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R v Berryman

R v Berryman

Case [2005] QCA 471 16 December 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Berryman [2005] QCA 471

PARTIES:

R
v
BERRYMAN, Joshua James
(applicant)

FILE NO/S:

CA No 282 of 2005
DC No 6 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Stanthorpe

DELIVERED ON:

16 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2005

JUDGES:

Williams JA, Helman and Chesterman JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where applicant pleaded guilty to doing grievous bodily harm – sentenced to three years’ imprisonment suspended after serving 12 months – applicant smashed an unbroken glass into the complainant’s face – complainant suffered significant scarring – whether the sentence imposed was manifestly excessive – comparison with similar cases

Criminal Code Act 1899 (Qld), s 1, s 320, s 323, s 668F(2)

R v Bryan; ex parte A-G (Qld) [2003] QCA 018; (2003) 137 A Crim R 489, considered
R v Harvey [2003] QCA 286; CA No 112 of 2003, 10 July 2003, considered
R v Hays; ex parte A-G (Qld) [1999] QCA 443; CA No 271 of 1999, 29 October 1999, considered
R vJasser [2004] QCA 014; CA No 277 of 2003, 9 February 2004, considered

R v Kent [2004] QCA 83; CA No 61 of 2004, 23 March 2004, considered
R vOrreal [2002] QCA 547; CA No 296 of 2002, 19 December 2002, considered
R v Rehavi [1999] 2 Qd R 640, considered
R v Toohey [2001] QCA 149; CA No 351 of 2000, 19 April 2001, considered
R v Tupou; ex parte A-G [2005] QCA 179; CA No 88 of 2005, 31 May 2005, considered
R v Weare [2002] QCA 183; CA No 54 of 2002, 31 May 2002, considered

COUNSEL:

A W Moynihan for the applicant
M R Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The applicant pleaded guilty on 12 October 2005 to one count of doing grievous bodily harm and was sentenced to three years’ imprisonment suspended after serving 12 months with an operational period of three years. He seeks leave to appeal against that sentence on the ground that it is manifestly excessive. The incident in question occurred on 20 March 2005 in a hotel in Stanthorpe. Both the complainant and the applicant had been drinking there for some time until the relevant events occurred in the early hours of the Sunday morning.

The complainant (aged 23) was with some companions and there was apparently some friendly jostling among them. The applicant (aged 24 at the time) had been drinking since playing football on the Saturday afternoon and…

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 Berryman

Details

AGLC: R v Berryman [2005] QCA 471
Case: [2005] QCA 471
Decision Date: 16 December 2005

CaseChat Overview and Summary

In the case of R v Berryman, the appellant, Berryman, had pleaded guilty to a charge of inflicting grievous bodily harm upon a complainant by smashing an unbroken glass into the complainant's face. The resulting injuries were severe, leading to significant scarring. Berryman was sentenced to a term of three years’ imprisonment, with the sentence suspended after Berryman had served 12 months. Dissatisfied with the sentence, Berryman sought to appeal, arguing that the sentence was manifestly excessive. The appeal was heard by the court which was tasked with considering whether the sentence imposed was manifestly excessive and whether it warranted any adjustment.

The court considered the principle of sentencing proportionality, examining the severity of the offence and the sentence imposed, and compared it with similar cases to determine if the sentence was indeed manifestly excessive. The court acknowledged the gravity of the injuries inflicted and the violence involved, but ultimately found that the sentence was not manifestly excessive. The court relied on precedents where similar offences had resulted in sentences of a comparable nature, thereby reinforcing the appropriateness of the sentence in this case.

Given the findings, the court dismissed the appeal against the sentence. The reasoning was grounded in the proportionality of the sentence relative to the offence and the consistency with sentencing in similar cases. The court determined that the sentence imposed was neither manifestly excessive nor inappropriate, and therefore, Berryman’s application for leave to appeal against the sentence was dismissed. No further orders were made.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Berryman [2005] QCA 471

Most Recent Citation

R v Wing [2007] QCA 138

Cases citing this decision · 10 of 10 shown

R v Campbell
[2016] QCA 42

…a sentence of two and a half years imprisonment suspended earlier than the half-way point to reflect the mitigating features. [4][2006] QCA 8. [5][2005] QCA 471. [6][2006] QCA 525. [7]In reply the prosecutor stated that the delay in the conclusion of this matter by way of a trial was not unusual at Southport; the…
R v Schipp
[2013] QCA 197 Para 1

…[2003] QCA 96; R v Curley [2002] QCA 140; Van Wyk v Police [2002] SASC 248 and R v Burnham [1999] QCA 99. [20] R v Bell [2000] QCA 485; R v Berryman [2005] QCA 471, (2005) 159 A Crim R 65; R v Tupou; ex parte Attorney-General (Qld) [2005] QCA 179. [21] Van Wyk v Police [2002] SASC 248.…
R v Colenso
[2012] QCA 216

…scarring – whether sentence manifestly excessive R v Bailey [2009] QCA 251, considered R v Berryman (2005) 159 A Crim R 65; [2005] QCA 471, considered R v Fookes [1997] QCA 39, considered R v Hallett [1997] QCA 222, considered R v Rehavi [1999] 2 Qd R 640; [1998] QCA 157, considered R v Sokol [2011] QCA 20, cited…
R v Messent
[2011] QCA 125 Para 1

…y the complainant were not life threatening and resulted in no cognitive deficits, as is the case here, and the applicant had pleaded guilty. [53][2005] QCA 471. [54][2008] QCA 150. [55][2009] QCA 68.…
R v Bailey
[2009] QCA 251 Para 1

…wing cases in contending that the sentence imposed was not manifestly excessive: R v Jones [2008] QCA 181, R v Jaramillo [2007] QCA 420, R v Berryman [2005] QCA 471, R v Hays; ex parte A-G [1999] QCA 443.…
R v Bierton
[2009] QCA 68

…three and a half years – whether this sentence is manifestly excessive or appropriate R v Amituanai [1995] QCA 80, cited R v Berryman [2005] QCA 471, cited R v Toohey [2001] QCA 149, cited R v Walsh [2008] QCA 391, cited COUNSEL: P E Nolan for the applicant G P Cash for the respondent SOLICITORS: A W Bale & Sons…
R v Jones
[2008] QCA 181

…e good character and remorseful – whether sentence manifestly excessive Lowe v The Queen (1984) 154 CLR 606, cited R v Berryman [2005] QCA 471, distinguished R v Hays; ex parte A-G [1999] QCA 443, considered R v Jasser [2004] QCA 14, considered R v Kimmins [2006] QCA 438, considered R v Toohey [2001] QCA 149, con…
R v Jaramillo
[2007] QCA 420

…r parole after 2 years – whether the sentence was manifestly excessive having regard to certain mitigating factors R v Berryman [2005] QCA 471, distinguished R v Bryan; Ex parte A-G (Qld) [2003] QCA 18, distinguished R v Rehavi [1998] QCA 157, distinguished COUNSEL: A Moynihan SC for the appellant D Meredith for…
R v Bennett
[2007] QCA 324

…ent 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-Genera l [1999] QCA 443, CA No 271 of 1999, 29 October 1999, cited R v Rosenberger; ex parte At…
R v Wing
[2007] QCA 138

…nifestly excessive Amituanai v The Queen (1995) 78 A Crim R 588, distinguished R v Berryman [2005] QCA 471; CA No 282 of 2005, 16 December 2005, distinguished R v Blackett (1990) 50 A Crim R 228, distinguished R v Bryan; Ex parte A-G [2003] QCA 18; (2003) 137 A Crim R 489, applied R v Deans [2000] QCA 516; CA No…

View all 10 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Tupou; Ex Parte A-G (Qld)
[2005] QCA 179 Para 1

…The next case is R v Tupou ; ex parte Attorney-General [2005] QCA 179. The young offender there had pleaded guilty to doing grievous bodily harm. The circumstances were that there was an unprovoked, cowardly and vicious attack on the complainant; the attack involved punching a much more lightly built man and then…
R v Kent
[2004] QCA 83 Para 1

…entence of two years should be suspended after eight months. In support of that submission he referred to R v Toohey [2001] QCA 149, R v Kent [2004] QCA 83, R v Jasser [2004] QCA 14 and R v Orreal [2002] QCA 547. The first thing to be noted about those four cases is that in each instance the offence for which th…
R v Jasser
[2004] QCA 14 Para 1

…d be suspended after eight months. In support of that submission he referred to R v Toohey [2001] QCA 149, R v Kent [2004] QCA 83, R v Jasser [2004] QCA 14 and R v Orreal [2002] QCA 547. The first thing to be noted about those four cases is that in each instance the offence for which the offender was being punis…
R v Harvey
[2003] QCA 286 Para 1

…Brief mention should also be made of R v Bryan; ex parte Attorney-General [2003] 137 A Crim R 489 and R v Harvey [2003] QCA 286. The former was a far more serious case of doing grievous bodily harm. There a young man had been stabbed while innocently walking in a public street. This Court increased the sentence o…
R v Orreal
[2002] QCA 547 Para 1

…nths. In support of that submission he referred to R v Toohey [2001] QCA 149, R v Kent [2004] QCA 83, R v Jasser [2004] QCA 14 and R v Orreal [2002] QCA 547. The first thing to be noted about those four cases is that in each instance the offence for which the offender was being punished was unlawful wounding whic…
R v Weare
[2002] QCA 183 Para 1

…The next case referred to was R v Weare [2002] QCA 183. That involved a plea of guilty to doing grievous bodily harm. The victim was struck from behind with the branch of a tree causing serious damage to an eye. The sentence initially imposed was three and a half years’ imprisonment. This Court held that the sent…
R v Toohey
[2001] QCA 149 Para 1

…s of this case the head sentence of two years should be suspended after eight months. In support of that submission he referred to R v Toohey [2001] QCA 149, R v Kent [2004] QCA 83, R v Jasser [2004] QCA 14 and R v Orreal [2002] QCA 547. The first thing to be noted about those four cases is that in each instance…
R v Hayes; ex parte Attorney-General
[1999] QCA 443 Para 1

…In R v Hays; ex parte Attorney-General [1999] QCA 443, the Attorney-General appealed against a non-custodial sentence imposed on a 24 year old man who pleaded guilty to unlawful wounding. The offender struck the respondent in the region of the mouth with a glass. The complainant experienced considerable pain and…
R v Bryan; Ex parte Attorney-General
[2003] QCA 018

…ve – comparison with similar cases Criminal Code Act 1899 (Qld), s 1, s 320, s 323, s 668F(2) R v Bryan; ex parte A-G (Qld) [2003] QCA 018; (2003) 137 A Crim R 489, considered R v Harvey [2003] QCA 286; CA No 112 of 2003, 10 July 2003, considered R v Hays; ex parte A-G (Qld) [1999] QCA 443; CA No 271 of 1999, 29…
[2004] QCA 014
[2004] QCA 014

…uly 2003, considered R v Hays; ex parte A-G (Qld) [1999] QCA 443; CA No 271 of 1999, 29 October 1999, considered R v Jasser [2004] QCA 014; CA No 277 of 2003, 9 February 2004, considered R v Kent [2004] QCA 83; CA No 61 of 2004, 23 March 2004, considered R v Orreal [2002] QCA 547; CA No 296 of 2002, 19 December 2…

Legislation cited in this decision · 1

Criminal Code Act 1899 (Qld)
1 1 mention

CITATION:	R v Berryman [2005] QCA 471
PARTIES:	R v BERRYMAN, Joshua James (applicant)
FILE NO/S:	CA No 282 of 2005 DC No 6 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Stanthorpe
DELIVERED ON:	16 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	6 December 2005
JUDGES:	Williams JA, Helman and Chesterman JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where applicant pleaded guilty to doing grievous bodily harm – sentenced to three years’ imprisonment suspended after serving 12 months – applicant smashed an unbroken glass into the complainant’s face – complainant suffered significant scarring – whether the sentence imposed was manifestly excessive – comparison with similar cases Criminal Code Act 1899 (Qld), s 1, s 320, s 323, s 668F(2) R v Bryan; ex parte A-G (Qld) [2003] QCA 018; (2003) 137 A Crim R 489, considered R v Harvey [2003] QCA 286; CA No 112 of 2003, 10 July 2003, considered R v Hays; ex parte A-G (Qld) [1999] QCA 443; CA No 271 of 1999, 29 October 1999, considered R vJasser [2004] QCA 014; CA No 277 of 2003, 9 February 2004, considered R v Kent [2004] QCA 83; CA No 61 of 2004, 23 March 2004, considered R vOrreal [2002] QCA 547; CA No 296 of 2002, 19 December 2002, considered R v Rehavi [1999] 2 Qd R 640, considered R v Toohey [2001] QCA 149; CA No 351 of 2000, 19 April 2001, considered R v Tupou; ex parte A-G [2005] QCA 179; CA No 88 of 2005, 31 May 2005, considered R v Weare [2002] QCA 183; CA No 54 of 2002, 31 May 2002, considered
COUNSEL:	A W Moynihan for the applicant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent