R v Bailey

[2009] QCA 251

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bailey [2009] QCA 251

PARTIES:

R
v
BAILEY, Rick James
(applicant/appellant)

FILE NO/S:

CA No 109 of 2009
DC No 70 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

1 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2009

JUDGES:

Holmes JA, Mullins and Philippides JJ
Judgment of the Court

ORDERS:

1.   Application for leave to appeal allowed;

2.   Appeal allowed;

3.   Sentence imposed at first instance set aside;

4.   Sentence of three years imprisonment suspended after a period of nine months, for an operational period of three years, substituted.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON –GENERALLY – where applicant pleaded guilty to one count of doing grievous bodily harm and was sentenced to four and a half years imprisonment with eligibility for parole after 15 months – whether the sentence was manifestly excessive having regard to certain mitigating factors

Criminal Code 1899 (Qld), s 320

R v Berryman (2005) 159 A Crim R 65; [2005] QCA 471, considered
R v Brand [2006] QCA 525, considered
R v Hammond (1996) 92 A Crim R 450; [1996] QCA 508, considered
R v Hays; ex parte A-G[1999] QCA 443, considered
R v Henriott [2004] QCA 346, considered
R v Jaramillo[2007] QCA 420, considered
R  v Jones[2008] QCA 181, considered
R v Rehavi [1999] 2 Qd R 640; [1998] QCA 157, considered
R v Weare [2002] QCA 183, considered

COUNSEL:

A J Glynn SC for the applicant/appellant
P F Rutledge for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT: On 2 March 2009 Rick James Bailey pleaded guilty by way of ex-officio indictment to one count of unlawfully doing grievous bodily harm.  On 27 April 2009, he was sentenced to four and a-half years’ imprisonment with parole eligibility on 27 May 2010 (effectively after 15 months from the date of conviction).  The 56 days of pre-sentence custody was declared as time served.  The applicant, who was 19 at the time of the offence and 20 at the time of sentence, seeks leave to appeal against the sentence imposed on the ground that it is manifestly excessive. 

1. The matter proceeded on the basis of agreed facts, as outlined in a schedule of facts that was tendered at sentence.  The circumstances are that on 19 January 2008, the applicant and the complainant, who did not know each other, were drinking at the bar of a hotel.  The complainant was there with a friend and the applicant was seated nearby with his girlfriend.  He had his back to the applicant.  The applicant was observed to be drinking from a schooner glass.…