R v Collins - [2001] QCA 547

SUPREME COURT OF QUEENSLAND

CITATION: R v Collins [2001] QCA 547

PARTIES: R
v
COLLINS, Kirren John
(appellant)

FILE NO/S: CA No 192 of 2001
CA No 254 of 2001
DC No 1065 of 2001

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 30 November 2001

DELIVERED AT: Brisbane

HEARING DATE: 27 November 2001

JUDGES: Davies and Williams JJA, Mullins J
Judgment of the Court

ORDERS:

Appeal against conviction is dismissed.

Application for leave to appeal against the sentence is granted and the appeal is allowed.

The sentence of 18 months’ imprisonment is set aside and, in lieu, the appellant is sentenced to imprisonment for a period of 5 months 10 days and it is ordered that he be released under the supervision of an authorised Corrective Services Commission officer for a period of 18 months with a special condition that he undertake such drug and alcohol rehabilitation courses as may be directed by the authorised Commission officer. The appellant must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 and report within 2 business days of his release from prison to an authorised Commission officer.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – MISDIRECTION AND NON-DIRECTION – whether jury should have been directed in respect of aiding in self-defence – whether there was a misdirection to the jury as to the meaning of grievous bodily harm

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – whether sentence of 18 months manifestly excessive given circumstances of case

Criminal Code, s 1, s 273

R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, followed
R v Pangilinan [2001] QCA 81; [2001] 1 Qd R 56, followed
R v Tranby [1992] 1 Qd R 432, considered

COUNSEL: S J Hamlyn-Harris for the appellant
M R Byrne for the respondent

SOLICITORS: Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: On 20 June 2001 the appellant was convicted after trial of one count of causing grievous bodily harm. He was remanded in custody and sentenced on 6 September 2001 to a term of imprisonment of 18 months. A declaration was made in respect of the 78 days spent in pre-sentence custody. He appeals against conviction and sentence.

Facts

The complainant and his wife operated a store at Beachmere. The complainant was annoyed about conduct complained of by his wife that some youths had made rude gestures at her. After enquiries by the complainant about who was involved, one Richard Benson went to the store to speak to the complainant about the matter. They went to the rear area of the store where there was a metal gate. The complainant’s wife was also present.

While the complainant was…

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 Collins

Details

AGLC: R v Collins [2001] QCA 547
Case: [2001] QCA 547
Decision Date: 30 November 2001

CaseChat Overview and Summary

The appellant, Collins, was convicted of aiding and abetting in the commission of a crime involving grievous bodily harm, and subsequently sentenced to 18 months imprisonment. The appeal against his conviction and sentence was heard by the court. The appeal raised two primary issues: the first concerned whether the jury should have been directed regarding aiding in self-defence, and the second was whether there was a misdirection to the jury regarding the meaning of grievous bodily harm. Additionally, the appeal questioned whether the sentence was manifestly excessive given the circumstances of the case.

The court found that there was no misdirection or non-direction to the jury concerning the principles of aiding in self-defence or the meaning of grievous bodily harm. The jury was properly instructed on these matters and the verdict was upheld. However, the court identified that the sentence imposed was manifestly excessive. The court noted that the appellant had a history of drug and alcohol abuse, and the sentence did not adequately address these underlying issues. The court acknowledged the importance of rehabilitating the offender and preventing future criminality, which was not achieved by the original sentence.

Consequently, the appeal against the conviction was dismissed, while the application for leave to appeal against the sentence was granted and the appeal was allowed. The original sentence of 18 months’ imprisonment was set aside. In its place, the appellant was sentenced to imprisonment for a period of 5 months and 10 days, with release under the supervision of an authorised Corrective Services Commission officer for a period of 18 months. The special conditions included mandatory participation in drug and alcohol rehabilitation courses as directed by the authorised Commission officer, and compliance with reporting requirements under the Penalties and Sentences Act 1992.

Orders

Orders of the court

1. Appeal against conviction is dismissed.

2. Application for leave to appeal against the sentence is granted and the appeal is allowed.

3. The sentence of 18 months’ imprisonment is set aside and, in lieu, the appellant is sentenced to imprisonment for a period of 5 months 10 days and it is ordered that he be released under the supervision of an authorised Corrective Services Commission officer for a period of 18 months with a special condition that he undertake such drug and alcohol rehabilitation courses as may be directed by the authorised Commission officer. The appellant must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 and report within 2 business days of his release from prison to an authorised Commission officer.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Collins [2001] QCA 547
PARTIES:	R v COLLINS, Kirren John (appellant)
FILE NO/S:	CA No 192 of 2001 CA No 254 of 2001 DC No 1065 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	30 November 2001
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2001
JUDGES:	Davies and Williams JJA, Mullins J Judgment of the Court
ORDERS:	Appeal against conviction is dismissed. Application for leave to appeal against the sentence is granted and the appeal is allowed. The sentence of 18 months’ imprisonment is set aside and, in lieu, the appellant is sentenced to imprisonment for a period of 5 months 10 days and it is ordered that he be released under the supervision of an authorised Corrective Services Commission officer for a period of 18 months with a special condition that he undertake such drug and alcohol rehabilitation courses as may be directed by the authorised Commission officer. The appellant must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 and report within 2 business days of his release from prison to an authorised Commission officer.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – MISDIRECTION AND NON-DIRECTION – whether jury should have been directed in respect of aiding in self-defence – whether there was a misdirection to the jury as to the meaning of grievous bodily harm CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – whether sentence of 18 months manifestly excessive given circumstances of case Criminal Code, s 1, s 273 R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, followed R v Pangilinan [2001] QCA 81; [2001] 1 Qd R 56, followed R v Tranby [1992] 1 Qd R 432, considered
COUNSEL:	S J Hamlyn-Harris for the appellant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent