R v Beer

[2000] QCA 193

SUPREME COURT OF QUEENSLAND

CITATION:

R v Beer  [2000] QCA 193

PARTIES:

R
v
BEER, Barry Joseph
(applicant)

FILE NO/S:

CA No 404 of 1999
SC No 557 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Sentence application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 May 2000

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2000

JUDGES:

McMurdo P, Thomas JA, Helman J
Joint reasons for judgment of McMurdo P and Thomas JA; separate reasons of Helman J dissenting

ORDER:

Application for leave to appeal against sentence granted.  Appeal allowed.  Sentence imposed on 11 November 1999 set aside and instead impose a sentence of 7 years imprisonment.

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 – application for leave to appeal against sentence – whether inconsistencies between complainant’s evidence and that of another witness, the position of blood stains and the bruise to the applicant’s eye precluded the learned sentencing judge from accepting the complainant’s evidence in full – whether sentence was manifestly excessive – comparable sentences considered – whether a serious violent offender declaration was necessary

R v Bojovic [1999] QCA 206; CA No 4 of 1999, 8 June 1999, applied
R v Brown CA No 155 of 1996, 26 July 1996, considered
R v Collins CA No 238 of 1998, 18 September 1998, applied
R v McCartney [1999] QCA 238; CA No 13 of 1999, 22 June 1999, followed
R v Morrison [1999] 1 QdR 397, applied
R v Newcombe and Middleton [1999] QCA 408; CA Nos 101 and 143 of 1999, 28 September 1999, followed
R v Olbrich (1999) 73 ALJR 1550, considered
R v Thompson CA No 575 of 1996, 16 April 1997, considered

COUNSEL:

A Boe (sol) for the applicant
N Weston for the respondent

SOLICITORS:

Boe and Callaghan for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P AND THOMAS JA:  On 10 November 1999, after a three day trial, the applicant was acquitted of attempted murder but convicted of the alternative count of causing grievous bodily harm with intent. He applies for leave to appeal against his sentence of eight years imprisonment with a declaration that he was convicted of a serious violent offence as part of the sentence. 

The fact-finding on sentence

1. Mr Boe, for the applicant, first submits that the learned sentencing judge, the Chief Justice, erred in finding beyond reasonable doubt that the applicant came into the room armed and committed the offence in the manner stated by the complainant. Mr Boe argues that the judge should have found, consistent with the jury's verdict, the applicant's evidence at trial and the submissions made on behalf of the applicant at sentence, that the applicant was assaulted by the complainant but over-reacted in self-defence, not having a…