R v Bennett - [2007] QCA 324

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bennett [2007] QCA 324

PARTIES:

R
v
BENNETT, Damien Harley
(applicant)

FILE NO/S:

CA No 214 of 2007
DC No 1389 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

4 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2007

JUDGES:

Keane and Holmes JJA and Jones J
Separate reasons for judgment, each concurring as to the order made.

ORDER:

Application for leave to appeal sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant sentenced to 18 months imprisonment with parole release date fixed at 4 January 2008 for assault occasioning bodily harm whilst armed – where the applicant struck the victim whilst holding in glass in the hand used to strike – where injury to complainant insufficient to constitute wounding - whether sentence manifestly excessive.

Criminal Code 1899 (Qld), s 339(1)(3), s 323(1)(a)

R v Berryman [2005] QCA 471, CA No 282 of 2005,
16 December 2005, cited
R v Hays; ex parte Attorney-General [1999] QCA 443, CA No 271 of 1999, 29 October 1999, cited
R v Rosenberger; ex parte Attorney-General [1995] 1 Qd R 677, [1994] QCA 488, cited

R v Toohey[2001] QCA 149, CA No 351 of 2000, 19 April 2001, cited

COUNSEL:

S J Hamlyn-Harris counsel for the applicant
T A Fuller for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant
Director of Public Prosecutions (Queensland) for the respondent

JONES J: On 4th September 2007 the applicant pleaded guilty to one count of assault occasioning bodily harm whilst armed. He was sentenced to 18 months' imprisonment with a parole release date of 4 January 2008, that is four months after sentence. He seeks leave to appeal to this Court on the ground that the sentence is manifestly excessive.

His offending occurred at an inner-city hotel in Brisbane where he became intoxicated and commenced to abuse other patrons. He was warned by hotel security staff and allowed to remain but he persisted in this conduct.

In the course of a verbal altercation he struck the complainant with his left hand in which he was holding a pint glass. When it struck the complainant's head the glass shattered causing superficial abrasions and scratches to the complainant's ear. The injury was not sufficient to constitute a wounding.

The appellant's actions fall within a class of offence colloquially known as "glassing". The instances of this type of offending range from deliberate breaking of the glass or bottle to use as a weapon to, as is suggested here, intending only to punch but incidentally having the glass in the hand. The damage inflicted can range between serious facial disfigurement or loss of vision on the one hand and superficial injury on the other. The charges vary between doing grievous…

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 Bennett

Details

AGLC: R v Bennett [2007] QCA 324
Case: [2007] QCA 324
Decision Date: 4 October 2007

CaseChat Overview and Summary

The applicant in this case, Bennett, appealed against the sentence imposed by the County Court of Victoria. Bennett had been found guilty of assault occasioning bodily harm while armed, specifically having used a glass in his hand to strike the victim. The County Court sentenced Bennett to 18 months imprisonment with a parole release date set for 4 January 2008. The injury sustained by the victim was not severe enough to qualify as wounding, but the court considered the use of a weapon and the nature of the assault in arriving at the sentence. Bennett argued that the sentence was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, warranting a reduction. The court needed to consider the severity of the offence, the nature of the weapon used, the harm caused, and whether the sentence was disproportionate given the circumstances. The court also had to assess if the sentence fell outside the range of sentences that could be considered appropriate for the offence, as per the principles of sentencing.

In dismissing the appeal, the court held that the sentence was not manifestly excessive. The court recognised the use of a glass as a weapon and the potential danger posed by the applicant, which justified a significant custodial sentence. The court emphasised that while the injury to the victim was not severe, the assault involved the use of a dangerous object, and the sentence reflected this. The court found that the sentence was within the range of appropriate sentences for the offence and did not constitute an error in principle or a manifest excess.

No orders were made, as the application for leave to appeal the sentence was refused.

Orders

Orders of the court

Application for leave to appeal sentence refused

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 Bennett [2007] QCA 324
PARTIES:	R v BENNETT, Damien Harley (applicant)
FILE NO/S:	CA No 214 of 2007 DC No 1389 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	4 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2007
JUDGES:	Keane and Holmes JJA and Jones J Separate reasons for judgment, each concurring as to the order made.
ORDER:	Application for leave to appeal sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant sentenced to 18 months imprisonment with parole release date fixed at 4 January 2008 for assault occasioning bodily harm whilst armed – where the applicant struck the victim whilst holding in glass in the hand used to strike – where injury to complainant insufficient to constitute wounding - whether sentence manifestly excessive. Criminal Code 1899 (Qld), s 339(1)(3), s 323(1)(a) R v Berryman [2005] QCA 471, CA No 282 of 2005, 16 December 2005, cited R v Hays; ex parte Attorney-General [1999] QCA 443, CA No 271 of 1999, 29 October 1999, cited R v Rosenberger; ex parte Attorney-General [1995] 1 Qd R 677, [1994] QCA 488, cited R v Toohey[2001] QCA 149, CA No 351 of 2000, 19 April 2001, cited
COUNSEL:	S J Hamlyn-Harris counsel for the applicant T A Fuller for the respondent
SOLICITORS:	Robertson O’Gorman for the applicant Director of Public Prosecutions (Queensland) for the respondent