and general deterrence, the gravity of the consequences of the offence, and a subsequent traffic offence – where the sentencing judge considered that general deterrence was of significance in this case because it was commonplace to see people using their phones as they were driving and the imposition of stern punishment for those who used their phones whilst driving and caused significant harm or property damage might perhaps lead to a reduction in the incidence of that unlawful conduct – where only five months after the accident in which one person died and another was grievously injured as a result of the respondent’s dangerous driving, she again looked at a maps application on a mobile phone whilst driving – where having regard to the relevance of personal deterrence (particularly in light of the respondent’s subsequent traffic offence), the importance of denouncing the respondent’s offence, and especially the importance of seeking to deter others from committing a similar offence, and notwithstanding the respondent’s youthfulness and other personal circumstances, the sentence was rendered impermissibly lenient by the absence of any period of actual custody – where the necessary period of actual custody might have been limited to about five months for driving this dangerously with consequences as serious as death of one person and grievous bodily harm of another the absence of any period of actual custody rendered the sentence manifestly inadequate – where five months have passed since the respondent was sentenced to a wholly suspended term of imprisonment – where the respondent is psychologically vulnerable and has made substantial efforts toward rehabilitation – whether, if the sentence was manifestly inadequate, the Court should exercise its residual discretion not to return the respondent to custody – where if the respondent had been given an appropriate custodial sentence, she might have served it in full and been released by the time this appeal was heard – where the factor of most significance militating against the exercise of the residual discretion is the desirability of correcting a sentence imposed in error which is insufficient to deter others from committing similar offences – where in all of the circumstances the desirability of correcting the sentence on appeal by imposing a relatively short period of actual custody does not justify the resulting interruption of the rehabilitation and reintegration into society upon which this youthful and psychologically vulnerable respondent has substantially embarked. Appeal dismissed.

R v Baumgart [2014] QCA 109; Fraser JA and Atkinson and Jackson JJ 16/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS

Where the applicant was convicted, on his own pleas of guilty, of a number of offences including armed robbery in company with personal violence, fraud, attempted fraud, and several drug-related offences – where the applicant was sentenced to five years imprisonment with parole eligibility set at 18 months for the offence of armed robbery in company with personal violence – where the applicant’s co-offender on the armed robbery in company with personal violence was sentenced, on his plea of guilty, to three years imprisonment with parole eligibility set at nine months – where the co-offender was 10 years younger than the applicant with a less extensive criminal history – where the co-offender had not committed additional offences with which the applicant was charged – where the co-offender was not in breach of a suspended sentence or on parole – whether the applicant could have a justifiable sense of grievance about parity of the sentences

R v Douglas [2014] QCA 104; Muir and Gotterson JJA and Mullins J 09/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – PARTICULAR CASES

Where the appellant was convicted after a trial of attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been imported contrary to s 307.8(1) and s 11.1(1) of the Criminal Code 1995 (Cth) – where the appellant contended that a sentence had been included in the tendered admissions document by mistake – where the inclusion of the sentence was not agreed upon by the parties – whether the sentence was admissible – whether placing inadmissible evidence before the jury was prejudicial

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES

Where the appellant checked into two different motels under fake names – where parcels were delivered to the motels – where powder partly composed of MDMA was found inside one of the parcels – where a man posing as a police officer came to the motel seeking to question the motel owner about the appellant – where inquiries revealed that no police officer had attended the motel – whether the trial judge erred in directing the jury that the evidence of someone else being involved was simply someone coming and asking for the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES

Where the appellant argued that the primary judge erred in not directing the jury that the Crown was required to prove beyond reasonable doubt that the appellant intended to possess a substance and that the appellant knew or believed that the substance was a border controlled drug – where the appellant contended that he attempted to possess the parcel but not with knowledge that it contained MDMA – whether the trial judge erred in his directions on the fault elements of the offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES

Where the associate to the trial judge failed to say “so says your speaker, so say you all” when delivering the verdict – whether the trial judge erred in failing to ensure beyond reasonable doubt that the verdict of the jury was unanimous

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Where the appellant was sentenced to nine and a half years imprisonment with a non-parole period of six years – where the appellant pleaded not guilty – whether in regards to all relevant circumstances the sentence was manifestly excessive

R v Presgrave [2014] QCA 105; Holmes and Fraser JJA and Thomas J 09/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Where applicant pleaded guilty to one count of grievous bodily harm, one count of assault occasioning bodily harm whilst armed, one count of committing public nuisance, one count of going armed so as to cause fear, one count of breach of bail condition, one count of unlawful use of a motor vehicle, one count of driving without a license, one count of driving without a license (repeat offender), and one count of failing to take reasonable care and precautions in respect of a syringe or needle – where the applicant was sentenced to four years imprisonment for the grievous bodily harm, to be served cumulatively with an 18 month sentence for the assault occasioning bodily harm whilst armed; and concurrently with six months imprisonment for the count of going armed in public, and two months imprisonment for the unlawful use of motor vehicle and committing public nuisance, with a parole eligibility date set after one third of the head sentence is served – where some of the offences were committed whilst the applicant was on bail for the grievous bodily harm offence – where the applicant is 25 years of age and has a criminal history of violent offences – where the offences were of a sustained nature and where the applicant showed no remorse – whether the sentences for grievous bodily harm and assault occasioning bodily harm should have been imposed cumulatively – whether the sentence imposed is manifestly excessive

R v Clark [2014] QCA 099; Holmes, Fraser and Gotterson JJA 06/05/2014

Catchwords: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION

Where the appellant had been driving on a wet road – where the appellant had been doing “donuts” – where the appellant lost control of the vehicle and collided with an oncoming vehicle – where the appellant’s passenger and the other driver sustained serious injuries – where the appellant was convicted of dangerously operating a vehicle with a circumstance of aggravation and sentenced to two years imprisonment – where forensic evidence did not preclude the possibility that directly before the collision the vehicle aquaplaned out of the appellant’s control – where the appellant contended that a defence under s 23(1)(a) Code was engaged – whether the jury was directed with respect to this defence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION

Where the jury indicated that they could not agree – where the trial judge provided a “shorter version of the Black direction” – whether the direction departed from the model direction formulated in Black

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSE

Where there was evidence indicating possible hypotheses other than the prosecutor’s case – whether upon the whole of the evidence the jury could be satisfied beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWER OF COURT ON APPEAL

Whether the discretion to order a new trial ought to be exercised

Summary Notes

Appeal against Conviction – where the appellant had been doing “donuts” – where the appellant lost control of the vehicle and collided with an oncoming vehicle – where the appellant’s passenger and the other driver sustained serious injuries – where the appellant was convicted of dangerously operating a vehicle with a circumstance of aggravation and sentenced to two years imprisonment – where forensic evidence did not preclude the possibility that directly before the collision the vehicle aquaplaned out of the appellant’s control – where the appellant contended that a defence under s 23(1)(a) Code was engaged – where the learned trial judge began summing up for the jury late on the second day of the trial – where defence counsel proposed directions which included a direction with respect to a defence based on s 23(1)(a) – where his Honour thought that it had “the potential … to further confuse the jury” – where defence counsel did not persist with a request for a direction based on s 23(1)(a) – where in speaking of proof by the prosecution of driving on to the wrong side of the road as a “willed act” on the appellant’s part, the direction used the language of paragraph (a) in s 23(1) – where it implied that the prosecution case was that driving on to the wrong side of the road was the act which constituted the dangerous operation by the appellant of his vehicle – where the prosecution case was based upon a dangerous operation of the vehicle before it hit the guardrail and then veered to the wrong side of the road – where the appellant’s defence, which his counsel submitted was open to the jury so to find on the evidence, was that the direction of travel of the vehicle over that very short period of time and its hitting the guardrail were attributable to the wheel or wheels on its left-hand side having come into contact with pooled water on the road surface, as a result of which, beyond the appellant’s control, it aquaplaned, veering to the left and hitting the guardrail – where the act to which that defence might have applied was not identified as such in the course of the summing up; nor was the language of s 23(1)(a) used to illustrate its relevance to the defence – where these omissions were compounded by the inappropriateness of the s 23(1)(a)-based direction which was given – whether the jury was directed with respect to this defence – where the appeal must be allowed – whether there is to be a retrial or not ought to remain a matter for exercise of the discretion reposed in the Director of Public Prosecutions. Appeal allowed. Set aside the conviction under appeal. Order that there be a new trial on the count on which he was convicted.




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