R v Arthy - [2012] QCA 67

SUPREME COURT OF QUEENSLAND

CITATION:

R v Arthy & Anor [2012] QCA 67

PARTIES:

R
v
ARTHY, Scott Edward
(applicant)

R
v
ARTHY, Christopher James
(applicant)

FILE NO/S:

CA No 122 of 2011
CA No 109 of 2011
DC No 1368 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2011

JUDGES:

Muir and White JJA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. In CA No 109 of 2011 -

(a) Application for leave to appeal against sentence refused.

(b) Direct the Registrar of the District Court to amend the court order sheet attached to the indictment as follows –

(i) by deleting the date “19/04/2011” and substituting the date “20/04/2011”;

(ii) by deleting the sentence imposed on Christopher James Arthy and substituting –

“IMPRISONMENT

Order that Christopher James Arthy be imprisoned for a period of three and a half years.

Order that he be eligible for parole on 20 June 2012.”

(c) Direct that the Registrar of the District Court amend the verdict and judgment record of Christopher James Arthy by deleting the sentence and substituting the sentence set out in the preceding direction.

(d) Direct that the Registrar of the District Court provide the chief executive (corrective services) with a copy of the amended verdict and judgment record.

2. In CA No 122 of 2011 -

(a) Application for leave to appeal against sentence refused.

(b) Direct the Registrar of the District Court to amend the court order sheet attached to the indictment as follows –

(i) by deleting the date “19/04/2011” and substituting the date “20/04/2011”;

(ii) by deleting the sentence imposed on Scott Edward Arthy and substituting –

“IMPRISONMENT

Order that Scott Edward Arthy be imprisoned for a period of three and a half years.

Order that he be eligible for parole on 20 June 2012.”

(c) Direct that the Registrar of the District Court amend the verdict and judgment record of Scott Edward Arthy by deleting the sentence and substituting the sentence set out in the preceding direction.

(d) Direct that the Registrar of the District Court provide the chief executive (corrective services) with a copy of the amended verdict and judgment record.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicants each pleaded guilty to one count of unlawfully doing grievous bodily harm – where the applicants were sentenced to three and a half years imprisonment with parole eligibility after 14 months – where the first applicant submitted that the sentence imposed was manifestly excessive considering the relevant criteria – where the second applicant submitted that the sentence imposed was manifestly excessive as the sentencing judge gave insufficient consideration to mitigating factors and erred in characterising the failure to render assistance as ‘callous…

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 Arthy

Details

AGLC: R v Arthy [2012] QCA 67
Case: [2012] QCA 67
Decision Date: 27 March 2012

CaseChat Overview and Summary

Two applicants appealed against their sentences for unlawfully doing grievous bodily harm, each claiming their sentence was manifestly excessive. The applicants were each sentenced to three and a half years imprisonment with parole eligibility after 14 months. The first applicant argued that the sentence was manifestly excessive when considering the relevant criteria. The second applicant argued that the sentencing judge gave insufficient consideration to mitigating factors and wrongly characterised the failure to render assistance as ‘callous disregard’. The court had to decide whether the applicants’ sentences were manifestly excessive, and whether any error in recording the sentence or the date of sentencing would prejudice them.

The court found that the applicants’ sentences were not manifestly excessive. The sentencing judge had appropriately considered the relevant criteria and mitigating factors, including the applicants' guilty pleas, remorse, and lack of prior criminal history. The characterisation of the failure to render assistance as ‘callous disregard’ was not an error as it reflected the nature of the applicants' conduct. The court also found that the applicants were not prejudiced by the error in recording the date of sentencing or the incorrect recording of the sentence on the court order sheets and verdict and judgment records. The court ordered amendments to the court order sheets, verdict and judgment records, and directed the Registrar of the District Court to provide copies of the amended records to the chief executive of corrective services.

Orders

Orders of the court

1. In CA No 109 of 2011 -

(a) Application for leave to appeal against sentence refused.

(b) Direct the Registrar of the District Court to amend the court order sheet attached to the indictment as follows –

(i) by deleting the date “19/04/2011” and substituting the date “20/04/2011”;

(ii) by deleting the sentence imposed on Christopher James Arthy and substituting –

“IMPRISONMENT

Order that Christopher James Arthy be imprisoned for a period of three and a half years.

Order that he be eligible for parole on 20 June 2012.”

(c) Direct that the Registrar of the District Court amend the verdict and judgment record of Christopher James Arthy by deleting the sentence and substituting the sentence set out in the preceding direction.

(d) Direct that the Registrar of the District Court provide the chief executive (corrective services) with a copy of the amended verdict and judgment record.

2. In CA No 122 of 2011 -

(a) Application for leave to appeal against sentence refused.

(b) Direct the Registrar of the District Court to amend the court order sheet attached to the indictment as follows –

(i) by deleting the date “19/04/2011” and substituting the date “20/04/2011”;

(ii) by deleting the sentence imposed on Scott Edward Arthy and substituting –

“IMPRISONMENT

Order that Scott Edward Arthy be imprisoned for a period of three and a half years.

Order that he be eligible for parole on 20 June 2012.”

(c) Direct that the Registrar of the District Court amend the verdict and judgment record of Scott Edward Arthy by deleting the sentence and substituting the sentence set out in the preceding direction.

(d) Direct that the Registrar of the District Court provide the chief executive (corrective services) with a copy of the amended verdict and judgment record.

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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CITATION:	R v Arthy & Anor [2012] QCA 67
PARTIES:	R v ARTHY, Scott Edward (applicant) R v ARTHY, Christopher James (applicant)
FILE NO/S:	CA No 122 of 2011 CA No 109 of 2011 DC No 1368 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2011
JUDGES:	Muir and White JJA and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. In CA No 109 of 2011 - (a) Application for leave to appeal against sentence refused. (b) Direct the Registrar of the District Court to amend the court order sheet attached to the indictment as follows – (i) by deleting the date “19/04/2011” and substituting the date “20/04/2011”; (ii) by deleting the sentence imposed on Christopher James Arthy and substituting – “IMPRISONMENT Order that Christopher James Arthy be imprisoned for a period of three and a half years. Order that he be eligible for parole on 20 June 2012.” (c) Direct that the Registrar of the District Court amend the verdict and judgment record of Christopher James Arthy by deleting the sentence and substituting the sentence set out in the preceding direction. (d) Direct that the Registrar of the District Court provide the chief executive (corrective services) with a copy of the amended verdict and judgment record. 2. In CA No 122 of 2011 - (a) Application for leave to appeal against sentence refused. (b) Direct the Registrar of the District Court to amend the court order sheet attached to the indictment as follows – (i) by deleting the date “19/04/2011” and substituting the date “20/04/2011”; (ii) by deleting the sentence imposed on Scott Edward Arthy and substituting – “IMPRISONMENT Order that Scott Edward Arthy be imprisoned for a period of three and a half years. Order that he be eligible for parole on 20 June 2012.” (c) Direct that the Registrar of the District Court amend the verdict and judgment record of Scott Edward Arthy by deleting the sentence and substituting the sentence set out in the preceding direction. (d) Direct that the Registrar of the District Court provide the chief executive (corrective services) with a copy of the amended verdict and judgment record.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicants each pleaded guilty to one count of unlawfully doing grievous bodily harm – where the applicants were sentenced to three and a half years imprisonment with parole eligibility after 14 months – where the first applicant submitted that the sentence imposed was manifestly excessive considering the relevant criteria – where the second applicant submitted that the sentence imposed was manifestly excessive as the sentencing judge gave insufficient consideration to mitigating factors and erred in characterising the failure to render assistance as ‘callous…