R v Barry - [2004] QCA 105

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barry [2004] QCA 105

PARTIES:

R
v
BARRY, Raymond Levick

(applicant)

FILE NO/S:

CA No 66 of 2004

DC No 564 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for setting aside notice of abandonment.

Appeal against Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

8 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2004

JUDGES:

Davies JA, Williams JA, Holmes J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

1.   Imputed application for setting aside the notice of abandonment allowed.

2.   Application for leave to appeal against sentence reinstated.

3.   Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – GENERAL PRINCIPLES – where applicant and co-offender pleaded guilty to grievous bodily harm – where co-offender was the aggressor and leader in the attack – where co-offender had previous convictions for assault and was on probation for one at the time of the offence – where applicant did not cause the grievous bodily harm and had a minor criminal history – whether the sentence imposed was manifestly excessive – whether the sentence imposed properly reflected the respective levels of criminality in conduct as between the applicant and his co-offender

Criminal Code (Qld), s 320

Criminal Practice Rules, r 69

R v Bennett and Bennett [1998] QCA 393; CA No 443 and CA No 229 of 1998, 26 February 1999, considered
R v Craske [2002] QCA 49; CA No 11 of 2002, 1 March 2002, considered
R v Cuff, ex parte A-G [2001] QCA 351; [2001] ACL Rep 130 QLD 229, considered
R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered
R v Elkington CA No 33 of 1998, 27 February 1998, considered
R v Harvey [2003] QCA 286; CA No 112 of 2003, 10 July 2003, considered

Tabe v R [1983] 2 Qd R 60, applied

COUNSEL:

G Maguire for the applicant

M J Copley for the respondent

SOLICITORS:

Ryan & Bosscher (Southport) for the applicant

Department of Public Prosecutions (Queensland) for the respondent

HOLMES J: The application as before us is framed as one for an extension of time within which to appeal, in circumstances in which the applicant's original application for leave to appeal against sentence was abandoned.

It seems to me that it is better regarded as an application to have the abandonment set aside and the application for leave to be reinstated under rule 69 of the Criminal Practice Rules. Nothing really turns on that.

The applicant pleaded guilty on 28th of January 2004 to one count of grievous bodily harm and was sentenced to two years imprisonment suspended after six months for an operational period of three years. On the 3rd of February 2004, his solicitors at…

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 Barry

Details

AGLC: R v Barry [2004] QCA 105
Case: [2004] QCA 105
Decision Date: 8 April 2004

CaseChat Overview and Summary

In the case of R v Barry, the applicant contested the sentence imposed by the County Court for grievous bodily harm. The applicant and his co-offender had both pleaded guilty to the offence, with the co-offender being the primary aggressor and leader of the attack. The co-offender had a history of assault convictions and was on probation at the time of the offence, whereas the applicant had a minor criminal record and did not directly cause the grievous bodily harm. The applicant argued that the sentence imposed was excessively harsh compared to his co-offender, who received a lesser sentence, and that the sentence did not adequately reflect the disparity in their respective levels of criminality.

The central legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive and whether it appropriately reflected the differences in the roles and criminal histories of the applicant and his co-offender. The court had to determine if the sentence took into account the principle of parity, ensuring that sentences imposed on co-offenders are commensurate with their individual roles and culpability in the offence. The court also needed to consider whether the sentencing judge had adequately weighed the factors relevant to the applicant's culpability and criminal history.

The court concluded that while the sentence imposed on the applicant was severe, it did not find it to be manifestly excessive. The sentencing judge had considered the relevant factors, including the disparity in roles and criminal histories between the applicant and his co-offender. The court determined that the sentence reflected the respective levels of criminality and culpability, and was not disproportionate. Consequently, the application for leave to appeal against the sentence was dismissed, and the application for setting aside the notice of abandonment was allowed, with the application for leave to appeal reinstated.

Orders

Orders of the court

1. Imputed application for setting aside the notice of abandonment allowed.

2. Application for leave to appeal against sentence reinstated.

3. Application for leave to appeal against sentence dismissed.

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 Barry [2004] QCA 105
PARTIES:	R v BARRY, Raymond Levick (applicant)
FILE NO/S:	CA No 66 of 2004 DC No 564 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for setting aside notice of abandonment. Appeal against Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED EX TEMPORE ON:	8 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	8 April 2004
JUDGES:	Davies JA, Williams JA, Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	1. Imputed application for setting aside the notice of abandonment allowed. 2. Application for leave to appeal against sentence reinstated. 3. Application for leave to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – GENERAL PRINCIPLES – where applicant and co-offender pleaded guilty to grievous bodily harm – where co-offender was the aggressor and leader in the attack – where co-offender had previous convictions for assault and was on probation for one at the time of the offence – where applicant did not cause the grievous bodily harm and had a minor criminal history – whether the sentence imposed was manifestly excessive – whether the sentence imposed properly reflected the respective levels of criminality in conduct as between the applicant and his co-offender Criminal Code (Qld), s 320 Criminal Practice Rules, r 69 R v Bennett and Bennett [1998] QCA 393; CA No 443 and CA No 229 of 1998, 26 February 1999, considered R v Craske [2002] QCA 49; CA No 11 of 2002, 1 March 2002, considered R v Cuff, ex parte A-G [2001] QCA 351; [2001] ACL Rep 130 QLD 229, considered R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered R v Elkington CA No 33 of 1998, 27 February 1998, considered R v Harvey [2003] QCA 286; CA No 112 of 2003, 10 July 2003, considered Tabe v R [1983] 2 Qd R 60, applied
COUNSEL:	G Maguire for the applicant M J Copley for the respondent
SOLICITORS:	Ryan & Bosscher (Southport) for the applicant Department of Public Prosecutions (Queensland) for the respondent