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[2009] QCA 12
respondent. Application for leave to adduce further evidence refused; application for leave to appeal against sentence refused; warrant to issue for the apprehension of the applicant, to lie in the Registry...
1 cited instrument linked from this judgment.
The Court of Appeal refused Hilton’s sentence appeal and refused to consider the late psychotherapist’s report. It concluded that the six months of actual custody was within the sentencing judge’s discretion given the deliberate and sustained assault, the serious injuries, the continuation of the attack after the victim was unconscious, and Hilton’s assault history. The report was obtained after sentence, could have been obtained earlier, and did not show that the sentence caused a miscarriage of justice.
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2,238 words · generated 02/10/2026
In R v Hilton [2009] QCA 12, the Queensland Court of Appeal considered Christopher Brian Hilton’s application for leave to appeal against sentence and a separate application for leave to adduce further evidence. The Court refused both applications and ordered a warrant to issue for Hilton’s apprehension, to lie in the Registry for 14 days ([35]–[37]).
Hilton had pleaded guilty to one count of assault occasioning bodily harm. On 16 October 2008, he was sentenced to 18 months imprisonment, suspended after six months for an operative period of two years. The maximum punishment available was seven years imprisonment ([5]). His appeal was based on the contention that the sentence was manifestly excessive because it required him to serve six months in actual custody ([20]).
The assault occurred on 2 December 2006. Hilton used his vehicle to block the vehicle in which Christian Patrick Moore was travelling, approached Moore and said he wanted to fight. When Moore told him to go away, Hilton pulled Moore’s arm through the car window and dragged him out. Hilton punched Moore, knocked him to the ground and then punched him repeatedly in the head. After Moore was unconscious, Hilton kicked him in the head three or four times. The attack ended after a passenger called out, “That’s enough” ([8]–[10]).
Moore suffered a fractured cheekbone, lacerations and bruising to his head and arm; photographs also showed facial scarring ([11]). The Court noted a prior dispute about the sale of a car and earlier statements by Hilton that he had “not finished” with Moore ([12]). It also recorded that Hilton’s guilty plea followed a committal hearing involving cross-examination and two trial listings, so it could not be regarded as an early plea ([13]).
Hilton was 35 at the time of the offence and 37 at sentence, worked in restaurant management, had two previous assault convictions, and was a single father to an eight-year-old child ([14]–[16]). Character references, the effect of custody on his mother and son, and an offer to pay $7,500 compensation were raised at sentence ([17]–[19]). Keane JA noted that no appeal ground alleged error in the sentencing judge’s treatment of the compensation offer ([19]).
Hilton also sought to adduce a psychotherapist’s report. At sentence, his counsel had said he was suffering from depression, but no report had been obtained, and no adjournment was sought to obtain one ([29]). The report eventually relied on described counselling for anger issues beginning in mid-January 2009, after sentence ([32]).
The Court treated the central sentencing issue as whether actual custody was within the proper exercise of the sentencing judge’s discretion. Keane JA rejected the proposition that the sentence was excessive simply because six months had to be served in custody ([20]–[21]). The question was not whether a fully suspended sentence could have been imposed, but whether the sentence actually imposed was manifestly excessive.
McMurdo P emphasised the statutory setting. Because the offence involved violence resulting in physical harm, s 9(4) of the Penalties and Sentences Act 1992 (Qld) was the primary focus. The principles in s 9(2)(a), that imprisonment should be a last resort and community-based sentences preferred, did not apply by reason of s 9(3) ([2]). McMurdo P considered that applying the relevant s 9(4) considerations to the circumstances set out by Keane JA showed that the sentence was not manifestly excessive ([2]).
The seriousness of the offending was central. The assault was deliberate and persistent, followed the pursuit of a grudge, caused serious injury, and continued after Moore was unconscious ([9], [11]–[12], [23]). Keane JA called the continuation after unconsciousness a matter of “special concern” ([9], [23]). The applicant’s maturity and two prior assault convictions were also relevant to the Court’s consideration of personal deterrence ([15], [22]).
The Court discussed general and personal deterrence in relation to violence. Keane JA said that such considerations may warrant a custodial sentence even for a first offence, and that deterrence may generally overcome reluctance to impose a short period of imprisonment on a mature offender ([22]). This was applied to Hilton, whose assault history and conduct supported the Court’s conclusion that a sentence involving actual custody was not surprising ([22]).
The Court distinguished the authorities relied on for non-custodial outcomes. Walsh, Sayer & Thompson concerned youths with no criminal history, provocation, and an assault that did not continue after the victim was unconscious ([24]). In Yanner & Yanner, the Court of Appeal had refrained from imposing custody in circumstances involving a two-and-a-half-year delay before the Attorney-General’s appeal and concessions by the prosecutor at first instance ([25]). Fairbrother was distinguished because the assault had not been found to be deliberate ([26]). Conway did not support Hilton’s argument because the Court had not fully suspended the sentence imposed on resentencing ([27]). The Court concluded that those cases did not show that the sentencing discretion had miscarried ([28]).
On the further-evidence application, Keane JA relied on s 668E(3) of the Criminal Code 1899 (Qld) and the approach described in R v Maniadis. The question was whether receiving the new evidence was necessary to prevent a miscarriage of justice ([30]). The evidence could have been obtained earlier, no adequate explanation was given for not presenting it at sentence, and the sentencing judge had expressly asked whether a report was available ([29], [31]). The report concerned counselling begun after sentence and did not materially reduce the culpability of the offending or show that the sentence was unwarranted ([32]–[33]).
The judgment explains a statutory change relevant to the sentencing analysis. McMurdo P observed that Walsh, Sayer & Thompson and Yanner & Yanner concerned offences committed before the amendments to s 9 that added subsections (3) and (4) ([3]). Under the approach stated in this judgment, where an offence involves violence resulting in physical harm, s 9(4) is the primary statutory focus and s 9(2)(a)’s preference for imprisonment as a last resort does not apply because of s 9(3) ([2]).
The reasons do not set out the text of s 9(4), nor do they describe the full legislative history or the precise date on which the amendments took effect. The safe account of the “before and after” point is therefore limited: the Court noted that the two earlier authorities relied on by Hilton concerned pre-amendment offending, and treated that distinction as relevant when considering their value as comparators ([3], [24]–[25]).
For sentence appeals, the judgment applies the familiar question whether the sentence is manifestly excessive and whether the sentencing discretion miscarried. Its practical reasoning is that a sentence involving actual imprisonment can be within the proper sentencing discretion for deliberate and persistent adult violence causing serious harm, particularly where deterrence is engaged ([21]–[23]). This is an application to Hilton’s facts, not a rule that every comparable assault must attract actual custody.
For new evidence, the decision recounts the Maniadis principle under s 668E(3): admitting evidence on a sentence appeal depends ultimately on whether excluding it would produce a miscarriage of justice ([30]). The Court did not treat late evidence as automatically inadmissible. Rather, it considered the explanation for its absence at sentence, whether it could have been obtained earlier, and whether it could affect the assessment of the sentence or establish a miscarriage ([30]–[33]).
The provided judgment supplies no subsequent decisions or materials about the later treatment of Hilton. It therefore supports an account of the principles applied in 2009, but not a claim about their present status or how later courts have developed them.
At [21], Keane JA framed the sentencing question as whether actual custody was “within the scope of the proper exercise” of the sentencing discretion. In plain English, the appeal was not resolved by asking whether another judge could have imposed a more lenient sentence. It was whether this sentence fell outside the permissible sentencing judgment.
At [22], Keane JA said that offences involving personal violence may raise general and personal deterrence considerations warranting custody, even for a first offence. The reasoning distinguishes the offender’s individual circumstances from the need to discourage violent conduct generally and personally. It does not say deterrence always requires prison. The passage says it “may” warrant custody, and the judgment ties its application to the circumstances before the Court.
At [23], Keane JA identified the attack after Moore was unconscious as a matter of special concern. In ordinary language, the victim’s inability to defend himself made the continuation of the violence particularly serious in the Court’s assessment. The Court also rejected the characterisation of the incident as youthful misjudgement, emphasising Hilton’s maturity and the deliberate nature of the attack.
At [30], the judgment recounts the Maniadis formulation that receiving further evidence turns on whether exclusion would cause a miscarriage of justice. This means that an appeal is not ordinarily a second opportunity to provide evidence that could have been put before the sentencing judge. The key inquiry is whether the omission would make the appellate process unjust in the circumstances.
At [31], Keane JA explained why the report did not meet that test: it could have been obtained earlier, there was no good explanation for not doing so, and the material was unlikely to cast the sentence in a materially different light. At [32]–[33], he added that the counselling began after sentence and did not demonstrate that the original sentence was manifestly excessive.
The sentencing reasoning is relevant to cases involving deliberate and persistent adult violence causing physical harm, particularly where the assault continues after the victim is incapacitated. In Hilton, the Court considered the victim’s serious injuries, the continuation of the attack after unconsciousness, the applicant’s maturity, the pursuit of a personal grudge, and previous assault convictions ([9], [11]–[12], [15], [22]–[23]). The judgment treats these matters as part of the factual context supporting actual custody.
The reasons also indicate that comparator cases require attention to differences in age, provocation, criminal history, deliberateness, continuation of violence, delay, and the prosecution position at first instance. Those were the features Keane JA used to distinguish the cases invoked by Hilton ([24]–[27]). The judgment does not establish that any one feature independently determines sentence.
The evidence ruling is relevant where an appellant seeks to add psychological or counselling material that could have been available at the original sentence hearing. Questions highlighted by the Court include whether the evidence was available or obtainable earlier, whether there is an adequate explanation for its absence, whether it speaks to the circumstances at the time of sentence, and whether its reception is needed to prevent a miscarriage of justice ([29]–[33]).
The judgment’s use should remain bounded by its procedural and statutory context: a Queensland sentence application under the provisions identified in the reasons, on the evidence and circumstances described there. The decision does not provide a complete catalogue of sentencing factors or set numerical benchmarks for assault sentences.
No later cases are included in the supplied judgment text. Accordingly, this source alone does not establish how later courts have treated Hilton, whether they have followed or confined its reasoning, or whether any later authority has changed the relevant legal framework.
The authorities discussed in Hilton are earlier cases, not later treatment of the decision. Keane JA cited or distinguished Yanner & Yanner, Jones, Walsh, Sayer & Thompson, Fairbrother, Conway and Maniadis in explaining the sentence appeal and further-evidence application ([21], [24]–[30]). These references show the authorities considered by the Court in 2009, but cannot answer how subsequent courts applied Hilton.
The judgment itself gives two cautions relevant to interpreting precedent. First, it identifies the statutory amendment as a reason why pre-amendment cases such as Walsh, Sayer & Thompson and Yanner & Yanner were not direct comparators for the statutory sentencing framework ([3]). Second, its treatment of the other assault authorities turns on specific factual and procedural distinctions, rather than asserting that their outcomes govern every later case ([24]–[28]).
The judgment does not reproduce the detailed requirements of s 9(4), so the exact statutory factors cannot be fully analysed from this source alone. It establishes the Court’s account that s 9(4) was the primary focus and that s 9(2)(a) did not apply because of s 9(3), but does not set out each factor or explain how each was individually weighed ([2]).
The reasons do not prescribe a threshold for how serious an injury must be, how long or forceful an assault must be, or what combination of aggravating and personal circumstances will make actual custody appropriate. The result is expressly tied to the facts, including the deliberate pursuit of the complainant, the injuries, the post-incapacitation violence and the applicant’s history ([8]–[15], [22]–[23]).
The judgment also does not specify a universal rule for late psychological evidence. It states the miscarriage-of-justice test and explains why the report before it failed, but does not decide every situation involving a newly obtained diagnosis, evidence of a condition existing at sentence, or a credible explanation for why the material was unavailable earlier ([30]–[33]).
Finally, the supplied source does not address subsequent appellate developments or current legislative amendments. Those questions cannot be resolved from Hilton alone. This is general legal information, not legal advice; Zoe can make mistakes, and a qualified Australian lawyer should check it before you act on it, rely on it, or use any draft.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Hilton [2009] QCA 12
PARTIES: R v HILTON, Christopher Brian (applicant)
FILE NO/S: CA No 281 of 2008 DC No 238 of 2008
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Maroochydore
DELIVERED ON: 13 February 2009
DELIVERED AT: Brisbane
HEARING DATE: 3 February 2009; 4 February 2009
JUDGES: McMurdo P, Keane JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER: Application for leave to adduce further evidence refusedApplication for leave to appeal against sentence refusedWarrant to issue for the apprehension of the applicant, to lie in the Registry for 14 days
CATCHWORDS: CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE — where applicant convicted on guilty plea of one count of assault occasioning bodily harm — where applicant sentenced to 18 months imprisonment suspended after six months for an operative period of two years — where applicant sought to adduce evidence on sentence application of depression and post-sentence counselling — whether sentence manifestly excessive or inadequate / Criminal Code 1899 (Qld), s 668E(3) / R v Conway (2005) 157 A Crim R 474; [2005] QCA 194, cited R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105, cited R v Jones [2003] QCA 474, cited R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Walsh, Sayer & Thompson; ex-parte A-G [1998] QCA 217, cited R v Yanner & Yanner; ex parte A-G (1999) 109 A Crim R 109; [1999] QCA 515, cited
COUNSEL: A J Kimmins for the applicant B G Campbell for the respondent
SOLICITORS: Ryan & Bosscher for the applicant Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: I agree with Keane JA's reasons. Both the application for leave to appeal against sentence and the application to adduce further evidence should be refused.
As this was an offence of violence resulting in physical harm to the complainant, the sentencing court must have regard primarily to the matters set out in s 9(4) Penalties and Sentences Act 1992 (Qld). The principles set out in s 9(2)(a) (that imprisonment should be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable) do not apply: see s 9(3). A consideration of the sentencing principles in s 9(4), in the context of the circumstances of this case as set out by Keane JA, plainly demonstrates that the present sentence is not manifestly excessive.
In attempting to demonstrate the excessive nature of the sentence, counsel for the applicant relied on R v Walsh, Sayer & Thompson; ex parte A-G1 and R v Yanner & Yanner, ex parte A-G.2 It is noteworthy that both of these cases concerned offences committed before the amendment to s 9 which added s 9(3) and s 9(4).
[4] I agree with the orders proposed by Keane JA.
[5] KEANE JA: On 16 October 2008 the applicant was convicted on his own plea of one count of assault occasioning bodily harm. He was sentenced to imprisonment for 18 months suspended after six months for an operative period of two years. The maximum punishment that might have been imposed was seven years imprisonment.
[6] The applicant seeks leave to appeal against this sentence on the ground that it was manifestly excessive. The application for leave to appeal was originally listed for hearing in this Court on 4 December 2008, but it was delisted administratively at the applicant's request in order to afford the applicant the opportunity to obtain further evidence.
[7] On 19 December 2008 the applicant was released on bail pending the determination of this appeal. He has thus served 65 days in custody for this offence.
Circumstances of the offence
[8] On the afternoon of 2 December 2006, the applicant assaulted the complainant, Christian Patrick Moore. The complainant was a passenger in a motor vehicle being driven through a bottle shop at a hotel. The applicant drove his own vehicle so as to block the path of the vehicle in which the complainant was travelling. The applicant got out of his car and walked to the complainant's window and said that he wanted to fight him.
[9] The complainant told the applicant to go away, and the applicant then grabbed the complainant's left arm, pulled it out of the window and back towards the rear passenger's window. The applicant was yelling: "I'm going to break your arm." The complainant was pulled out of the car window. On the way, he grabbed a short round wooden pole or baton with which he twice hit the applicant's legs. The applicant punched the complainant's face with his right hand. The complainant fell to the ground and let go of the wooden pole. The applicant then punched the complainant in the head approximately six or seven times rendering him unconscious. He then kicked the complainant in the head three or four times. That the applicant continued his assault after the victim had been rendered unconscious is a matter of special concern. Fortunately, the applicant was not wearing shoes.
[10] The passenger in the applicants' car said: "That's enough." At this point the applicant desisted from his attack on the complainant. The applicant then drove away.
[11] The complainant was taken to hospital where his injuries were treated. He suffered a fractured cheekbone as well as assorted lacerations and bruising to the head and his left upper arm. Photographs of his injuries show that he also suffered scarring to the face.
[12] The applicant and the complainant had previously worked together. There was bad blood between them as a result of the sale of a car by the applicant to the complainant. They had previously engaged in a fist fight in which the complainant had gained the upper hand. The applicant had subsequently told the complainant's brother on two occasions that he "had not finished" with the complainant because of issues surrounding the sale of the car.
[13] The applicant's plea of guilty could not be regarded as an early plea. The matter had proceeded through a committal hearing on 2 May 2008 with cross-examination of the complainant, his companion at the time of the assault and an independent witness. The matter was twice listed for trial before the applicant decided to plead guilty.
The applicant's personal circumstances
[14] The applicant was 35 years old at the date of his offence and 37 years old at the date of sentence. He is involved in restaurant management.
[15] The applicant has a minor criminal history of little present relevance. It may be noted, however, that he has two previous convictions for assault.
[16] He is a single father of an eight year old child to whom he is said to be devoted.
The sentence
[17] Many references were tendered at the sentence hearing attesting to the applicant's good character.
[18] The applicant made the point that a sentence involving actual custody would cause difficulties for his elderly mother and dependent son.
[19] The applicant also offered to pay compensation of $7,500 to the complainant. This money was borrowed from a family member. The learned sentencing judge was disposed to regard this offer as a consideration of little relevance to sentence. I note that it is not suggested that his Honour erred in this regard.
The application in this Court
[20] The applicant's contention is that the sentence was manifestly excessive. The only basis for that contention is said to be because the applicant is obliged to spend six months in actual custody. In other words, it is said on the applicant's behalf that a sentence which was not wholly suspended was manifestly excessive. I am unable to accept that contention.
[21] The question is whether the imposition of a term of actual custody was within the scope of the proper exercise of the discretion of the learned sentencing judge. There can be no doubt that it was reasonably open to his Honour to impose such a sentence in this case. The observations of McMurdo P and Thomas JA in this Court in R v Yanner & Yanner; ex parte A-G3 show that, generally speaking, an offender who is a mature adult should usually expect to serve a term of actual imprisonment for an offence involving deliberate, protracted and irrational inflicting of bodily harm upon another. The decision of this Court in R v Jones4 shows that this is so even in the case of a first offence where the offender has a good work history and has been more co-operative with the administration of justice than the applicant in this case has been.
[22] Offences involving personal violence raise considerations of general and personal deterrence which may warrant a custodial sentence even for a first offence. The applicant's record of previous assaults suggests that the need for personal deterrence is a consideration of concern in this case. In the present case, the applicant's assault on the complainant was quite unprovoked; the complainant did not want to fight the applicant, but the applicant persisted in his pursuit of a grudge. While the courts are slow to send an offender to prison for a short time where the offender has not previously been sentenced to actual imprisonment, considerations of general and personal deterrence will, generally speaking, overcome that reluctance in the case of a mature offender. That this offence, involving as it did persistent personal violence by a mature adult, should be punished by a sentence involving actual custody is hardly surprising.
[23] The assault was not an act of youthful misjudgement: the applicant is a mature man, and his attack on the complainant was prosecuted with deliberation and determination. The complainant suffered serious injury. It is a matter of special concern that the applicant continued his attack upon the complainant by kicking him after he had been rendered unconscious. It cannot be said that the sentence was manifestly excessive on the material which was before the learned sentencing judge.
[24] On the applicant's behalf, reference was made to a number of decisions of this Court in which, so it was argued, non-custodial sentences were imposed in cases of assault occasioning bodily harm which were "more serious" so far as the offending involved was concerned than the present case. The first of these cases was R v Walsh, Sayer & Thompson,5 but that case is immediately distinguishable from the present on the grounds that the offenders were youths with no criminal history who had been provoked by the complainant, and their assault did not continue after the victim had been rendered unconscious.
[25] Reference was also made in this context to R v Yanner & Yanner, ex parte A–G,6 but that case was an appeal by the Attorney-General and the Court refrained from imposing a custodial sentence expressly because of the lapse of two and a half years between the violent conduct and the appeal to this Court, and the non-custodial sentence had been imposed at first instance because of concessions made by the learned Crown Prosecutor who had urged that the sentence be fully suspended.7
[26] Next, reference was made to R v Fairbrother; ex parte A-G (Qld),8 but that was a case where a non-custodial sentence was upheld explicitly on the basis that the relevant assault had not been found to be deliberate.9
[27] The final case referred to on behalf of the applicant in this regard was R v Conway.10 But this was a case where this Court, while allowing the offender's appeal, did not fully suspend the sentence of imprisonment which was imposed when this Court sentenced the offender afresh. It affords no support at all to the applicant's submission.
[28] Accordingly, I do not regard the cases to which reference has been made as indicators that the sentencing discretion miscarried in the present case.
Further evidence
[29] The applicant now seeks to rely upon evidence which was not adduced below. At the hearing before the learned sentencing judge, it was said that the applicant was suffering from depression, and when the judge enquired as to whether any report was available in that regard, he was told that none had been obtained. No adjournment was sought at that time to enable an expert report upon the applicant's emotional state to be obtained. As I have noted above, it was to enable the applicant to seek to obtain such evidence that this matter was previously delisted administratively at the applicant's request. There was, in the written submissions for the applicant, a suggestion that the applicant would seek to adduce evidence from a psychologist and a psychiatrist; but in the end the applicant sought to rely only upon a report from a psychotherapist.
[30] In relation to the admissibility of this further material, the applicant's counsel relied upon the decision of this Court in R v Maniadis11 in which it was recognised that the Court has a discretion under s 668E(3) of the Criminal Code 1899 (Qld) to admit new evidence on appeal in order to show that "some other sentence, whether more or less severe, is warranted". In the reasons of Davies JA and Helman J, with which Fitzgerald P agreed, it was said that whether or not new evidence is to be admitted on an application for leave to appeal against sentence is a question which depends ultimately upon perception that the reception of the new evidence is necessary to prevent a miscarriage of justice. Their Honours said:12
"That is not to say that the discretion to admit new evidence in an appeal pursuant to subs [668E](3) will be commonly exercised by an appellate court (See, for example, R v Lanham [1970] 2 NSWR 217, R v Brett [1983] 1 Qd R 38). But a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh in the above sense, if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive (Cf Knights (1993) 70 A Crim R 105). Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed (As in R v M [1996] 1 Qd R 650; R v Smith (1987) 44 SASR 587; Jones (1993) 70 A Crim R 449. Evidence of subsequent sentences imposed on co-offenders appears to be an exception to the general proposition; and query Greer v The Queen referred to in Gavin v The Queen (1991) 6 WAR 195 at 208).
There will no doubt be cases in which, notwithstanding that, if such evidence were admitted some other sentence would be warranted, the evidence should nevertheless be excluded. Where the evidence was known to the appellant at the sentence hearing and deliberately withheld, that will generally be so.
However we would not agree with the majority of the New South Wales Court of Criminal Appeal in Goodwin ((1990) 51 A Crim R 328) that, for such evidence to be admissible on appeal, two conditions which must always be satisfied are that, if the existence of the evidence is known to the appellant, its significance was not realised by him and that its existence was not known to the appellant's legal advisers at the time of the sentence hearing. No doubt where those conditions are absent such evidence will usually be excluded but that may not always be so. In the end, the reception of such evidence will depend on whether, if it were excluded, there would be a miscarriage of justice; and it would be undesirable, in our view, to state in advance those matters which, in every case, must be proved in order to establish such a miscarriage."
[31] In my respectful opinion, no sufficient basis has been shown for allowing the further material to be considered in this case. Any such material could have been obtained earlier, and there is no good explanation for the applicant's failure to do so. It is difficult to avoid the conclusion that a decision was made not to provide the sentencing judge with a report of the kind now sought to be tendered: his Honour explicitly enquired as to whether the applicant sought to rely upon such evidence. Furthermore, there is no reason to believe that it would be apt to cast the sentence imposed in a materially different light, much less that it is necessary to correct a miscarriage of justice.
[32] The report of Ms Carbone, the psychotherapist on which the applicant seeks to rely, shows that the applicant began receiving counselling for his "anger issues" in mid-January 2009, that is to say only after he had been sentenced. Ms Carbone observed that the applicant "feels the consequences of his behaviour are costing him a lot. This has resulted in feelings of depression." This observation does not serve to lessen the culpability of the applicant's offending conduct. If anything, it tends to suggest a level of self-regard and insensitivity to the rights of others inconsistent with a proper appreciation of the serious nature of his offence.
[33] It is readily apparent without Ms Carbone's report that the applicant has a problem with anger management which needs to be addressed in his own interests and in the interests of the community. Evidence that, since he was sentenced, he has come to recognise that this is so does not demonstrate that the sentence which was imposed upon him was manifestly excessive. The new report is not apt to suggest that the applicant has suffered a miscarriage of justice. I would refuse to receive this new evidence.
Conclusion and orders
[34] The contention that the sentence was manifestly excessive should be rejected.
[35] The application for leave to adduce further evidence should be refused.
[36] The application for leave to appeal against sentence should be refused.
[37] A warrant should issue for the apprehension of the applicant. The warrant should lie in the Registry for 14 days.
[38] ATKINSON J: I agree with the orders proposed by Keane JA and with the reasons of the President and Keane JA.
[1998] QCA 217. ↩
[1999] QCA 515. ↩
(1999) 109 A Crim R 109; [1999] QCA 515 at [44] – [45]. ↩
[2003] QCA 474. See also R v Conway (2005) 157 A Crim R 474; [2005] QCA 194 at [51]. ↩
[1998] QCA 217. ↩
(1999) 109 A Crim R 109; [1999] QCA 515. ↩
(1999) 109 A Crim R 109; [1999] QCA 515 at [46]. ↩
[2005] QCA 105. ↩
[2005] QCA 105 at [24]. ↩
(2005) 157 A Crim R 474; [2005] QCA 194. ↩
[1997] 1 Qd R 593 esp at 596 – 597; [1996] QCA 242. ↩
[1997] 1 Qd R 593 at 596 – 597 (citations footnoted in original); [1996] QCA 242. ↩
R
Hilton [2009] QCA 12
(1987) 44 SASR 587
(1991) 6 WAR 195
Application for leave to adduce further evidence refused; application for leave to appeal against sentence refused; warrant to issue for the apprehension of the applicant, to lie in the Registry for 14 days.