Bateman v Briskey - [2012] QDC 232

DISTRICT COURT OF QUEENSLAND

CITATION:

Bateman v Briskey [2012] QDC 232

PARTIES:

KASIA BATEMAN
(applicant)
v
JAY LESLIE BRISKEY

(respondent)

FILE NO/S:

D24/12

DIVISION:

Appeal jurisdiction

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

28 June 2012

DELIVERED AT:

Toowoomba

HEARING DATE:

27 June 2012

JUDGE:

Bradley DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent pleaded guilty to serious assault – where sentence imposed was 12 months imprisonment with immediate parole – whether sentence manifestly inadequate

Justices Act 1886 (Qld), s 222
Penalties and Sentences Act 1992 (Qld), s 9

Appeal Costs Fund Act 1973 (Qld), s 15

R v Wotton and Bourne, ex-parte Attorney-General [1999] QCA 382
R v Williams [1997] QCA 385
R v Kazakoff [1998] QCA 459

Ostaspovitch v Taumaletila-Maulolo [2012] QDC 029

COUNSEL:

S Farnden for the applicant
S Lynch for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the applicant
Bosscher Lawyers for the respondent

HER HONOUR: Now, this is an appeal by the prosecution against a sentence that was imposed in the Toowoomba Magistrates Court on the 29th of February 2012 when the respondent pleaded guilty to a charge of serious assault in relation to an assault on a police officer which offence was committed on the 7th of May 2011 at Pittsworth. The sentence imposed was one of 12 months' imprisonment with immediate parole. The appellant contends that such a sentence is manifestly inadequate.

The facts, as outlined in the appellant's outline of argument, and it seems to be accepted by the respondent, are as follows: the complainant police officer was performing patrol duties in the early hours of the morning in Pittsworth. He approached the respondent who was walking on his own and asked his name and what he was doing. The respondent ran at the police officer and assaulted him. The two of them struggled and the respondent was restrained before breaking free and continuing to assault the officer. Both men fell to the ground and the respondent punched the officer six times to the head. The officer lost consciousness briefly and the respondent fled.

The police officer was transferred by ambulance to the Toowoomba Base Hospital in relation to head injuries. He suffered injuries to his head, namely abrasions to the right side of his forehead, a sore neck and bruising to his upper right shoulder and right hip. He had scans and tests completed.

The respondent participated in an interview with police during which he falsely denied involvement in the offence. He gave a false excuse as to why he had an injured hand, and the plea of guilty was entered after the matter had been listed for committal with a cross-examination of witnesses.

A preliminary issue on appeal was whether the respondent's plea of guilty could properly be described as having been entered at an early stage. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bateman v Briskey

Details

AGLC: Bateman v Briskey [2012] QDC 232
Case: [2012] QDC 232
Decision Date: 28 June 2012

CaseChat Overview and Summary

In Bateman v Briskey, the respondent, Briskey, appealed against a sentence imposed by the court, contending that it was manifestly inadequate. The respondent had pleaded guilty to a serious assault, and the sentence imposed was 12 months imprisonment with immediate parole eligibility. The court was required to determine whether the sentence imposed by the primary judge was manifestly inadequate. The primary judge had considered the seriousness of the offence, the respondent's criminal history, and the need for general deterrence in determining the appropriate sentence. The court found that the primary judge had appropriately considered all relevant factors and had exercised their discretion correctly in imposing the sentence. The appeal was dismissed as the court found no basis for interference with the sentence imposed by the primary judge.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bateman v Briskey [2012] QDC 232
PARTIES:	KASIA BATEMAN (applicant) v JAY LESLIE BRISKEY (respondent)
FILE NO/S:	D24/12
DIVISION:	Appeal jurisdiction
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	Magistrates Court at Toowoomba
DELIVERED ON:	28 June 2012
DELIVERED AT:	Toowoomba
HEARING DATE:	27 June 2012
JUDGE:	Bradley DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent pleaded guilty to serious assault – where sentence imposed was 12 months imprisonment with immediate parole – whether sentence manifestly inadequate Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 9 Appeal Costs Fund Act 1973 (Qld), s 15 R v Wotton and Bourne, ex-parte Attorney-General [1999] QCA 382 R v Williams [1997] QCA 385 R v Kazakoff [1998] QCA 459 Ostaspovitch v Taumaletila-Maulolo [2012] QDC 029
COUNSEL:	S Farnden for the applicant S Lynch for the respondent
SOLICITORS:	Office of the Director of Public Prosecutions for the applicant Bosscher Lawyers for the respondent