Court of Appeal Judgment Summary Notes

CIVIL APPEALS

O’Hara v Sims [2009] QCA 186 Keane JA Muir JA Fraser JA 10/07/2009

General Civil Appeal from the Supreme Court, Trial Division — Defamation — Actions for Defamation — Privilege — Qualified Privilege — The appellant (O’Hara) brought an action for damages for defamation against Sims arising out of a letter published by Sims to members of the Gold Coast Turf Club during the election for membership of the Club’s Committee — Sims’ letter concluded with the words “In my view this man is now unworthy of a position on our committee. I will not be voting for Brian O’Hara” — The jury concluded that the imputation that O’Hara had engaged in conduct making him unworthy to be a Committee member was not conveyed by the letter, and that other alleged imputations, including subordinating the due performance of his duty as a committee member to his interest in self promotion, were conveyed by the letter but were not defamatory — With consent of the parties, the trial judge then determined the issue as to qualified privilege and gave judgment for Sims — On Appeal — The jury was entitled to find that the letter was only Sims’ view that O’Hara did not deserve re-election to the committee — In relation to the alleged imputation that O’Hara subordinated the due performance of his duty as a committee member of the Club to his interest in self-promotion was defamatory, the jury’s finding must have concluded that O’Hara owed the club a duty — The jury’s finding that this imputation was not defamatory of O’Hara was one that no reasonable jury could make — Malice was not alleged against Sims — The conclusion that the publication was reasonable depended significantly upon the degree of seriousness of the defamatory imputations conveyed by the letter — It was open to the trial judge to conclude that the imputations should be characterised as being “anodyne”, in the sense that, if defamatory, they were nevertheless objectively unlikely to provoke a strong response — The characterisation of the imputations as lacking seriousness was soundly based on an objective assessment of the character of the imputations and the circumstances of their publication — HELD: Appeal dismissed with costs.

Munzer v Johnston & Anor [2009] QCA 190 McMurdo P Chesterman JA Douglas J 14/07/2009

General Civil Appeal from the Supreme Court, Trial Division — Torts — Negligence — Interference with Discretion of Court Below — Munzer was injured in a motorcycle accident involving Johnston — She brought an action for damages in negligence against Johnston and the RACQ, with whom Johnston had third party insurance — The appellants admitted liability however the quantum of damages was determined after a two day trial at $1,299,459.63 — Munzer was assessed as having a whole person impairment of 36 per cent — On Appeal — Common ground at trial and on appeal that Munzer was entitled to some home modification costs to meet her changed needs resulting from the injuries she received in the accident — The trial judge allowed for $90,000 for this head of damage, and considered that this amount fairly reflected the actual costs that Munzer would reasonably incur in providing appropriate accommodation adapted for her accident-caused disabilities — The primary judge’s method of assessing the costs of Munzer’s modified accommodation was somewhat unorthodox — Primary judge noted that it was common ground that Munzer needed a hydrotherapy pool constructed at her home — In total his Honour allowed $136,710 for costs associated with the pool — The judge was entitled to allow the cost of the purchase of a barn (for residential purposes) and its modification — Judge awarded $8,000 for the construction of the barn — No evidence led at trial of the costs associated with the construction — Trials are conducted on evidence and judges should not make “guesstimates”, even modest ones, in the complete absence of evidence — Error does not mean the appeal should be allowed — In the context of the overall award the amount of $8,000 is so small that, unless the appellants were successful in their other attempts to challenge the damages award, it would not justify this Court’s interference — Evidence that Munzer was a regular user of cannabis, however no evidence that she was a heavy user of methylamphetamine — Based on uncontradicted evidence from an occupational therapist his Honour adopted 15 hours per week as Munzer’s long term average requirement for care — No demonstration that his Honour’s approach to Munzer’s future care needs was flawed — HELD: Appeal dismissed with costs.

R v Ogawa [2009] QCA 201 Muir JA Fraser JA Wilson J 17/07/2009 (delivered ex tempore)

Appeal from Bail Application from the Supreme Court, Trial Division — Criminal Law — Bail — Revocation, Variation, Review and Appeal — Appeal by the Commonwealth Director of Public Prosecutions — Respondent (in this hearing) was convicted after trial of two counts of using a carriage service to harass and two counts of using a carriage service to make a threat — Ogawa sentenced to six months imprisonment on each count and ordered to be released after serving four months imprisonment subject to certain conditions — The learned trial judge in his sentencing remarks observed that Ogawa’s behaviour in court had been “disgraceful”, that she had not been legally represented and that her conduct had resulted in her exclusion from the court for most of the proceedings — Reference was also made to remarks by a psychiatrist having diagnosed Ogawat as having a personality disorder — A judge of the Supreme Court, Trial Division, granted Ogawa bail pending the hearing of the appeal — On Appeal — Ordinarily, in order to establish “exceptional circumstances” it will be necessary to show that “there are strong grounds for concluding that the appeal will be allowed” and that the appellant may be required to serve an unacceptable portion of his or her sentence before the appeal can be heard — In his summing up the learned trial judge highlighted the evidence of the persons against whom the threats were made by informing the jury that they “will understand that counts…focus to some extent on the evidence of those witnesses and that of [the Registrar of the Federal Court]” — The judge’s directions as to the elements of the offences of making threats were thus, arguably, tainted by the judge’s intimation that the evidence of the persons to whom the threats were directed was of relevance in determining whether the elements of the offences had been proved — The evidence, including evidence of the Registrar that he found the contents of one of the respondent’s emails “incredibly chilling” and in which he expressed his concern for the safety of residents of the university’s accommodation in which Ogawa was residing, was likely to have distracted the jury from focussing on the question of whether Ogawa had the requisite intention at the relevant time — It is thus strongly arguable that inadmissible and potentially highly prejudicial evidence was admitted and that the summing up included material errors — Another ground of appeal appears to have substance — It is to the effect that the learned trial judge failed to direct the jury that Ogawa’s statement that she “had a panic attack” was relevant to Ogawa’s intention at the time of the alleged threats — The evidence of Ogawa’s emotional and mental state at the time the alleged offences were committed were highly relevant to the jury’s determination of Ogawa’s intention for the purposes of the threat charges and relevant to the harassment charges having regard to the fault elements of intention and recklessness — There was evidence from witnesses that also supported a conclusion that Ogawa was in an unstable, and possibly deteriorating, mental state — The summing up by the trial judge was silent on the relevance of the evidence to the assessment of Ogawa’s state of mind — The trial judge treated the evidence in relation to “the panic attack” by directing that it was potentially an admission by Ogawa that she was the sender of the emails — There is thus an argument, particularly having regard to the lack of representation of Ogawa and, indeed, her absence from the trial, that insufficient was done by the trial judge to maintain a proper balance in the summing up by directing the jury’s attention to matters which may have been detrimental to the prosecution case but favourable to the accused’s — A summing up must be balanced and fair — Of course, it is impossible and also undesirable, to express any definitive views about this and most of the other grounds of appeal bearing in mind the nature of the appeal, the material before the Court and the limited extent of the argument — The Court’s conclusion based on limited material and brief argument, is that the prospects of some of the grounds of appeal are considerably greater than the primary judge thought — Of particular concern that the respondent may have been denied procedural fairness — HELD: Appeal dismissed.

Sequel Drill & Blast P/L v Whitsunday Crushers P/L [2009] QCA 218 Chief Justice Fraser JA Chesterman JA 31/07/2009

General Civil Appeal from the District Court — Contracts — Building, Engineering and Related Contracts — The Performance of Work — Time — Remedies — Appellant (Sequel) was to provide drilling and blasting services for the respondent (Whitsunday) — Trial judge found that Sequel was entitled to recover $50,590.99 from Whitsunday for this work completed under the contract, however the trial judge also found that Whitsunday was entitled to recover $48,696 from Sequel as damages for breach of contract leaving a net sum of $1,894.99 in favour of Sequel — The contract did not specify the number of blasts or “shots” to be performed by the appellant — Trial judge found that Sequel had breached its contractual obligation to Whitsunday by leaving the site before shot 8 was completed leaving Whitsunday with loss of shifts — No challenge to the trial judge’s finding that there was an implied term that Sequel would provide its services within a reasonable time — The written part of the contract did not define the scope of the work, so the issue turned on the oral parts of the contract — On Appeal — Evidence from Whitsunday’s senior project manager was accepted and not relevantly disputed that Sequel agreed to drill and blast as and when Whitsunday required rock to comply with its obligations to supply crushed rock to a third party — No effective challenge to the evidence that shot 8 was required — No evidence that Whitsunday, acting reasonably, could have caused shot 8 to be performed at an earlier time — Evidence that Whitsunday charged $5,170 to the third party for hiring to it some of the equipment that was claimed to have been costs that Whitsunday incurred during the period when it was not working due to the failure to complete shot 8 — HELD: Judgment varied by increasing the amount of the judgment in favour of Sequel by $5,170 to $7,064.99, otherwise the appeal dismissed.

Venz v Moreton Bay Regional Council (formerly Caboolture Shire Council) [2009] QCA 224 Muir JA Mullins J Philippides J 4/08/2009

Application for Leave to Appeal from the District Court (Civil) — Limitation of Actions — Extension of Time in Personal Injuries Matters — Venz alleged that he was injured on 14 August 2004 when he fell into an unfenced drainage culvert about which no warning signs were placed — He gave a Part 1 Notice of Claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) on 24 December 2004 — The Council (MBRC) denied liability — MBRC signed a form of consent order on 3 August 2007 that gave leave to Venz to initiate proceedings pursuant to PIPA with such proceedings to be filed by a specified date — A Claim and Statement of Claim were sent to the Court for filing on 9 August 2007 — The documents were returned to Venz’s solicitors the same day bearing a 9 August date stamp but no court seal — The primary judge held that Venz’s solicitors attempted to file the documents on 9 August 2007 and, by implication, that the attempt had failed — The documents were then filed on 23 June 2008 with sealed copies served on MBRC’s solicitors — On Appeal — No challenge that the filing of the documents was not effected within time — Primary judge was rightly concerned with the inadequacy of the evidence about the cause of the failure of the attempted filing but found that there was an attempt at filing — On the construction that was common ground all that resulted from the failure to file on or before the stipulated date was that Venz did not have leave to initiate proceedings or any continuing consent to the granting of leave and Venz had to make a fresh application for leave if he wished to commence the proceeding — Any breach of contract did no more than give MBRC the right to claim damages — The granting of leave to commence proceedings will result in no prejudice to MBRC beyond the loss of the limitations defence — HELD: Application and appeal allowed, Orders at first instance set aside, Leave to commence proceedings granted and costs.

Boss & Ors v Hamilton Island Enterprises Ltd [2009] QCA 229 Fraser JA Chesterman JA Wilson J 11/08/2009

General Civil Appeal from the Supreme Court, Trial Division — Landlord and Tenant — Covenants — Not to Assign or Sublet — Lessor’s Consent — Not to be Unreasonably Withheld etc — The appellant (HIE) hold a Perpetual Country Lease over the whole of Hamilton Island — In 1984 HIE contracted to a Mr George Harrison a sub-lease of 2.26 hectares of that land — Mr Harrison built a large and expensive house on his land — He died in 2001 and the sub-lease was assigned to the trustees of his estate — This sub-lease was subsequently replaced by one granted by HIE to the trustees in November 2007 on substantially the same terms but with a slight adjustment to the boundaries — The term of the sub-lease was for nearly 70 years with an option to renew the term for a further period of 99 years — The effect of s 121(1)(a)(i) of the Property Law Act 1974 (Qld) is that HIE’s consent to an assignment of the sub-lease is not be unreasonably withheld — In January 2008 the trustees contracted to sell the property for $8.5 million to Northaust subject to HIE’s consent to the assignment — HIE consented to the proposed assignment subject to conditions including that Northaust first execute a deed which would bind it to comply with an extensive set of regulations promulgated by HIE to govern the conduct of residents and others on the island (HIE’s regulations) — Northaust was not prepared to bind itself to comply with the regulations and HIE refused consent — The trial judge declared that HIE’s withholding of consent was unreasonable under the PLA — The trustees assigned the lease and the minister consented to the transfer — On Appeal — The trial judge was correct in concluding that HIE’s regulations would impose obligations upon the sub-lessee which substantially eroded the rights under the sub-lease, including by requiring that any building or further development be only as HIE permitted and by permitting HIE to refuse entry to the sub-lessees’ invitees or to have them removed from the island — In view of the substantial length of the term of the sub-lease and the option, it was likely that at least the sub-lessee would in fact seek to assign the sub-lease — The degree to which HIE’s regulations would impose upon the sub-lessee is unaffected by any provision of the agreement for lease — It depends only upon the proper construction of the terms of the sub-lease — It was HIE’s inflexible policy, rather than any reason personal to Northaust, which was the only justification for HIE’s insistence upon the condition that Northaust covenant to be bound by HIE’s regulations — In January 2008 the trustees’ solicitors wrote to HIEs employed solicitor seeking HIE’s consent to the proposed assignment of the sub-lease — On the same day HIE’s solicitor responded that its consent was subject to conditions including the execution of an enclosed deed and wrote “please note we will not accept any changes to this document” — HIE’s solicitor wrote in April on Northaust’s refusal to accept the deed that HIE reserved the right to refuse the assignment on the further grounds that Northaust was not respectable with this word meaning, inter alia “of fair social standing” — In summary HIE made it perfectly clear that regardless of the identity of the assignee HIE would only consent if the assignee covenanted to be bound by HIE’s regulations — HIE sought to obtain a substantially more advantageous contractual position than that upon which it had insisted at the time of the grant — HIE sought to deprive the sub-lease of its assignability — HELD: Appeal dismissed with costs.

Hedley Commercial Property Services P/L v BRCP Oasis Land P/L [2009] QCA 231 McMurdo P Chesterman JA Dutney J 14/08/2009

General Civil Appeal from the Supreme Court, Trial Division — Statutes — Operation and Effect of Statutes — In October 2007 the appellant (Hedley) and the respondent (BRCP) became parties to a Call and Put Option Deed (deed) the subject matter of which was vacant land described as ‘proposed Lot 203’ (‘the lot’) (what was originally Lots 788 and 21 which had reconfiguration approval from the Council to beome Lots 201, 202 and 203) — The deed conferred on Oasis a put option to require Hedley to purchase the lot by executing the contract if Hedley did not exercise the call option by the specified date — The price payable under the contract was $8,000,000 — The deed was obviously not a contract for the sale of the lot or anything else — It is an agreement, having the effect of a deed — Once the call or put option had been exercised, and the contract executed, a contract for the sale of property would have come into existence, but the deed was not such a contract — Primary judge declared that the subject matter of the deed was not residential property — On Appeal — The phrase “the development is other than for residential purposes” requires development to be for a purpose which is not residential — This construction has the result that such vacant land is residential property unless the approved development is for something that is not residential property, in which case it can be certain that a contract for the sale of the vacant land will not be one for residential property — Consent had been given pursuant to which a high rise tourist complex had been built and was operated on what became Lot 202 and what was originally part of Lot 788 — The consent was current when the parties executed the deed — No definition of “residence” or “residential” in PAMDA or IPA — The word must be given its ordinary meaning which requires the occupation must be “permanent or long-term” — The trial judge was correct in determining the development was not for residential purposes — The approval must have applied to the whole of both Lot 788 and Lot 21 — The whole of the area of both Lot 788 and Lot 21 was allowed to be used for the tall building “and ancillary uses” — Apparent that the approvals for the Oasis development did apply to the whole site as did a number of the conditions of that approval — The approved development was for other than residential purposes and was current when the option deed was executed by the parties — Section 17(3)(b)(ii) of PAMDA applied so that the contract was not a relevant one for the purposes of that Act — HELD: Appeal dismissed with costs.

Sevmere P/L v Cairns Regional Council & Anor [2009] QCA 232 McMurdo P Holmes JA Dutney J 14/08/2009

Planning and Environment Appeal — Planning Schemes and Instruments — Sevmere owns land in Cairns which it wishes to develop — In 2007 it made a development application (superseded planning scheme) — The Council gave an acknowledgment notice which stated that code assessment was required — The Department of Natural Resources and Water (DNRW) was identified as one of the two referral agencies for the application — Under the superseded planning scheme, all of the land to be developed had been contained in the Residential 3 zone — Under the existing planning scheme a portion was designated as “Area Zoned for Conservation” — The DNRW directed the Council to refuse that part of the development application which related to the conservation-zoned portion of the land but had no requirements for the remainder — Council approved the development with the exception of that part of it intended to take place on the land zoned for conservation — Council advised Sevmere that it would have approved the whole of the development but for the DNRW’s direction — Under s 5.4.2 IPA compensation is provided for land-owners where there has been a change in the planning scheme reducing the value of land to be developed — In the P&E Court Sevmere and the DNRW sought competing declarations as to which planning scheme applied to DNRW’s assessment of the application — Primary judge said that the right to compensation was highly conditional and referred to the clear meaning of s 3.3.15(1) of the IPA which referred to the “planning scheme in force, when the application was made” — On Appeal — The existing words of s 3.3.15(1)(b) will not bear either of the constructions for which Sevmere and the Council contend — The result they seek could only be achieved by addition of an exception to the section so as to remedy the omission to deal with the circumstance of a development application (superseded planning scheme) — The third limb of the Diplock test in Wentworth Securities Ltd v Jones [1980] AC 74 states “it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law” — The third limb is not met in this case as it is not obvious that the words proposed (by Sevmere and the Council) are those which the legislature would have inserted had it considered the matter — The proposed alteration falls over the boundary of construction into legislation — HELD: Appeal dismissed with costs.

CRIMINAL APPEALS

R v Kelly [2009] QCA 185 McMurdo P Keane JA Jones J 10/07/2009

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — Applicant (Kelly) pleaded guilty to one count of indecently dealing with a child with the circumstances of aggravation that she was under 12 and in his care — Sentenced to three months imprisonment suspended forthwith with an operational period of 12 months — Sentencing judge also held that Kelly should be subject to the restraints of a reportable offender — The child was a short-term resident at a child care facility run by Kelly and his then wife from their home — Kelly put his hand underneath the child’s underpants and briefly touched her on the vagina — The child was sleeping and unaware of the events — At sentence the child was oblivious to the fact that the offence had occurred — The incident was an isolated act — On Appeal — The judge wrongly fettered his sentencing discretion in considering that a custodial sentence, even if fully suspended, must be imposed — The remarkable concatenation of exceptional mitigating features in this case, including Kelly’s prior good history and subsequent complete and long-standing rehabilitation, complete cooperation and early plea and the absence of any harm at all to the child meant that unusually, the most appropriate sentence is a 12 month good behaviour bond — The offence to which Kelly pleaded guilty was, nevertheless, serious — The sentence falls within s 5(2)(b) of the Penalties and Sentences Act 1992 (Qld) and so Kelly would not be a reportable offender under the Act — HELD: Application granted, Appeal allowed, Sentence imposed at first instance set aside, Conviction recorded, Applicant released under a 12 month good behaviour bond.

R v Lenahan [2009] QCA 187 McMurdo P Fraser JA Jones J 14/07/2009

Appeal against Conviction and Sentence Application from the District Court — Verdict Unreasonable or Insupportable Having Regard to Evidence — Appellant (Lenahan) found guilty by a jury of 20 counts of fraud and sentenced to concurrent terms of five years imprisonment for the seven convictions of fraud of property of value of $5,000 or more and concurrent terms of two years imprisonment for the remaining 13 counts — A further order was made for the forfeiture of 15 cattle to the Commissioner of Police Queensland — Lenahan was the sole director of a company called Pacific Drive — Between March 2005 and February 2006 Lenahan spoke to each of the numerous complainants about buying cattle or other property, or acquiring services — In most cases no arrangement was concluded until a contract was made between the complainant concerned and the company, represented by Lenahan — On Appeal — Most counts concerned the sale of cattle — For each contentious count the evidence did not support a finding beyond reasonable doubt that a complainant parted with his or her cattle otherwise than pursuant to a contract for the sale of the cattle which identified the company as the buyer — On two counts the appellant conceded that the evidence supported conclusions that Lenahan had contracted personally with the complainants — The jury’s acquittal of Lenahan of five of the charges and the intelligent terms of their queries to the trial judge support the conclusion that Lenahan was not prejudiced by the inappropriate presence of many incompetent charges and much evidence directed only to those charges — Rejection of the substitution of verdicts under s 668F(2) of the Criminal Code 1899 (Qld) as a basic denial of justice — All but two of the convictions on Lenahan set aside, the Court is obliged to re-sentence — No orders sought in relation to the 15 head of cattle — HELD: Quash convictions and enter verdicts of acquittal on 20 counts, Dismiss the appeal from the convictions on two counts, Grant the application for leave to appeal against sentence and order that Lenahan not be punished in respect of those counts.

R v Beckett [2009] QCA 196 McMurdo P Fraser JA Cullinane J 17/07/2009

Appeal against Conviction from the District Court — Appellant (Beckett) was convicted of unlawfully doing grievous bodily harm to a patron of a nightclub — Beckett was in charge of security of the club — The patron suffered a fractured jaw outside the nightclub — Three others were working at the club at the time of the assault, Kuzmanovic, Power and Mailman — The Crown case that Beckett delivered the damaging blow was dependant on these co-employees — Prosecutor tendered a videotape which consisted of three segments — Defence counsel sought to have the third segment shown to the jury and submitted that the videotape showed the same group of club employees, excluding the appellant, within 20 minutes of the alleged assault acting in a similar sort of manner with another person — The trial judge directed the jury that this section of the tape was not relevant and that they should not have regard to it — On Appeal — The expressed purpose of defence counsel’s proposed cross-examination upon the videotape was, in summary, to elicit evidence that a very short time after and at much the same place as the violent assault of the patron alleged against Beckett whilst the three co-employees were present, the latter three club employees illustrated their propensity for violence of the kind charged against Beckett by their participation in a similar violent altercation with another patron of the club — Cross-examination was disallowed before any question was framed or asked — Not clear whether the evidence potentially might have demonstrated a “striking similarity” with the assault of which Beckett was accused – The trial miscarried because the trial judge prevented defence counsel from exploring a legitimate line of cross-examination of a critical Crown witness — HELD: Appeal allowed, Quash the conviction, Order a new trial.

R v Gordon; ex parte Cth DPP [2009] QCA 209 Chief Justice Keane JA Wilson J 24/07/2009

Sentence Appeal by Cwth DPP from the District Court — Procedure — Notices of Appeal — Time for Appeal and Extension Thereof — On 4 February 2009 the respondent (Gordon) was convicted of his own plea of guilty to counts of using a carriage service to access child pornography material and child abuse material (Commonwealth offences) and to knowingly possessing child exploitation material (Queensland offence) — For each of the Commonwealth offences Gordon was sentenced to 12 months imprisonment to be released forthwith on a good behaviour bond — Gordon is a qualified pharmacist, married and his wife is supportive of him — On Appeal — The DPP said that the delay in question was only six days and that there was no reason to think that Gordon had suffered any prejudice by reason of this brief delay — The only reason put forward by the DPP to explain the delay in filing the notice of appeal is that the learned sentencing judge’s sentencing remarks were not provided to the DPP until 19 February 2009 — No explanation why the notice of appeal was not filed until 10 March 2009 — No evidence that the DPP’s officers were unable to make the necessary assessment of the merits of an appeal during the period between 19 February 2009 and 4 March 2009 (the time for the filing of the notice of appeal) — Respectfully of the opinion that his Honour’s approach was erroneous in that his Honour proceeded on the footing that the five year maximum penalty under the Criminal Code 1899 (Qld) should be regarded as fixing the relevant maximum — Not persuaded that the error is of such seriousness as to warrant the exercise by this Court of its discretion to expose Gordon to double jeopardy — The explanation for the delay by the DPP in instituting this appeal is unsatisfactory — No good reason has been shown for the Court to override the need for finality in the administration of justice and expose the respondent to double jeopardy — HELD: Application refused, Notice of appeal struck out.

R v Ottley [2009] QCA 211 Holmes Muir JJA Dutney J 24/07/2009

Appeal against Conviction and Sentence from the District Court — Appellant (Ottley) was convicted after trial of one count of torture (count 1), three counts of assault occasioning bodily harm, one count of dangerous operation of a vehicle (count 5), once count of deprivation of liberty and one count of grievous bodily harm — Ottley was acquitted of other criminal offences including unlawful assault and rape — Learned judge in sentencing accepted that the offences were committed over a limited period of approximately one month and that the relationship with S was a difficult one — She was an alcoholic, had significant mental health issues, abused alcohol and prescription drugs and took illicit drugs — Ottley was effectively sentenced to six years imprisonment as all sentences were to be served concurrently, disqualified from holding or obtaining a driver’s licence for a period of two years and declared to be convicted of serious violent offence in respect of counts 1 (torture) and 9 (unlawfully doing grievous bodily harm) — S, the victim, gave evidence at trial — She had long-standing problems with alcohol use and was diagnosed, on her account, as manic depressive — On Appeal — Ottley was self-represented on appeal — The verdicts were open to the jury on the evidence; they were not unreasonable — Ottley was preoccupied with the conviction appeal and did not assist in submission in relation the application for leave to appeal against sentence — The factual circumstances of the cases of R v HAC [2006] QCA 460 and R v B; ex parte A-G [2000] QCA 110 were significantly worse than what was involved here — There was no use of, in this case, of weapons and nor was there the degree of calculated sadism and perversion involved in HAC — Ottley’s conduct seemed to have been more a series of angry responses in a relationship involving some very considerable pressures — A proper starting point for acts of the type involve here might have been between five and seven years, if a serious violent offence declaration were to be imposed — The mitigating factors, such as they were, and, more particularly, the pressures the sentencing judge identified in the volatile relationship, a sentence at the lower end of that range should be imposed — HELD: Appeal against conviction dismissed, Application for leave to appeal against sentence allowed, On count 1 sentence of five years imprisonment with a serious violent declaration substituted, Sentence on count 5 affirmed, Conviction on counts 4,6,7,8 and 9 affirmed, but sentences imposed on each of those counts set aside, with no further penalty imposed.

R v Chinmaya [2009] QCA 227 McMurdo P Fraser JA Wilson J 7/08/2009

Sentence Application from the Supreme Court, Trial Division — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — Chinmaya convicted on his pleas of guilty of possession of the dangerous drugs methylamphetamine and MDMA with a circumstance of aggravation that the quantity of the dangerous drug exceeded two grams — The learned sentencing judge recorded convictions and sentenced Chinmaya to concurrent terms of 12 months, with parole release date on 26 August 2009 after he had served three months — Chinmaya’s offending had come to the knowledge of police officers on 11 December 2007 when they conducted a search of the residence where he was then living with a number of other people — The police found in the bedroom occupied by him clip-seal bags containing speed and ecstasy tablets — In a cupboard in an adjoining bedroom the police found a plastic container containing a clip-seal bag which held 88 tablets containing 6.027 grams of pure MDMA — The sentencing judge observed that Chinmaya’s plea of guilty in respect of the 88 tablets caused some difficulty as he claimed he did not know they were present in that room — The bedroom had been previously occupied by Chinmaya’s girlfriend — Women’s shoes were found in the cupboard where the tablets were found, the room was apparently unoccupied and undergoing some renovation, the plastic container contained residue of a female person’s cosmetic and Chinmaya’s fingerprints were not found on either receptacle — The sentencing judge accepted that the independent evidence made it clear that the Chinmaya did not have knowledge of the presence of the tablets, however he was in control of the premises where the drugs were found — On Appeal — The learned sentencing judge attributed particular significance to the conclusion that Chinmaya had used the schedule 1 drug methylamphetamine whilst he was employed as a security officer — Chinmaya was employed in his own business as a removalist and involved in security work — At the sentence hearing there was no suggestion that Chinmaya had used methylamphetamine and there was no challenge to his assertion that the very small quantity of methylamphetamine found in his bedroom was not his — References were tendered which included statements that he was a respected and liked employee and these offences were out of character — This Court obliged to exercise the sentencing discretion afresh — The appropriate inferences were that Chinmaya and others jointly purchased the tablets for their personal use, someone other than Chinmaya mislaid them for quite a long time before the police found them and Chinmaya did not know that they were in the house — Chinmaya had never been imprisoned, had no prior convictions for drug offences and pleaded guilty — No commercial element in Chinmaya’s possession of the drugs and rehabilitation loomed large as an important factor — HELD: Deterrent sentence is met by recording a conviction and imposing a head sentence of twelve months’ imprisonment with immediate parole.

R v Keenan [2009] QCA 236 McMurdo P Keane JA Fraser JA 21/08/2009

Sentence Application from the Supreme Court, Trial Division — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — Keenan was convicted upon jury verdict of doing grievous bodily harm with intent to do grievous bodily harm and acquitted of attempted murder — The Crown case was that Keenan, his two co-accused, and another man were parties to a plan to exact revenge on Coffey who had misappropriated $6,000 or $7,000 due to Keenan for illicit drugs delivered by Coffey to a purchaser at Keenan’s request — Once Coffey was located, Keenan and his companions ambushed him, and a co-accused fired five shots at the fleeing Coffey, rendering him irreversibly paraplegic — There was no evidence that the use of a gun had been discussed with Keenan — One of the companions was armed with a baseball bat and Keenan had sent text messages to Coffey’s female companion threatening them with serious physical violence — At the time of the offence Keenan was 32 years old and had a serious history of criminal activity including crimes of violence — On Appeal — Keenan organised the attack on Coffey — This was done with a view to inflicting grievous bodily harm on Coffey as a piece of gangland discipline — Coffey was pursued by Keenan with a fixed and cold-blooded determination — Keenan’s criminal history could legitimately be taken into account to show that Keenan has manifested in the commission of this offence a continuing attitude of disobedience of the law so as to indicate the need for a more severe sentence in the interests of deterrence and protection of society — HELD: Application refused.

R v Carlton [2009] QCA 241 McMurdo P Chesterman JA Mullins J 28/08/2009

Sentence Application from the District Court — Grounds for Interference — Carlton pleaded guilty to four counts of distributing child exploitation material and one count of possessing child exploitation material — Carlton was sentenced on 10 December 2008 to three years imprisonment with parole eligibility fixed after he had served 12 months — On Appeal — The principal question raised by this application was whether the amendments to the Penalties and Sentences Act 1992 (PSA) which came into effect on 1 December 2008 which came into effect on 1 December 2008 applied to the Carlton’s sentencing — The insertion of sections 9(6A) and 9(6B) set out the principles applicable when judicial officers exercise their sentencing discretion, and in effect removes the application of a term of imprisonment being a last resort for these particular offences — Two reasons for applying the subsections to Carlton at sentence — Firstly, the matter of R v Truong [2000] 1 Qd R 663 has been regarded as authoritative and followed, in particular the Court holding that Truong was to be sentenced according to the Act as it was at the time of the sentence — “It may generally be taken that a procedural statute is, in the absence of an indication to the contrary, to be construed as retrospective, that is to say that its application may relate to past events.”: from Truong — Secondly, s 204 PSA read in conjunction with s 14H(1) of the Acts Interpretation Act 1954 (Qld) requires that the Act as it is at the time of sentence is to be applied — This application is concerned with amendments to s 9 not with any provision which has increased penalties for the offences committed by Carlton — Section 9 PSA seeks to regulate the manner in which the discretion is to be exercised by an identification and weighting of factors to be taken into account and balanced out — A change to the factors, or a reordering of their priorities is not properly described as changing a substantive law — It affects only the manner in which judges go about exercising the discretionary power of sentencing — The distribution of material is a serious aspect of Carlton’s offending — Carlton distributed a very large number of appallingly depraved images — HELD: Application refused.

R v Pham [2009] QCA 242 Keane JA Chesterman JA Wilson J 28/08/2009

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — Pham pleaded guilty to one charge of distributing, one charge of possessing and two charges of knowingly possessing child exploitation material — Pham was sentenced to two years imprisonment to be suspended after six months with an operational period of two years — On Appeal — Sections 9(6A) and 9(6B) of the Penalties and Sentences Act 1992 (Qld) lay down the principles to be applied by the Court when sentencing an offender — These provisions inform the exercise of the sentencing discretion: they are not concerned to authorise the imposition on an offender of punishment to any particular extent, much less to any greater extent than was authorised by the former law — The extent of the punishment authorised for a given offence is determined by legislation other than s 9 of the PSA — The application of the sentencing principles as amended will not result in the imposition of punishment to a greater extent than might have been imposed prior to the amendment in question — Here, imprisonment was an appropriate penalty — The determination of the duration of imprisonment depended on factors wholly unconnected with the question whether imprisonment should be ordered at all — Given the nature of the offence, the applicable maximum penalty, Pham’s criminal history and the fact that the offences were committed while on parole the reasonableness of the sentence cannot be doubted — HELD: Application refused.

R v DAU; ex parte A-G (Qld) [2009] QCA 244 Holmes JA Mullins J Philippides J 28/08/2009

Sentence Appeal by A-G (Qld) from the Childrens Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — DAU, a juvenile, pleaded guilty to one count of rape and sentenced to two years detention, to be released after serving 50 per cent, with no conviction recorded — DAU struck the complainant’s face three times and forced the complainant to perform oral sex on him — His Honour noted the serious impact of the offence on the complainant and her family — In DAU’s favour were his early plea of guilty, his remorse and favourable content of the pre-sentence report — Against him were the gratuitous violence involved in the offence, taken with the offence itself, warranted actual detention despite his youth — On Appeal — Authorities relied on by the appellant contained more serious factual circumstances — In this case the learned sentencing judge in setting the head sentence at two years detention, gave the least sentence proper in the circumstances of the case; and in doing so, he met the statutory requirement that the “shortest appropriate” period of detention be imposed: s 150(2)(e) Juvenile Justice Act 1992 (Qld) — DAU had committed a less serious offence than the authorities relied on by the appellant, had no previous criminal history, and had prospects of rehabilitation likely to be affected by a conviction — HELD: Appeal dismissed.