Legal Research
Cases
R v Brand

R v Brand

Case [2006] QCA 525 8 December 2006

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brand [2006] QCA 525

PARTIES:

R
v
BRAND, Christopher John
(applicant)

FILE NO/S:

CA No 253 of 2006
DC No 118 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

8 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2006

JUDGES:

Williams, Jerrard and Holmes JJA
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 refused

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 – where the applicant pleaded guilty to unlawfully doing grievous bodily harm and was sentenced to three years imprisonment, suspended after nine months, with an operational period of three years – where the complainant was a 72 year old man and the attack lasted for about one and a half minutes – where the ill health of the applicant’s baby and the stress this caused was relied upon as a mitigating factor – whether the sentence was manifestly excessive in all the circumstances

R v Bryan; ex parte A-G (Qld) [2003] QCA 18; (2003) 137 A Crim R 489, considered
R v Tupou; ex parte A-G (Qld) [2005] QCA 179; CA No 88 of 2005, 31 May 2005, followed

COUNSEL:

A J Kimmins, with D James, for the applicant
M J Copley for the respondent

SOLICITORS:

Buckland Criminal Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The applicant seeks leave to appeal against a sentence of three years imprisonment, suspended after nine months, with an operational period of three years, imposed after he pleaded guilty on 16 August 2006 in the Maroochydore District Court to the offence of unlawfully doing grievous bodily harm committed on 9 October 2005.

An agreed statement of facts was presented to the sentencing Judge and that formed the basis of the description of the offence given by the Judge in his remarks on sentence. The complainant was a 72 year old man. On Saturday, 8 October 2005 he heard loud music coming from a nearby house. The noise continued throughout the night and on the following day until early afternoon. It then stopped for a period but again commenced somewhere around 6.30 pm on 9 October. The complainant went to where the music was coming from and on arrival at the house walked towards the front door. It was dark and a dog commenced to bark. The complainant commenced to knock on the side wall and said: “Is anyone home”. The applicant, a male aged 25, then came out of the house and immediately pushed the complainant in the chest; that caused the complainant to fall and then he was kicked by the applicant. The applicant was screaming: “Get off my fucking property – you are trespassing”. A…

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 Brand

Details

AGLC: R v Brand [2006] QCA 525
Case: [2006] QCA 525
Decision Date: 8 December 2006

CaseChat Overview and Summary

The case of R v Brand involved the applicant who had pleaded guilty to an offence of unlawfully doing grievous bodily harm to a 72-year-old man. The attack lasted approximately one and a half minutes, and the applicant was sentenced to three years imprisonment, suspended after nine months, with an operational period of three years. The applicant sought leave to appeal against the sentence on the basis that it was manifestly excessive in all the circumstances, with particular emphasis on the ill health of the applicant’s baby and the resultant stress.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the mitigating factors presented, including the stress caused by the ill health of the applicant’s baby. The court had to consider the principles of sentencing, the gravity of the offence, and the mitigating circumstances to determine if the sentence was disproportionate. The court was also required to assess the balance between the need for punishment, deterrence, and the personal circumstances of the applicant.

In dismissing the application for leave to appeal, the court found that the sentence was not manifestly excessive. The court acknowledged the stress experienced by the applicant due to the ill health of their baby but held that this factor, while relevant, did not sufficiently outweigh the severity of the offence. The court considered the principles of proportionality and the need to maintain public confidence in the criminal justice system. It was determined that the sentence reflected an appropriate response to the gravity of the offence and the need for general deterrence, and thus the sentence was not manifestly excessive. Consequently, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Brand [2006] QCA 525

Most Recent Citation

R v Holland [2008] QCA 200

Cases citing this decision · 14 of 14 shown

R v Noone
[2021] QCA 23 Para 12

…the complainant. It was submitted that similar decisions supported a sentence of between 18 months and three years’ imprisonment. [1] R v Brand [2006] QCA 525. [2] R v Stringer [2014] QCA 342.…
R v Tom
[2018] QCA 218 Para 12

…306, McMurdo P, Muir and White JJA referred with approval to those observations and also to earlier observations which Williams JA made in R v Brand [2006] QCA 525 (at [15], Jerrard and Holmes JJA agreeing), where his Honour observed: The only real conclusion that can be drawn from a consideration of the cases r…
R v Campbell
[2016] QCA 42

…nd 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; there had been a commi…
R v Hogan
[2015] QCA 151 Para 18

…er or not a weapon was used, whether the offence was established by one blow or whether there was a sustained attack on the complainant.” [11][2006] QCA 525, [15].…
R v Stringer
[2014] QCA 342 Para 1

…g decisions: R v O’Grady; ex parte Attorney-General (Qld) (2003) A Crim R 273, R v Craske [2002] QCA 49, R v Leapai [2005] QCA 449, R v Brand [2006] QCA 525, and R v Kinersen-Smith & Connor; ex parte Attorney-General (Qld) [2009] QCA 153.…
R v Coker
[2013] QCA 315

…issner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited R v Baker [2012] QCA 237, cited R v Brand [2006] QCA 525, cited R v Laing [2003] QCA 477, cited R v Neilson [2011] QCA 369, cited R v Wade [2012] 2 Qd R 31; [2011] QCA 289, cited COUNSEL: S G Bain, with A C Freeman, for the appellant/applicant (pro bono)…
R v Clarke
[2012] QCA 318 Para 15

…for offences of grievous bodily harm must have regard to the particular circumstances of that case. The observations of Williams JA in the R v Brand [2006] QCA 525 at [15] are particularly apposite:…
R v Arthy
[2012] QCA 67

…ntences Act 1992 (Qld) R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Brand [2006] QCA 525, cited R v Tupou; ex parte A-G (Qld) [2005] QCA 179, cited COUNSEL: J McInnes for Christopher James Arthy C L Morgan for Scott Edward Arthy D A Holliday for the respondent SOLICITORS: Legal Aid Queensland fo…
R v Norris
[2012] QCA 57

…isonment on the second count, with parole release fixed after serving 18 months – whether sentence manifestly excessive R v Brand [2006] QCA 525, cited R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, discussed R v Kinersen-Smith & Connor; ex parte A-G (Qld) [2009] QCA 153, cited R v Neal [20…
R v Neal
[2012] QCA 12 Para 1

…parte Attorney-General (Qld) [2003] QCA 137; R v Henriott [2004] QCA 346; R v Berryman (2005) 159 A Crim R 65; R v O’Dell [2006] QCA 8; R v Brand [2006] QCA 525; R v Holland [2008] QCA 200; R v Bailey [2009] QCA 251. Before discussing those decisions it is useful to mention some assumptions which underlay the app…
R v HBA
[2010] QCA 306

…78] FCA 16, considered Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Brand [2006] QCA 525, cited R v Bryan; ex-parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, applied R v FJ; ex parte A-G (Qld) [2005] QCA 15, considered R v Goodger [2009] QCA 377, cited R v J [1998] QCA 143, followed…
R v Bailey
[2009] QCA 251 Para 1

…The maximum sentence for the offence of grievous bodily harm is one of 14 years imprisonment. In R v Brand [2006] QCA 525 the Court of Appeal, in reviewing a large number of sentences imposed for grievous bodily harm, observed at [15]:…
R v Kinersen-Smith & Connor; ex parte
[2009] QCA 153 Para 1

…. Indeed, this Court has on other occasions emphasised the breadth of the sentencing range for offences of grievous bodily harm.[7] [7] R v Brand [2006] QCA 525 at [15]; R v Swayn; ex parte A-G (Qld) [2009] QCA 81 at [14].…
R v Holland
[2008] QCA 200 Para 1

…ly excessive. The application for leave to appeal against sentence should be refused. [2]See R v Dillon; ex parte A-G (Qld) [2006] QCA 521; R v Brand [2006] QCA 525.…

View all 14 citing cases →

Cases cited in this decision · 2 of 2 shown

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

…ent sentences imposed by this Court for gratuitous violence resulting in grievous bodily harm. Relevantly this Court in R v Tupou; ex parte A-G (Qld) [2005] QCA 179 varied a sentence of three years imprisonment suspended after nine months by increasing the time to be served before suspension to 15 months. The off…
R v Bryan; ex parte Attorney-General
[2003] QCA 18

…upon as a mitigating factor – whether the sentence was manifestly excessive in all the circumstances R v Bryan; ex parte A-G (Qld) [2003] QCA 18; (2003) 137 A Crim R 489, considered R v Tupou; ex parte A-G (Qld) [2005] QCA 179; CA No 88 of 2005, 31 May 2005, followed COUNSEL: A J Kimmins, with D James, for the…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Brand [2006] QCA 525
PARTIES:	R v BRAND, Christopher John (applicant)
FILE NO/S:	CA No 253 of 2006 DC No 118 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	8 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2006
JUDGES:	Williams, Jerrard and Holmes JJA 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 refused
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 – where the applicant pleaded guilty to unlawfully doing grievous bodily harm and was sentenced to three years imprisonment, suspended after nine months, with an operational period of three years – where the complainant was a 72 year old man and the attack lasted for about one and a half minutes – where the ill health of the applicant’s baby and the stress this caused was relied upon as a mitigating factor – whether the sentence was manifestly excessive in all the circumstances R v Bryan; ex parte A-G (Qld) [2003] QCA 18; (2003) 137 A Crim R 489, considered R v Tupou; ex parte A-G (Qld) [2005] QCA 179; CA No 88 of 2005, 31 May 2005, followed
COUNSEL:	A J Kimmins, with D James, for the applicant M J Copley for the respondent
SOLICITORS:	Buckland Criminal Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent