R v Bodsworth - [1994] QCA 376

IN THE COURT OF APPEAL [1994] QCA 376

SUPREME COURT OF QUEENSLAND

C.A. No. 302 of 1994

Before

Fitzgerald P. McPherson JA. Cullinane J.

[R. v. Bodsworth]

BETWEEN:

T H E Q U E E N

NATHAN BODSWORTH Applicant
Fitzgerald P. McPherson JA. Cullinane J.

Judgment delivered 23/09/94

Reasons for judgment of the President and Cullinane J, separate concurring reasons of McPherson JA.

Application for leave to appeal refused.

CATCHWORDS:CRIMINAL LAW - Sentence - Burglary - Unlawful wounding - applicant and co-accused broke into unit of 79 year old woman - applicant stood by whilst co-accused bashed complainant with piece of wood - youthful applicant under the influence of an older criminal - early plea and co- operation - whether custodial sentence appropriate considering applicant's age, assistance and participation

Counsel:Mr. C. Callaghan for the applicant

Ms. L. Clare for the respondent

Solicitors:Gilshenan and Luton for the applicant

Director of Prosecutions for the respondent

Hearing Date: 13/09/94

REASONS FOR JUDGMENT -THE PRESIDENT and CULLINANE J.

Judgment delivered 23/09/94

This is an application for leave to appeal against a sentence imposed in the District Court at Brisbane on 22 July 1994 for offences of burglary and unlawful wounding. The applicant was convicted on his own plea, and was sentenced to imprisonment for four months and placed on probation for three years. Only one sentence was imposed in respect of both offences. The applicant was born on 30 June 1975, was seventeen years old at the time of commission of the offences on 23 June 1993, and has no previous criminal history. The application is based on the sole ground that the sentence is manifestly excessive.

The applicant and his co-accused, one Wehramann, were drinking in Wehramann's unit on the evening of 22 June 1993 and were "pretty drunk" when Wehramann said: "Why don't we go next door and rob the lady next door?"

Wehramann resided in the unit adjacent to the unit of the complainant, who was a seventy-nine year old woman living on her own. The applicant, who said he thought Wehramann was joking, agreed. The notion of a joke is not easy to reconcile with the applicant's description of his co-accused as "pretty violent" at the time, or the applicant's statement that he was "really scared". Further, the talk of committing the offence suggested

had begun hours earlier. The applicant knew that Wehramann was prone to violence, that the complainant was in her unit and that Wehramann had previously been abusive towards her.

When the co-accused went outside, at about 1.00 a.m. on 23 June 1993, the applicant followed him and saw him getting into the complainant's unit. Wehramann had removed a flyscreen from the kitchen window of the complainant's unit and forced the window, thereby gaining entry. After climbing in the unit, he came around and opened the door for the applicant.

At the time, Wehramann had with him a table leg, a piece of wood about 18 inches by 1.5 inches, and a pen knife. When…

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.

Keep reading for free

Create a free CaseChat account to read R v Bodsworth and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1994] QCA 376
Decision Date: 23/09/1994

CaseChat Overview and Summary

In the case of R v Bodsworth, the applicant sought leave to appeal against a sentence imposed by the District Court at Brisbane. The applicant, Nathan Bodsworth, was convicted of burglary and unlawful wounding following an incident in which he and a co-accused broke into the unit of a 79-year-old woman. The co-accused assaulted the woman while the applicant stood by. The District Court sentenced Bodsworth to imprisonment for four months, which was suspended for three years. The applicant argued that the sentence was manifestly excessive. The appeal hinged on whether the sentence was appropriate given Bodsworth's age, his limited role in the crime, his early plea, and his cooperation with authorities.

The court examined the nature of the applicant's involvement in the crime, weighing his age and immaturity against his active participation in the burglary and assault. Bodsworth was seventeen years old at the time of the offence and had no prior criminal history. Despite his young age, the court found that his culpability was significant. He had willingly participated in the burglary, was aware of the potential for violence, and did nothing to prevent the assault. Additionally, Bodsworth had shown remorse by entering an early guilty plea, cooperating with the police, and expressing regret to the victim. The court considered these factors but concluded that Bodsworth's active involvement in the crime necessitated a custodial sentence to satisfy the principles of punishment and deterrence.

The Court of Appeal upheld the original sentence, finding that a term of imprisonment was the only appropriate sentence in the circumstances. The court noted that while young offenders should generally be kept out of prison, serious offences involving violence sometimes require a custodial sentence. Despite the applicant's favourable personal circumstances and cooperation with authorities, the gravity of his involvement in the crime meant that imprisonment was necessary. The application for leave to appeal was refused, affirming the District Court's sentencing decision.

Orders