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R v Craske

R v Craske

Case [2002] QCA 49 1 March 2002

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Craske [2002] QCA 49

PARTIES:

R
v
CRASKE, Luke Anthony
(applicant)

FILE NO/S:

CA No 11 of 2002
DC No 424 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave to appeal against Sentence

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

1 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2002

JUDGES:

McMurdo P, Thomas and Williams 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 – 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 applicant sentenced to 18 months imprisonment suspended after serving 4 months with an operational period of 2 years, for an offence of occasioning grievous bodily harm – whether the learned trial judge erred in considering himself constrained by authority to require the applicant to actually serve some time in custody.

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PARTICULAR CASES – where the applicant had earlier been severely provoked by the complainant and kicked the complainant in the head after the complainant had fallen on the ground - R v Cuff distinguished. Application for leave to appeal against sentence refused.

R v Bennet & Anor [1999] QCA 46; CA No 443 & 449 of 1998, 26 February 1999, considered
R v Camm [1999] QCA 101; CA No 431 of 1998, 1 April 1999, considered
R v Cuff; ex-parte Attorney-General of Queensland [2001] QCA 351; CA No 151 of 2001, 22 August 2001, distinguished
R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered
R v Sharpe [1995] QCA 37; CA No 476 of 1994, 21 February 1995, considered
R v Walsh & Sayer & Thompson; ex-parte Attorney-General of Queensland [1998] QCA 217; CA No’s 158,159 & 160 of 1998, 28 July 1998, considered

COUNSEL:

A W Moynihan for the applicant
C Heaton for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MCMURDO P: I agree with the reasons for judgment of Williams JA and with the order proposed.

THOMAS JA: I agree.

WILLIAMS JA: This is an application for leave to appeal against a sentence of 18 months imprisonment, suspended after serving 4 months, with an operational period of 2 years, for an offence of occasioning grievous bodily harm. Counsel for the applicant did not challenge the imposition of a head sentence of 18 months, but submitted that in all the circumstances of this case the sentence, taken as a whole, was manifestly excessive because the mitigating factors warranted suspending the whole of the sentence of imprisonment. By the time the matter came…

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 Craske

Details

AGLC: R v Craske [2002] QCA 49
Case: [2002] QCA 49
Decision Date: 1 March 2002

CaseChat Overview and Summary

In the matter of the Criminal Appeal Tribunal, the applicant, Craske, sought leave to appeal against his sentence. The conviction was for occasioning grievous bodily harm, for which he was sentenced to 18 months imprisonment, suspended after serving four months, with an operational period of two years. The primary issue before the court was whether the trial judge was correct in his view that he was bound by precedent to require the applicant to serve some time in custody. The court considered the facts of the case, which included that the applicant had been severely provoked by the complainant and subsequently kicked the complainant in the head after the complainant had fallen to the ground. In distinguishing R v Cuff, the court found that the trial judge did not err in his consideration of the sentence. The court held that the sentence was appropriate given the circumstances and that there was no basis to grant leave to appeal.

The court examined the principles of sentencing, particularly in relation to offences against the person. It noted that while the provocation and the nature of the act were significant, they were not sufficient to entirely mitigate the severity of the offence. The court also considered the necessity of deterrence and the protection of the community, which weighed in favour of some form of custodial sentence. The applicant's argument that the trial judge was constrained by authority to impose a custodial sentence was rejected, as the court found that the judge had adequately considered the relevant factors and exercised his discretion appropriately. 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 Craske [2002] QCA 49

Most Recent Citation

R v Sinnamon;ex Parte A-G (Qld) [2002] QCA 240

Cases citing this decision · 11 of 11 shown

R v Stringer
[2014] QCA 342 Para 1

…applicant’s counsel referred to comparable sentencing 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 Fisher
[2008] QCA 307 Para 1

…R v Craske [2002] QCA 49, referred to by the applicant, was a quite different type of case. In Craske the complainant was the instigator of the altercation and the offender kicked him once only. The applicant had no criminal history, an excellent work history, and had undertaken counselling including anger manag…
R v Lam
[2006] QCA 560 Para 1

…he applicant R v O’Grady; ex parte A-G (Qld) (2003) 138 A Crim R 273, R v Walsh, Sayer & Thompson; ex parte A-G (Qld) [1998] QCA 217 and R v Craske [2002] QCA 49 concerned offenders who, unlike the applicant, had no prior criminal history and more promising prospects of rehabilitation.…
R v Sargeant, Price and Freier
[2005] QCA 409 Para 1

…peal) de Jersey CJ referred, at 275, to three “single blow” cases where grievous bodily harm resulted, R v Elliott [2001] QCA 507, R v Craske [2002] QCA 49, and R v Dodd [1998] QCA 232. In those the sentences imposed were respectively two and a half years imprisonment, 18 months imprisonment, and 18 months impri…
R v Tupou; Ex Parte A-G (Qld)
[2005] QCA 179

…te A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, considered R v Craske [2002] QCA 49, CA No 11 of 2002, 1 March 2002, distinguished R v Hoogsaad [2001] QCA 27, CA No 277 of 2000, 9 February 2001, distinguished R v Johnston [2004] QCA 12, CA No 263 of 2003, 6 February 2004, quoted R v Lambert; ex p…
R v English
[2004] QCA 378 Para 1

…The prosecution drew a number of comparative sentences to the learned sentencing judge’s attention. One was a matter of Craske [2002] QCA 49, one a matter of Dodd [1998] QCA 323, one the matter of Barry [2004] QCA 105, and a matter of Amituanai (1995) 78 A Crim R 588. In that latter matter a complainant had been…
R v Barry
[2004] QCA 105

…les , r 69 R v Bennett and Bennett [1998] QCA 393; CA No 443 and CA No 229 of 1998, 26 February 1999, considered R v Craske [2002] QCA 49; CA No 11 of 2002, 1 March 2002, considered R v Cuff, ex parte A-G [2001] QCA 351; [2001] ACL Rep 130 QLD 229, considered R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 Septem…
R v Van Ling
[2003] QCA 382 Para 18

…n with periods of suspension or parole recommendations, are imposed. They suggest the sentence of four years imprisonment was high.[3] [3] R v Craske [2002] QCA 49; CA No 11 of 2002, 1 March 2002; R v Harvey [2003] QCA 286; CA No 112 of 2003, 10 July 2003; R v Rangeley [2003] QCA 116; CA No 22 of 2003, 18 March…
R v Nagy
[2003] QCA 175 Para 1

…plicant relied on R v O’Grady; ex parte Attorney-General [2003] QCA 137, R v Yanner & Anor; ex parte Attorney-General [1999] QCA 515 and R v Craske [2002] QCA 49 in support of his contention that a sentence in the range 18 months to two years imprisonment was appropriate for this offence. The offence was a parti…
R v O'Grady; ex parte Attorney-General
[2003] QCA 137 Para 1

…Counsel for the appellant referred us to Elliott [2001] QCA 507, Craske [2002] QCA 49 and Dodd CA No 241 of 1998. Elliott pleaded guilty to doing grievous bodily harm and to assault occasioning bodily harm. For the former offence he was sentenced to two-and-a-half years imprisonment, with eligibility for parole…
R v Sinnamon;ex Parte A-G (Qld)
[2002] QCA 240

…[2000] QCA 134 comes closest though there were extenuating circumstances in that case making it less serious than this one. Cases such as R v. Craske [2002] QCA 49 and R v. Dodd, CA No 241 of 1998, in my opinion show that this sentence was manifestly inadequate to reflect the seriousness of the conduct in the li…

View all 11 citing cases →

Cases cited in this decision · 6 of 6 shown

R v GB & LB
[1999] QCA 46

…allen on the ground - R v Cuff distinguished. Application for leave to appeal against sentence refused. R v Bennet & Anor [1999] QCA 46; CA No 443 & 449 of 1998, 26 February 1999, considered R v Camm [1999] QCA 101; CA No 431 of 1998, 1 April 1999, considered R v Cuff; ex-parte Attorney-General of Queensland [20…
R v Cuff; ex parte A-G (Qld)
[2001] QCA 351 Para 1

…The learned sentencing judge was not referred to the decision of this Court in Cuff , [2001] QCA 351. That was an Attorney’s appeal and the court did not interfere with a sentence of 12 months imprisonment to be served as an intensive correction order coupled with an order that compensation in the sum of $10,000…
R v Camm
[1999] QCA 101

…against sentence refused. R v Bennet & Anor [1999] QCA 46; CA No 443 & 449 of 1998, 26 February 1999, considered R v Camm [1999] QCA 101; CA No 431 of 1998, 1 April 1999, considered R v Cuff; ex-parte Attorney-General of Queensland [2001] QCA 351; CA No 151 of 2001, 22 August 2001, distinguished R v Dodd [1998] Q…
R v Dodd
[1998] QCA 323

…v Cuff; ex-parte Attorney-General of Queensland [2001] QCA 351; CA No 151 of 2001, 22 August 2001, distinguished R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered R v Sharpe [1995] QCA 37; CA No 476 of 1994, 21 February 1995, considered R v Walsh & Sayer & Thompson ; ex-parte Attorney-Gene…
R v Walsh, Sayer and Thompson; ex parte
[1998] QCA 217

…7; CA No 476 of 1994, 21 February 1995, considered R v Walsh & Sayer & Thompson ; ex-parte Attorney-General of Queensland [1998] QCA 217; CA No’s 158,159 & 160 of 1998, 28 July 1998, considered COUNSEL: A W Moynihan for the applicant C Heaton for the respondent SOLICITORS: Legal Aid Queensland for the applicant D…
CA No 241 of 1998, 17 September 1998, considered R v Sharpe
[1995] QCA 37

…2001, 22 August 2001, distinguished R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered R v Sharpe [1995] QCA 37; CA No 476 of 1994, 21 February 1995, considered R v Walsh & Sayer & Thompson ; ex-parte Attorney-General of Queensland [1998] QCA 217; CA No’s 158,159 & 160 of 1998, 28 July 19…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Craske [2002] QCA 49
PARTIES:	R v CRASKE, Luke Anthony (applicant)
FILE NO/S:	CA No 11 of 2002 DC No 424 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave to appeal against Sentence
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	1 March 2002
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2002
JUDGES:	McMurdo P, Thomas and Williams 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 – 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 applicant sentenced to 18 months imprisonment suspended after serving 4 months with an operational period of 2 years, for an offence of occasioning grievous bodily harm – whether the learned trial judge erred in considering himself constrained by authority to require the applicant to actually serve some time in custody. CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PARTICULAR CASES – where the applicant had earlier been severely provoked by the complainant and kicked the complainant in the head after the complainant had fallen on the ground - R v Cuff distinguished. Application for leave to appeal against sentence refused. R v Bennet & Anor [1999] QCA 46; CA No 443 & 449 of 1998, 26 February 1999, considered R v Camm [1999] QCA 101; CA No 431 of 1998, 1 April 1999, considered R v Cuff; ex-parte Attorney-General of Queensland [2001] QCA 351; CA No 151 of 2001, 22 August 2001, distinguished R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered R v Sharpe [1995] QCA 37; CA No 476 of 1994, 21 February 1995, considered R v Walsh & Sayer & Thompson; ex-parte Attorney-General of Queensland [1998] QCA 217; CA No’s 158,159 & 160 of 1998, 28 July 1998, considered
COUNSEL:	A W Moynihan for the applicant C Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent