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 2010DIVISION:
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 madeORDERS:
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, consideredCOUNSEL:
R A East for the applicant
S P Vasta for the respondentSOLICITORS:
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…
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- AGLC
- R v Amery [2011] QCA 383
- Case
- [2011] QCA 383
- Decision Date
CaseChat Overview and Summary
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
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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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