R v Amery - [2011] QCA 383

SUPREME COURT OF QUEENSLAND

CITATION:

R v Amery [2011] QCA 383

PARTIES:

R
v
AMERY, David Ross
(applicant)

FILE NO/S:

CA No 179 of 2011
DC No 5 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

23 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2011

JUDGES:

Fraser JA and Mullins and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.          Application for leave to appeal against sentence granted.

2.          Appeal against sentence allowed.

3.          Sentence varied by reducing to seven years seven months the term of imprisonment imposed on the applicant.

4.          The date the applicant is eligible for parole is fixed at 10 April 2014.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to malicious act with intent – where complainant was the applicant’s de facto wife –where applicant in breach of temporary domestic violence order returned home, complained to the complainant about the domestic violence order and the complainant laughed – where applicant went out to the yard, got a sledgehammer and hit the complainant’s head twice causing lacerations to her skull, a skull fracture and two damaged teeth - where applicant held in pre-sentence custody for 140 days for the offences of grievous bodily harm and breach of domestic violence order and an unrelated common assault – where applicant intended to plead guilty to charge of grievous bodily harm, but indictment was presented for malicious act with intent – where applicant was proceeding to trial, but sacked his lawyers and entered a plea of guilty to malicious act with intent – where applicant had an extensive criminal history including three offences of armed robbery and a prior breach of domestic violence order – where applicant had remained out of prison since 1996 with a good employment history – whether sentence of eight years’ imprisonment without a parole eligibility date was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A

R v Holland [2008] QCA 200, considered
R v Laing [2008] QCA 317, considered
R v Mitchell [2006] QCA 240, considered
R v Murray [2010] QCA 266, considered

COUNSEL:

R A East for the applicant
S P Vasta for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I have had the advantage of reading the reasons for judgment of Mullins J. I agree with those reasons and with the orders proposed by her Honour.

MULLINS J: On 11 April 2011 the applicant appeared for himself before the learned District Court judge at Gympie and pleaded guilty to one count of malicious act with intent. He was sentenced to eight years’ imprisonment. No parole eligibility date was fixed. The applicant who is now legally represented applies for leave to appeal…

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 R v Amery

Details

AGLC: R v Amery [2011] QCA 383
Case: [2011] QCA 383
Decision Date: 23 December 2011

CaseChat Overview and Summary

The applicant in R v Amery appealed against the sentence imposed by the trial judge. The applicant had pleaded guilty to a malicious act with intent, after previously intending to plead guilty to grievous bodily harm. The complainant in the case was the applicant's de facto wife. The applicant had returned home in breach of a temporary domestic violence order, complained to the complainant about the order, and when the complainant laughed, the applicant hit her with a sledgehammer, causing severe injuries. The applicant had a criminal history including armed robbery and prior breaches of domestic violence orders. However, the applicant had been out of prison since 1996 and had a good employment history.

The legal issues before the court were whether the sentence of eight years' imprisonment without a parole eligibility date was manifestly excessive. The applicant argued that the sentence was manifestly excessive given the circumstances of the case, including the applicant's good employment history and the absence of any significant criminal history since 1996. The prosecution argued that the sentence was appropriate given the seriousness of the offence and the applicant's criminal history.

The court held that the sentence was manifestly excessive. The court found that while the offence was serious, the applicant's good employment history and absence of significant criminal history since 1996 were mitigating factors. The court also found that the applicant's breach of the domestic violence order was not a significant aggravating factor given the circumstances of the case. The court reduced the sentence to seven years seven months and fixed the date the applicant is eligible for parole at 10 April 2014.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. Sentence varied by reducing to seven years seven months the term of imprisonment imposed on the applicant.

4. The date the applicant is eligible for parole is fixed at 10 April 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Amery [2011] QCA 383
PARTIES:	R v AMERY, David Ross (applicant)
FILE NO/S:	CA No 179 of 2011 DC No 5 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	23 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	24 November 2011
JUDGES:	Fraser JA and Mullins and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Sentence varied by reducing to seven years seven months the term of imprisonment imposed on the applicant. 4. The date the applicant is eligible for parole is fixed at 10 April 2014.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to malicious act with intent – where complainant was the applicant’s de facto wife –where applicant in breach of temporary domestic violence order returned home, complained to the complainant about the domestic violence order and the complainant laughed – where applicant went out to the yard, got a sledgehammer and hit the complainant’s head twice causing lacerations to her skull, a skull fracture and two damaged teeth - where applicant held in pre-sentence custody for 140 days for the offences of grievous bodily harm and breach of domestic violence order and an unrelated common assault – where applicant intended to plead guilty to charge of grievous bodily harm, but indictment was presented for malicious act with intent – where applicant was proceeding to trial, but sacked his lawyers and entered a plea of guilty to malicious act with intent – where applicant had an extensive criminal history including three offences of armed robbery and a prior breach of domestic violence order – where applicant had remained out of prison since 1996 with a good employment history – whether sentence of eight years’ imprisonment without a parole eligibility date was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A R v Holland [2008] QCA 200, considered R v Laing [2008] QCA 317, considered R v Mitchell [2006] QCA 240, considered R v Murray [2010] QCA 266, considered
COUNSEL:	R A East for the applicant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent