R v BDZ - [2023] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDZ [2023] QCA 59

PARTIES:

R
v
BDZ
(applicant)

FILE NO/S:

CA No 219 of 2021
DC No 714 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 13 August 2021 (Smith DCJA)

DELIVERED ON:

Date of Order: 15 March 2023
Date of Publication of Reasons: 4 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2023

JUDGES:

Dalton JA and Gotterson AJA and Henry J

ORDER:

Date of Order: 15 March 2023

The application for leave to appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to seven years imprisonment for the offence of grievous bodily harm and lesser concurrent sentences of imprisonment for two offences of assault occasioning bodily harm and one drug possession offence and one summary charge of possessing utensils or pipes that had been used – where the applicant’s seven week old baby received injuries resulting in significant brain damage and permanent physical disabilities – where no early parole eligibility date was set – whether the applicant’s sentence was manifestly excessive in the absence of early parole eligibility

Corrective Services Act 2006 (Qld), s 184(2)
Criminal Code (Qld), s 1, s 317, s 320
Penalties and Sentences Act 1992 (Qld), s 9(c)(i), s 9(10A), s 161B(5)

R v FJ; Ex parte Attorney-General (Qld)[2005] QCA 15, considered
R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v SAV; Ex parte Attorney-General (Qld)[2006] QCA 328, considered

COUNSEL:

A M Hoare and C Bernardin for the applicant
E L Kelso for the respondent

SOLICITORS:

Hodgson Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

DALTON JA: I agree with the reasons proposed by Henry J.
GOTTERSON AJA: I agree with the reasons of Henry J for the order made on 15 March 2023 refusing leave to appeal.
HENRY J: The applicant was violent to his baby, inflicting permanent catastrophic harm. He applied for leave to appeal his sentence of seven years imprisonment without the fixing of an early parole eligibility date on the ground it was manifestly excessive. The Court refused the application at the hearing. These reasons explain why such an order was made.
The applicant’s baby was about seven weeks old when taken to hospital in an unconscious state, breathing shallowly. Various injuries were detected, some older than others.
About three weeks earlier, almost all of the baby’s left ribs had been fractured in an apparently simultaneous single act of compression. Another old injury, which may have occurred at the same time as the breaking of the ribs, was a fracture of the baby’s femur. It had to have been caused…

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 BDZ

Details

AGLC: R v BDZ [2023] QCA 59
Case: [2023] QCA 59
Decision Date: 4 April 2023

CaseChat Overview and Summary

The case of R v BDZ involved the applicant appealing against a sentence imposed following a series of criminal convictions. The applicant was sentenced to seven years imprisonment for grievous bodily harm, with concurrent lesser sentences for two counts of assault occasioning bodily harm, drug possession, and possessing utensils or pipes that had been used. The appeal focused on the applicant's contention that the sentence was manifestly excessive, particularly in the absence of early parole eligibility. The case reached the appellate court, which had to decide whether the sentence was appropriate and whether there were grounds for interference.

The primary legal issue before the court was whether the applicant's sentence was manifestly excessive. The court considered the severity of the crimes committed, the impact of the applicant's actions on the victim, and the absence of early parole eligibility. The court had to balance the need for punishment and deterrence with the circumstances surrounding the offences and the applicant's personal situation. In particular, the court focused on the significant injuries sustained by the applicant's seven-week-old baby, which resulted in substantial brain damage and permanent physical disabilities.

In dismissing the application for leave to appeal, the court held that the sentence imposed was not manifestly excessive. The court acknowledged the severity of the applicant's actions and the profound impact on the victim but found that the sentence reflected the gravity of the crimes. The court emphasised that the absence of early parole eligibility did not render the sentence excessive, as it was necessary to ensure adequate punishment and deterrence. The court concluded that the sentence was appropriate and that there were no grounds for interference.

No further orders were made by the court beyond dismissing the application for leave to appeal. The applicant's sentence of seven years imprisonment for grievous bodily harm, with concurrent sentences for the other offences, was upheld. The decision confirms the importance of considering the full context of criminal offences and the need for appropriate punishment, while also recognising the potential for significant harm caused by an offender's actions.

Orders

Orders of the court

Date of Order: 15 March 2023

The application for leave to appeal against sentence is 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 BDZ [2023] QCA 59
PARTIES:	R v BDZ (applicant)
FILE NO/S:	CA No 219 of 2021 DC No 714 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 13 August 2021 (Smith DCJA)
DELIVERED ON:	Date of Order: 15 March 2023 Date of Publication of Reasons: 4 April 2023
DELIVERED AT:	Brisbane
HEARING DATE:	15 March 2023
JUDGES:	Dalton JA and Gotterson AJA and Henry J
ORDER:	Date of Order: 15 March 2023 The application for leave to appeal against sentence is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to seven years imprisonment for the offence of grievous bodily harm and lesser concurrent sentences of imprisonment for two offences of assault occasioning bodily harm and one drug possession offence and one summary charge of possessing utensils or pipes that had been used – where the applicant’s seven week old baby received injuries resulting in significant brain damage and permanent physical disabilities – where no early parole eligibility date was set – whether the applicant’s sentence was manifestly excessive in the absence of early parole eligibility Corrective Services Act 2006 (Qld), s 184(2) Criminal Code (Qld), s 1, s 317, s 320 Penalties and Sentences Act 1992 (Qld), s 9(c)(i), s 9(10A), s 161B(5) R v FJ; Ex parte Attorney-General (Qld)[2005] QCA 15, considered R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v SAV; Ex parte Attorney-General (Qld)[2006] QCA 328, considered
COUNSEL:	A M Hoare and C Bernardin for the applicant E L Kelso for the respondent
SOLICITORS:	Hodgson Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent