R v Barry

[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…