R v Bryan; ex parte Attorney-General

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bryan; ex parte A-G (Qld) [2003] QCA 18

PARTIES:

R
v
BRYAN, David John
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 410 of 2002
DC No 3152 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2003

JUDGES:

de Jersey CJ, Williams JA and Cullinane J
Separate reasons for judgment of each member of the Court; each concurring as to the orders made

ORDERS:

1.  Appeal allowed
2.  Sentence imposed set aside and in lieu thereof order that for the offence of grievous bodily harm the respondent be imprisoned for six years. Further declare that the respondent was in pre-sentence custody for a period of 291 days from 8 February 2002 to 26 November 2002 solely in relation to that offence and that should be taken into account as time served pursuant to the sentence

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM – SENTENCING – where respondent convicted of grievous bodily harm – where lack of remorse shown – where plea of guilty

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRENCE – where respondent produced knife during fight with complainant – where offence committed in a public place – where unprovoked attack

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where sentenced to four years imprisonment suspended after 12 months with operational period of five years – whether sentence imposed was manifestly inadequate

R v Hoogsaad [2001] QCA 27; CA No 277 of 2000, 9 February 2001, considered
R v Swayn [1998] QCA 171; CA No 59 of 1998, 8 May 1998, considered
R v King & Morgan; ex parte A-G (Qld) [2002] QCA 376; CA Nos 127 and 128 of 2002, 23 September 2002, considered

COUNSEL:

C W Heaton for the appellant
A J Kimmins for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Bell Miller for the respondent

[1]      de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams JA. I agree with the order proposed by His Honour, and with his reasons. I wish to add some observations on the applicability of part 9A of the Penalties and Sentences Act 1992.

[2]      The learned sentencing Judge was not asked to declare the respondent to have been convicted of a serious violent offence.  The schedule to the Penalties and Sentences Act includes doing grievous bodily harm as one of the offences to which part 9A relates.…