R v Braithwaite - [2004] QCA 82

SUPREME COURT OF QUEENSLAND

CITATION:

R v Braithwaite [2004] QCA 82

PARTIES:

R
v
BRAITHWAITE, John James
(applicant)

FILE NO/S:

CA No 371 of 2003
DC No 2187 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2004

JUDGES:

McMurdo P, Jerrard JA and Philippides J
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 - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMNET - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - CIRCUMSTANCES OF OFFENDER – where applicant sentenced to 6 years’ imprisonment for grievous bodily harm – where assault on police officer in execution of his duty – where applicant not proven to have used a weapon in the attack – where applicant under influence of amphetamine at time of offence - where applicant has lengthy criminal history – whether sentence excessive in circumstances

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMNET - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE – DETERRENCE – where applicant convicted of grievous bodily harm against a police officer in execution of his duty – where sentence imposed appropriate on basis of deterring similar attacks on police officers

R v Nagy [2003] QCA 175; CA No 24 of 2003, 2 May 2003, applied

COUNSEL:

The applicant appeared on his own behalf
DA Holliday for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with Jerrard JA that, for the reasons he gives, the application for leave to appeal against sentence should be refused. I wish only to add the following observations by way of emphasis.

It is commendable that the applicant in his written submissions to this Court has emphasised his remorse for hurting police officer Gordon, his determination to stay off drugs, his desire to return to his supportive family and his opportunity for employment with a family member upon his release from prison. These matters provide some hope for the applicant's rehabilitation, despite his extensive criminal history.

Despite these mitigating matters and the applicant's plea of guilty, the effective sentence imposed, of six years imprisonment with a recommendation for eligibility for post-prison community based release after two and a half years, was in no way manifestly excessive. It reflected the overall criminality of all the applicant's offending, not just the most serious count of doing grievous bodily harm to police officer Gordon. In addition to that count, the applicant assaulted and did bodily harm to police officer Keogh and unlawfully used and then burnt a Falcon station wagon belonging to Mr Eberhardt. There is no evidence as to the value of that car but no doubt, whatever its monetary value, its loss caused inconvenience and hardship…

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 Braithwaite

Details

AGLC: R v Braithwaite [2004] QCA 82
Case: [2004] QCA 82
Decision Date: 26 March 2004

CaseChat Overview and Summary

In the matter of R v Braithwaite, the applicant was sentenced to six years in prison for grievous bodily harm inflicted upon a police officer during the execution of their duty. The applicant's conviction arose from an assault that took place while the officer was performing their duties. Although the applicant was under the influence of amphetamines at the time of the offence, it was not established that a weapon was used in the attack. The applicant had a substantial criminal history, which played a significant role in the sentencing decision.

The legal issues before the court revolved around whether the sentence imposed was excessive, given the circumstances of the offence and the offender. Key considerations included the nature and severity of the crime, the impact on the victim, the circumstances of the offender, and the purpose of sentencing, particularly deterrence. The court had to weigh the need to protect society and deter similar attacks against police officers against the individual circumstances of the applicant.

The court held that the sentence was not excessive. It was determined that the assault on a police officer in the execution of their duty warranted a significant sentence. The court found that the sentence was appropriate for the purpose of deterrence, aiming to discourage similar attacks on police officers. The court considered the applicant's criminal history and the influence of amphetamines but concluded that these factors did not warrant a reduction in the sentence. Therefore, the application for leave to appeal against the sentence was dismissed.

No further orders were made by the court.

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.

CITATION:	R v Braithwaite [2004] QCA 82
PARTIES:	R v BRAITHWAITE, John James (applicant)
FILE NO/S:	CA No 371 of 2003 DC No 2187 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2004
JUDGES:	McMurdo P, Jerrard JA and Philippides J 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 - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMNET - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - CIRCUMSTANCES OF OFFENDER – where applicant sentenced to 6 years’ imprisonment for grievous bodily harm – where assault on police officer in execution of his duty – where applicant not proven to have used a weapon in the attack – where applicant under influence of amphetamine at time of offence - where applicant has lengthy criminal history – whether sentence excessive in circumstances CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMNET - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE – DETERRENCE – where applicant convicted of grievous bodily harm against a police officer in execution of his duty – where sentence imposed appropriate on basis of deterring similar attacks on police officers R v Nagy [2003] QCA 175; CA No 24 of 2003, 2 May 2003, applied
COUNSEL:	The applicant appeared on his own behalf DA Holliday for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent