Issue 79 - May 2017
Court of Appeal Judgment Summary Notes

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The 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. The full text of each decision may be accessed from the Court website which is accessible by clicking the case name.

 

CIVIL APPEALS

Nationwide News Pty Ltd v Weatherup [2017] QCA 070 ; [2017] 17 QLR (16/5049) Fraser JA and Douglas and Applegarth JJ 21 April 2017

Moreton Bay Regional Council v Caseldan Pty Ltd [2017] QCA 072 ; [2017] 19 QLR (1/15) Gotterson and McMurdo JJA and Bond J 24 April 2017 

KMB v Legal Practitioners Admissions Board (Queensland) [2017] QCA 076 ; [2017] 18 QLR (16/11729) Sofronoff P and Gotterson JA and Douglas J 28 April 2017

Queensland Building and Construction Commission v Turcinovic [2017] QCA 077 ; [2017] 18 QLR (16/4234) Morrison and Philippides JJA and North J 28 April 2017

 

CRIMINAL APPEALS

R v MCK [2017] QCA 056 (16/234) Holmes CJ and Gotterson JA and Ann Lyons J 7 April 2017

R v SCR [2017] QCA 060 (16/238) Fraser and Morrison JJA and Mullins J 11 April 2017

R v Iese [2017] QCA 068 (16/288) Gotterson and McMurdo JJA and Flanagan J 21 April 2017 

R v Knox [2017] QCA 074 (16/327) Morrison and Philippides JJA and Atkinson J 28 April 2017 

 


law.jpgCIVIL APPEALS

Nationwide News Pty Ltd v Weatherup [2017] QCA 070 ; [2017] 17 QLR (16/5049) Fraser JA and Douglas and Applegarth JJ 21 April 2017

General Civil Appeal – where a jury found that the appellant defamed the respondent in an article which imputed firstly that “he is a person habitually intoxicated” and secondly; “his habitual intoxication was sufficient to incur the wrath of judges, thereby causing his being obliged to leave the employment of the Townsville Bulletin” – where the jury rejected the appellant’s defences that each of these imputations was substantially true and of contextual truth – where damages were subsequently assessed by the trial judge in the amount of $100,000, interest was assessed at $7,479.88 and the appellant was ordered to pay costs on the indemnity basis – where the principles by which an appeal court will overturn jury findings were stated by members of the High Court in John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 – where the appellant must establish that the finding was one that no reasonable jury, properly directed, could make – where an ordinary, reasonable reader might have inferred that the respondent was given the nickname Malcolm “always under the weather up” because he was habitually intoxicated, for example, because he routinely or habitually drank to excess after work – where this ground of appeal was not established – where in relation to the second imputation, the words complained of were imprecise and capable of being read as suggesting that he left his employment with the Townsville Bulletin because he incurred the wrath of judges, and that he incurred the wrath of judges because of his habitual intoxication – where the article did not state or necessarily imply that the respondent attended his work whilst intoxicated or that his habitual intoxication affected his work performance – where his habitual intoxication may have manifested itself outside work hours, including in public places where it came to the attention of judges and incurred their wrath – where the second ground of appeal is not established – where in relation to the first imputation, the ultimate issue for the jury, after assessing the evidence of each witness and the evidence as a whole, was whether the respondent had proven that the imputation that the respondent “is a person habitually intoxicated” was substantially true – where it was open to the jury to conclude that the witnesses called by the appellant did not prove that the plaintiff was “habitually intoxicated”, and that the witnesses called by the respondent disproved this – where the appellant had the onus of proving that the respondent was habitually intoxicated – where a properly instructed jury could reasonably conclude, based on its assessment of the evidence, that the appellant had not discharged its onus of proof – where the third ground of appeal is not established – where the jury found that the contextual imputation that the respondent “in a fit of anger, committed the crime of wilful damage by kicking the door of a car belonging to his neighbour” was substantially true – where this finding was never in doubt because the respondent in his evidence frankly admitted those facts, as well as the fact that he was charged with wilful damage, pleaded guilty and was placed on a good behaviour bond for a period of six months, with a recognisance of $500 and no conviction recorded – where in the light of the evidence, the jury’s conclusion that contextual imputation (b) “the [respondent] was charged with the crime of wilful damage and, having pleaded guilty to the charge, was punished by being placed on a good behaviour bond for a period of six months and a recognizance of $500” was not substantially true is unreasonable – where the respondent does not seek to sustain the jury’s finding in relation to contextual imputation (b) – where the fourth ground of appeal is therefore established – where the appellant has not established that the jury’s finding in relation to the “no further harm” issue should be set aside – where the circumstances in which the jury concluded that further harm was done to the respondent’s reputation by the imputations upon which he succeeded, the appellant is not entitled to an order that the jury’s finding be set aside and replaced by a finding that no further harm was done to the respondent’s reputation – where the substituted finding that contextual imputation 5(b) was substantially true does not entitle the appellant to judgment – where the trial judge found that the appellant unreasonably failed to accept the respondent’s settlement offer, that s 40(2)(a) of the Defamation Act 2005 (Qld) was thereby engaged and that he was required by that section to order the respondent’s costs of and incidental to the proceeding to be assessed on an indemnity basis – where the trial judge then considered whether the indemnity costs should be assessed in accordance with either the District Court or the Magistrates Court scales, and declined to so order – where the appellant complains that that the trial judge failed to order, pursuant to r 697(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), that indemnity costs be assessed as if the proceeding had been commenced in the Magistrates Court – where the respondent’s claim was unlike a cause of action for a debt or a claim for economic loss in which success is measured essentially in monetary terms – where the vindication which the respondent obtained by virtue of the jury’s verdict means that his success should not be measured simply by reference to the size of the monetary award subsequently assessed by the judge – where the defamation was a serious one – where in all the circumstances it is appropriate to exercise the discretion recognised in r 697(2) UCPR – where there is no contest to the trial judge’s observation that it would not have taken any great management to have a District Court judge who was not resident in Townsville preside at a jury trial – where given the statutory cap on general damages, even with an award of aggravated damages, any damages award was very unlikely to exceed the jurisdiction of the District Court – where the legal issues to be decided by the trial judge were not so complex as to necessitate a trial in the Supreme Court – where in the circumstances, the most appropriate order is for costs to be assessed on an indemnity basis by having regard to the District Court scale and the other matters stated in r 703 UCPR – where the parties accept that the costs of the appeal in relation to liability should follow the event – where as to the costs of the appeal on costs, the starting point is that the costs of the appeal should follow the event – where the appeal against costs, as filed on 22 December 2016, was incompetent because leave of the trial judge was not obtained until 21 March 2017 – where the appeal against costs generated additional costs – where in all the circumstances, and given the limited success which the appellant has achieved in respect of the appeal against the costs order, the most appropriate order for costs in relation to the costs appeal is that there be no order as to costs. Orders: In Appeal No 5059 of 2016 (Defamation appeal), appeal allowed in part, the jury’s finding that contextual imputation 5(b) as pleaded in paragraph 12(a)(ii) of the further amended defence was not substantially true be set aside and replaced by a finding that the imputation was substantially true, the appeal is otherwise dismissed, the appellant pay the respondent’s costs of and incidental to the appeal. In Appeal No 1349 of 2016 (Costs of the appeal on costs), appeal allowed, Order 2 of the orders made on 12 December 2016 be set aside and in lieu thereof it be ordered that the defendant pay the plaintiff’s costs of and incidental to the proceeding, including reserved costs, such costs to be assessed on an indemnity basis, and having regard to the matters stated in r 703 of the Uniform Civil Procedure Rules 1999 (Qld), including the scale of fees prescribed for the District Court, there be no order as to the costs of the appeal.

Moreton Bay Regional Council v Caseldan Pty Ltd [2017] QCA 072 ; [2017] 19 QLR (1/15) Gotterson and McMurdo JJA and Bond J 24 April 2017 

Appeal from the Land Appeal Court – where the applicant compulsorily acquired land from the respondent “for recreation ground purposes” – where the Land Court ordered the value of the resumed land be assessed for compensation purposes at $1.8 million – where the Land Appeal Court allowed the respondent’s appeal and determined the value of the resumed land to be $4.1 million – where the applicant seeks reinstatement of the assessment ordered by the Land Court of $1.8 million – where the resumed land was surrounded by land owned by the applicant within a Sports and Recreation Zone – where the applicant made a material change of use application to itself in relation to this land for development purposes – where the application included the construction of an internal road which would provide access to the resumed land – where the Land Appeal Court found that the Land Court member erred in holding the concurrence agency could not impose an access condition on the applicant’s development application under the Sustainable Planning Act 2009 (Qld) (“SPA”) – where the Land Appeal Court adopted by analogy the decision in Intrapac Parkridge Pty Ltd v Logan City Council [2015] QPELR 49 (“Intrapac”) – where the applicant contends that the decision in Intrapac would suggest to a prudent purchaser that the prospect of an access condition being imposed on the applicant was “highly unlikely” – where that was because it was not supported by a road designated on the planning scheme in the 2006 Plan and was not supported by a necessity to develop land in accordance with applicable planning documents – where the applicant contends that the facts in Intrapac are materially different to the current matter – where the applicant contends that the Land Appeal Court thereby erred in reaching a view of what a hypothetical purchaser would think – whether the Land Appeal Court erred in adopting Intrapac by analogy – whether the alleged error amounts to an error of law – where this ground is not concerned with the interpretation, articulation or application of statutory law or legal principle by the Land Appeal Court – where central to it is the contention that the court failed to recognise that certain factual circumstances upon which the decision in Intrapac depended, were not present in the case before it with such a failure having the character of error of fact, and not of law – where as such, it cannot ground an appeal to this Court – where the criticism is of dubious merit – where the Land Appeal Court did acknowledge that there were plainly factual differences between Intrapac and the circumstances relevant to the development of the South Pine Sporting Complex (SPSC) – where as to the differences highlighted for the Council, whilst it may be accepted that there is no road on the planning scheme here comparable with the new major road in that case, Division 2 of the 2006 Plan does contain comparable provisions for the orderly and efficient development of transport infrastructure as part of overall outcomes for the urban locality in question – where the resumed land was surrounded by land owned by the applicant within a Sports and Recreation Zone – where the applicant made a material change of use application to itself in relation to this land for development purposes – where the proposed use conflicted with the applicable planning scheme – where s 326 SPA requires an assessment manager’s decision not to conflict with the applicable planning scheme unless there are sufficient grounds to justify departure – where the applicant contends the Land Appeal Court had regard to the zoning of land in contemplating the application’s prospect of success – where the definition of “grounds” in Schedule 3 SPA does not include the zoning of land – whether the Land Appeal Court incorrectly interpreted the SPA provisions as allowing an assessment manager to take zoning into account – whether the Land Appeal Court erred in envisaging that a hypothetical purchaser would have regard to zoning as an obstacle to obtaining approval – whether the alleged errors amounted to errors of law – where the conclusion expressed on this point is a conclusion with respect to a matter of fact, namely, the weight that a hypothetical purchaser would give to the current zoning in carrying out the balancing exercise to which reference has been made – where if error were made in arriving at that conclusion, it would be one of fact and not one of law, with such an error not founding a viable ground of appeal to this Court – where evidence of nine unaccepted offers for the resumed land was adduced before the Land Court member – where the Land Court member placed no weight on the offers because five were conditional, three were not regarded as genuine (“the Comiskey offers”) and one was aged (“the Flaskas offer”) – where the Land Appeal Court disagreed with the member’s conclusion as to the genuineness of the Comiskey offers – where the Land Appeal Court did not adopt the evidence of either of the two valuers’ respective valuations – where the Land Appeal Court’s final valuation reflected the Comiskey offers, the Flaskas offer and one of the conditional offers – whether the Land Appeal Court adopted a valuation methodology based on the unaccepted offers – whether the Land Appeal Court erred in having regard to verbal offers – whether the Land Appeal Court erred in having regard to conditional offers – whether the Land Appeal Court erred in incorrectly characterising a conditional offer as an unconditional offer (“the Flaskas offer”) – whether the incorrect characterisation vitiated the valuation of the Land Appeal Court – where the methodology employed by the Land Appeal Court to arrive at the figure of $4.1 million did not involve reliance upon offers: it was comparative sales-based, subject to adjustment for differences – where reference to the Flaskas offer was made after the value had been determined and then only in the most limited way, the Land Appeal Court noting that it would seem that the market value of the resumed land at the resumption date would have to be higher than that offer – where the Flaskas offer did not cause the Land Appeal Court to review and then adjust the value that it had determined in order to accommodate that offer in some way or other – where that error, however, would not justify setting aside the Land Appeal Court’s determination of value. Application for leave to appeal refused. Costs.

KMB v Legal Practitioners Admissions Board (Queensland) [2017] QCA 076 ; [2017] 18 QLR (16/11729) Sofronoff P and Gotterson JA and Douglas J 28 April 2017

General Civil Appeal – where the appellant seeks a declaration that certain matters will not affect the Board’s assessment as to whether he is a fit and proper person for admission – where the appellant had previously plead guilty to two counts of unlawful sodomy and two counts of indecent treatment of a child under 16 – whether the appellant’s prior offences adversely affect an assessment as to whether he is a fit and proper person for admission – where the appellant sought out psychological counselling almost immediately after he was charged and continued with his therapy for almost a year thereafter – where the appellant was also seen by Dr Grant, a consultant forensic psychiatrist, who provided a report for the purposes of the appellant’s application to the Board – where Dr Grant was of the opinion that the appellant was “very remorseful about his offending” – where Dr Grant was of the opinion that the appellant had “demonstrated strong commitment to work, career and community activities, particularly over the last eight years, and is strongly focused on living a productive and successful life, hopefully as a lawyer” – where it is 10 years since the offences were committed – where he completed a Bachelor of Music degree at Griffith University, Queensland Conservatorium, and a Master of Music Studies from the same university – where he has now completed the degree of Bachelor of Laws at Queensland University of Technology with first class honours – where his grade point average for his Master of Music Studies was over 6, and his grade point average in his Bachelor of Laws studies was greater than 6 – where he has worked extensively both on a paid and on a pro bono basis as a professional musician at a very high level – where he has worked as a paralegal at a large Brisbane solicitors’ firm and as an assistant to a practising barrister – where both in his affidavit evidence and in his oral testimony he has not sought to minimise the character of the conduct in which he engaged or to forego responsibility for it – where he has shown a thorough insight into his behaviour in his early twenties and exhibits a mature understanding about the significance to him and to his life of that behaviour – where the evidence shows that in the years since the offences were committed, the appellant has matured considerably – where he has changed from a confused young man to a mature adult who has demonstrated proficiency in his studies as a musician and as a budding lawyer – where, certainly at the present date, 10 years after the relevant conduct, there is no basis upon which either the conduct which constituted the offences or the fact of his guilt of a criminal offence should affect a judgment that the appellant is a fit and proper person to be admitted to the legal profession. Appeal allowed. Decision of the Legal Practitioners Admissions Board be set aside. Declare that the matters contained in the applicant’s application to the Board do not, without more, adversely affect an assessment as to whether the appellant is a fit and proper person to be admitted to the legal profession under the Legal Profession Act 2007 (Qld)

Queensland Building and Construction Commission v Turcinovic [2017] QCA 077 ; [2017] 18 QLR (16/4234) Morrison and Philippides JJA and North J 28 April 2017

General Civil Appeal – where an application by the appellant for summary judgment was refused by a District Court judge – where the claim and statement of claim as originally filed, the appellant sought recovery from the respondent of $214,464.55 under s 71(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCCA) – where the respondent carried out residential construction work – where there was a policy of insurance – where in the proceedings the appellant sought to recover from the respondent $214,464.55 being payments made by it in respect of the claims as payments on a claim under the insurance within section 71(1) of the Act – where in his amended defence the defendant pleaded in respect of the claimed amounts, that the costs claimed were “so unreasonable so as to make the monies paid out not a payment on a claim under the insurance scheme” – where the review of the decisions in this court referred to by her Honour below, and the parties before us since the decision of Mahony v Queensland Building Services Authority [2013] QCA 323, confirm that Mahony remains an authoritative statement of the law and of the liability of a building contractor to pay to the Commission the amount of any payment made “on a claim under the… scheme” under s 71(1) QBCCA – where in the circumstances of this matter, s 71AC of the Act controlled the tendering of rectification work – where the evidence before her Honour was that tenders were obtained in respect of the rectification work for each of the six properties – where the evident purpose and intent of s 71(1) in the statutory context identified by Gotterson JA in Mahony is that the recovery of the debt authorised by the section is not to become bedevilled by the factual convolutions that can emerge in actions in courts, tribunals or arbitrations for recovery of reasonable and necessary costs of defective work – where the Act contains provisions which the Parliament determined are appropriate to establish a scheme that balances the interests of homeowners and building contractors, and provides for debt recovery after the claim process established by Parliament has culminated in a payment – where her Honour erred in not properly giving effect to s 71(1) of the Act as that section should be understood – where the appellant’s submission is accepted that the respondent has “no real prospect of defending” the appellant’s claim nor has it been demonstrated that there is any need for a trial and there should be judgment for the appellant. Appeal allowed. Orders below set aside and in lieu it be ordered that there be judgment for the appellant against the defendant in the sum of $214,464.55 together with interest. Costs.

fingerprint.jpgCRIMINAL APPEALS

R v MCK [2017] QCA 056 (16/234) Holmes CJ and Gotterson JA and Ann Lyons J 7 April 2017

Appeal against Conviction & Sentence – where the appellant was convicted on his plea of guilty to one count of maintaining an unlawful sexual relationship with a girl under 16 years (W), with an aggravating circumstance – where the appellant now denies his guilt – where the appellant maintains his guilty plea was not freely entered but was induced by wrong legal advice from his barrister and from a clerk represented to him as a lawyer – where the appellant asserts counsel did not take proper instructions from him – where the appellant asserts that he was unaware of the nature of the charge to which he pleaded guilty and the allegations on which it was based – whether a miscarriage of justice has occurred – where the major difficulty in finding the facts in this case is that there were compelling reasons for doubting the veracity of all three witnesses who gave oral evidence: the appellant, Mr Rosser (his former barrister) and Mr Reichman (the latter’s clerk) – where the appellant’s insistence that he had not contemplated the possibility of imprisonment is difficult to reconcile with his claim of having questioned Reichman about whether the latter was sure he would not go to jail – where his police record of interview was not among the documents before the court; presumably its absence reflects one of many lapses in Mr Rosser’s filing system – where, nonetheless, it is impossible to believe that the appellant was not asked questions based on W’s extensive statement setting out her allegations against him - indeed, he admitted as much - or that the allegations failed to make any impression on him – where nor is it plausible that having been charged with seven counts of carnal knowledge, six of indecent treatment and, most significantly, one of rape, he would placidly have proceeded through committal without enquiring what they might have been about – where regrettably, however, it is not accepted Mr Rosser as an unfailing witness of truth either – where for present purposes, no more will be said that Mr Rosser’s attempts to explain and justify his statements in his advertising of his two “Services” were not credible – where in addition, his denial of the suggestion by the appellant’s counsel that he had left it to the morning of the sentence to take the appellant’s antecedents, and his assertion that he was merely formalising what was to be said, also sat badly with his later concession that he took information about the details of the appellant’s background at the last minute in order to have it “up to date” – where Mr Reichman agreed, under cross-examination, that he was convicted in August 2014 of two offences: the first, of engaging in legal practice when he was not admitted as a legal practitioner, over about five months at the beginning of 2013, and the second, of representing that he was entitled to engage in legal practice, over a period of about a year, ending in February 2014 – where after he was fined for those offences, he was convicted of a further set of offences occurring between September 2013 and 21 January 2015, of engaging in legal practice while not a legal practitioner; these offences related to his attending police interviews with clients of Mr Rosser’s – where remarkably he also he also admitted to conducting a summary trial in a Magistrates Court at Leeton in New South Wales in relation to another client of Mr Rosser’s in October 2012, before he had even received his law degree – where notwithstanding Mr Reichman’s discreditable history, particularly of deceiving courts by representing that he was a legal practitioner, he was the only one of the three witnesses giving oral evidence here whose answers appeared to be frank – where there was, at least, nothing he said that defied belief – where the question, then, is whether the appellant understood what was entailed in the count of maintaining an unlawful relationship to which he pleaded guilty – where the existence of one of Rosser’s very few file notes, recording the signing of the schedule of facts immediately before the details of the sentence imposed also gives some contemporaneous support for his evidence that it was he who obtained the appellant’s signature on the document – where it is not accepted that the appellant failed to appreciate the nature of the charge of maintaining an unlawful sexual relationship to which he pleaded guilty – where it is more probable that he was prepared to accept responsibility for the allegations made against him in connection with the maintaining charge, once the more damaging allegations of rape and sodomy had been withdrawn, in the hope that he might (not would) escape a custodial sentence – where not having contemplated (not surprisingly) the sentence of almost ten years imposed on him, he now regrets his decision – where the appellant was sentenced to nine years and 11 months imprisonment with parole eligibility after three years and four months – whether the sentence was manifestly excessive – where counsel for the respondent very properly conceded that the sentence of nine years and 11 months imprisonment was manifestly excessive; it was “unreasonable or plainly unjust” – where it is difficult to understand how the sentencing judge arrived at the sentence; it was certainly not the result of anything submitted by the prosecutor – where counsel for the respondent also conceded that the sentencing judge fell into error in finding the appellant “entirely responsible” for W’s present psychological state, when it was clear that she had been the victim of protracted sexual abuse as a child – where counsel for the respondent made helpful submissions, acknowledging a number of significant aspects of the case: that while the relationship was inappropriate, there was nothing to suggest that it was other than a result of mutual affection; that it entailed no breach of trust, because the appellant was not in any position of responsibility for W; that there was no power imbalance in their relationship or manipulation, often a feature of offending of the type; that the appellant was himself a young man of 21 when the relationship began; and that he had a relatively minor criminal history. Appeal against conviction dismissed. Application for leave to appeal against sentence granted. Appeal allowed. Set aside the sentence imposed at first instance. Substitute a sentence of four years imprisonment suspended after 12 months for an operational period of five years. Declare that the appellant has served a period of 365 days between 8 April 2016 and 7 April 2017 of that sentence.

R v SCR [2017] QCA 060 (16/238) Fraser and Morrison JJA and Mullins J 11 April 2017

Sentence Application – where the child applicant plead guilty to a substantial number of offences and was sentenced to serve concurrent terms of detention for three years and six months – where s 272(2) Youth Justice Act 1992 (Qld) (YJA) allows for release after the young offender serves 70 per cent of the detention term – where, in special circumstances that term may be reduced to between 50 and 70 per cent – where the applicant had a prejudicial upbringing and is institutionalised due to a history of petty crime – where the applicant assisted and cooperated with authorities – where the respondent concedes that an error was made by the sentencing judge when the sentencing judge failed to consider those matters as special circumstances – where on the application application before this Court the factors which the Crown said were relevant as special circumstances were: (a) the fact that Mr SCR has been institutionalised as a very young age, warranting his release at something less than 70 per cent; and (b) Mr SCR’s cooperation with law enforcement, in that he made admissions to many of the offences committed whilst in the community, and nominated his co-offenders; balanced against that is the fact that there was no cooperation in relation to the offences which occurred in the detention centre – where with respect, we consider that the Crown’s concession is properly and fairly made, at least as to the second factor – where for the purposes of the resolution of the application it is only necessary to refer to that factor – where reference was made by the Prosecutor to the admissions made by Mr SCR to police, as to his being the driver of vehicles on most of the occasions where houses were broken into and vehicles stolen – where however, the true nature of those admissions and cooperation is, as reflected in the Crown’s outline on this application, that he not only admitted his own conduct, but nominated his co-offenders – where here the crime might have been known, in the sense that someone knew their car had been stolen, and police found it, but the police did not know who the offender was until Mr SCR’s admission came – where likewise, police did not know the names of the co-offenders until the admission was made – where that form of cooperation would otherwise attract special leniency, and our view constitutes “special circumstances” for the purposes of s 227(2) of the YJA – where that would warrant some reduction from the 70 per cent default position, it would not warrant a reduction below 60 per cent because of countervailing factors – where that is the position adopted by the Crown and counsel for Mr SCR. Application for leave to appeal against sentence is allowed. The sentence imposed in the Childrens Court is varied by setting aside the order that the applicant is required to serve 70 per cent of the sentence of detention and instead ordering that the applicant is to te released from detention on a supervised release order after serving 60 per cent of the period of detention. Otherwise the orders of the Childrens Court are confirmed.

R v Iese [2017] QCA 068 (16/288) Gotterson and McMurdo JJA and Flanagan J 21 April 2017 

Sentence Application – where the applicant pleaded guilty to unlawfully doing grievous bodily harm and was sentenced to 18 months’ imprisonment to be suspended after serving four months for an operational period of two years – where there was evidence before the sentencing judge of goading conduct by the complainant – where the prosecutor described the applicant’s conduct as “largely unprovoked” but did not otherwise challenge the evidence – where the applicant did not rely upon the defence of provocation but claims the complainant’s behaviour was a material consideration in formulating the sentence – where the sentencing judge described the offence as “unprovoked” – whether the sentencing judge failed to take the complainant’s conduct into account – where in the course of argument, counsel agreed that these grounds of appeal were to be understood as contending that the learned sentencing judge had erred in exercising the sentencing discretion in a House v The King (1936) 55 CLR 499 sense by failing to take into account a material consideration, namely, that in assaulting the complainant, the applicant had responded to goading conduct on the former’s part – where the description of the conduct of the complainant as depicted on the CCTV footage paints a picture of some aggression on his part towards the applicant – where he put down his beer and then took a number of steps very quickly towards the applicant – where such was the manner of his approach that one of his companions tried to push the complainant from his course – where notwithstanding, he managed to invade the applicant’s personal space – where that the applicant had been approached in this manner was a consideration relevant to the criminality of his conduct, and was a consideration that ought appropriately to have been taken into account in formulating his sentence – where it is not clear whether his Honour’s description of the offence as “unprovoked” was meant in a narrower sense of provocation as defined in s 268 Criminal Code (Qld) or in a wider sense as would include goading conduct falling outside the definition – where either way, his Honour erred – where if he used the word in the narrower sense, he must not have turned his mind to whether the applicant was goaded into reacting as he did and thereby failed to take that into account – where if he used it in the wider sense, then his finding not only contradicts the only material that was before him on the topic but also reveals that he failed to take the relevant consideration into account – where it is not in dispute that the sentence of 18 months’ imprisonment is appropriate – where the real issue for this Court is whether the applicant ought to be required to serve any more of it than the 12 days he has now served – where there are aspects to the applicant’s conduct and personal circumstances which are out of the ordinary – where the high degree of remorse reflected in the letter of apology and offer of compensation and the applicant’s conduct in returning to the Tavern to give his details, illustrate that – where those factors and the applicant’s minimal criminal record indicate that the likelihood of his re-offending is very low – where due recognition ought also be given to the complainant’s goading conduct which immediately preceded the assault upon him. Leave to appeal granted. Appeal allowed. Sentence imposed on 17 October 2016 be set aside. The applicant is sentenced to 18 months’ imprisonment to be suspended after serving 12 days for an operational period of two years. It is declared that the applicant has served 12 days’ imprisonment under the sentence from 17 October 2016 to 28 October 2016.

R v Knox [2017] QCA 074 (16/327) Morrison and Philippides JJA and Atkinson J 28 April 2017 

Sentence Application – where the applicant pleaded guilty to one count of robbery in company with personal violence, one count of armed robbery in company, one count of receiving stolen property with a circumstance of aggravation and one count of robbery in company – where separate sentences were imposed in respect of each of the offences, to be served concurrently – where a five year head sentence was imposed on both co-offenders (the applicant and Lowe) in respect of the armed robbery in company – where the applicant submitted the primary judge failed to account for his lesser role in the offending – whether the sentencing judge erred in sentencing both co-offenders to the same head sentence – where are a number of factors which suggest that the applicant’s offending, while serious, was not quite as serious as that of Lowe – where in none of the offences which they committed together could the applicant’s actions have been said to have been more violent or serious than that of Lowe and indeed, if the unchallenged submission as to their respective roles made to the sentencing judge were to be accepted, the contrary is the case – where it is true that both were young and had deprived backgrounds and both had prior contact with the criminal justice system – where there were a number of differences in their prior criminal history which were not correctly referred to by the learned sentencing judge – where in all of the circumstances, taking into account the five years’ imprisonment imposed upon Lowe, which was conceded to be an appropriate sentence, and taking into account all the offending committed by the applicant and his youth and criminal history, the appropriate sentence to be imposed on the applicant is four years’ imprisonment. Leave to appeal granted. Appeal allowed. The sentence imposed on count 2 on the indictment is set aside only to the extent that he be sentenced on count 2 to four years imprisonment to be eligible for parole immediately, that is after having served one-third of his sentence, 16 months.