R v Barry

Case [2011] QCA 119


SUPREME COURT OF QUEENSLAND

CITATION:

R v Barry [2011] QCA 119

PARTIES:

R
v
BARRY, Christine Ellen
(applicant/appellant)

FILE NO/S:

CA No 300 of 2010
DC No 360 of 2010
DC No 382 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

7 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2011

JUDGES:

Fraser and Chesterman JJA and Cullinane J
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 two years the term of imprisonment imposed for the unlawful wounding offence on the ex officio indictment;

4.    The sentence imposed and orders made at first instance are otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on her plea of guilty of unlawful wounding and breaching a suspended sentence – where the sentence of three years imprisonment for the unlawful wounding was ordered to be served cumulatively upon the three remaining years of suspended imprisonment – where the effective head sentence was six years imprisonment with a parole eligibility date after 19 months – where the applicant’s life had been dominated by alcohol and violence and the applicant had a concerning criminal history – where the applicant argued that the sentencing judge failed to apply the totality principle – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(l), s 9(2)(m), s 147

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered
Postiglione v The Queen
(1997) 189 CLR 295; [1997] HCA 26, applied
R v Clements
(1993) 68 A Crim R 167; [1993] QCA 245, cited
R v Friday
[2005] QCA 440, cited
R v James
[2000] QCA 477, cited
R v MAK
(2006) 167 A Crim R 159; [2006] NSWCCA 381, considered
R v Norden
[2009] 2 Qd R 455; [2009] QCA 42, applied
R v Tyson [2006] QCA 483, cited

COUNSEL:

C Morgan for the applicant/appellant
M Connolly for the respondent

SOLICITORS:

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

[1]      FRASER JA:  The applicant was convicted on her plea of guilty of the offence of unlawful wounding.  On 8 November 2010 she was sentenced to three years imprisonment for that offence.  Her conviction of the offence constituted a breach of the terms of a sentence of four years imprisonment, suspended after 12 months, which had been imposed on 9 March 2009 for an offence of causing grievous bodily harm.  The sentencing judge ordered the applicant to serve the three remaining years of suspended imprisonment cumulatively upon the three years imprisonment imposed for the unlawful wounding offence.  His Honour declared 265 days pre-sentence custody…

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Details
AGLC
R v Barry [2011] QCA 119
Case
[2011] QCA 119
Decision Date

CaseChat Overview and Summary

The appellant in this case, Barry, was convicted of unlawful wounding and breaching a suspended sentence. The matter was heard in the appellate court of the state where Barry was originally sentenced. Barry appealed against the sentence imposed by the lower court, arguing that it was manifestly excessive. The sentence in question was three years imprisonment for the unlawful wounding offence, to be served cumulatively with the remaining three years of the suspended sentence, resulting in an effective sentence of six years imprisonment with a parole eligibility date after 19 months. Barry submitted that the sentencing judge failed to properly apply the totality principle.

The primary legal issue before the court was whether the sentence was manifestly excessive, given the appellant's troubled history of alcohol abuse and violence, which had significantly influenced his criminal conduct. The court needed to determine if the sentence imposed was disproportionate to the crimes committed and whether the sentencing judge had appropriately considered the totality principle. This principle requires that the totality of the sentence for all offences should not be greater than the sum of the separate appropriate sentences for each offence, taking into account the need for punishment, deterrence, and rehabilitation.

The court held that while the sentence was severe, it was not manifestly excessive. However, the court found that the sentencing judge had not fully considered the totality principle. The court determined that the appropriate sentence for the unlawful wounding offence should have been two years imprisonment, considering the totality principle. Therefore, the court allowed the appeal against the sentence, reduced the term of imprisonment for the unlawful wounding offence to two years, and confirmed the rest of the sentence and orders made at the first instance. The court granted leave to appeal against the sentence and varied the sentence as per the ruling.

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 two years the term of imprisonment imposed for the unlawful wounding offence on the ex officio indictment;

4. The sentence imposed and orders made at first instance are otherwise confirmed.

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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