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R v Dancey

R v Dancey

Case [2013] QCA 135 31 May 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Dancey [2013] QCA 135

PARTIES:

R
v
DANCEY, Bane Nelson
(applicant)

FILE NO/S:

CA No 339 of 2012
DC No 356 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

31 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2013

JUDGES:

Muir JA and Philippides and Ann Lyons JJ
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 – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty in the District Court to one count of doing grievous bodily harm – where he was sentenced to five years imprisonment to be served cumulatively on a current sentence with a parole eligibility date fixed after 16 months – where the applicant engaged in an unprovoked and deliberate attack in a private home – where the attack was not premeditated – where the applicant was 34 at the time of the offending and had a criminal history that included previous violent offences – where the applicant was assessed as a high risk of reoffending – where the applicant fled after the attack and did not show remorse – where there were strong factors of public and personal deterrence – where the applicant contended that the sentence imposed should have had greater moderation as it was being served cumulatively on an existing sentence – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 160C(5)

R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited
R v Bryan; ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered
R vJohnston[2004] QCA 12, considered
R v King & Morgan; ex parte Attorney-General (Qld) (2002) 134 A Crim R 215; [2002] QCA 376, cited
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
R v Thomason;ex parte A-G (Qld) [2011] QCA 9, considered

COUNSEL:

The applicant appeared on his own behalf
T A Fuller SC for the respondent

SOLICITORS:

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

MUIR JA: I agree that the application should be refused for the reasons given by Ann Lyons J.

PHILIPPIDES J: I agree with the judgment of Ann Lyons J and with the order proposed.

ANN LYONS J: The applicant seeks leave to appeal a sentence which was imposed by the District Court in Ipswich on 19 November 2012. The applicant was charged with one count of unlawfully doing grievous bodily harm on 16 November 2011.

The sentence imposed was five years imprisonment, which was to be cumulative on a current sentence which had a full time release date of 25 April 2013. The applicant…

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 Dancey

Details

AGLC: R v Dancey [2013] QCA 135
Case: [2013] QCA 135
Decision Date: 31 May 2013

CaseChat Overview and Summary

The applicant in this case pleaded guilty to one count of doing grievous bodily harm in the District Court. He was sentenced to five years imprisonment, to be served cumulatively with an existing sentence, with a parole eligibility date set after 16 months. The attack was unprovoked and deliberate, occurring in a private home, but it was not premeditated. The applicant, who was 34 years old at the time of the offence, had a criminal history that included previous violent offences. He was assessed as a high risk of reoffending and did not show remorse. The court was required to consider whether the sentence imposed was manifestly excessive.

The legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate, thereby warranting interference by the appeals court. The applicant argued that the sentence should have had greater moderation as it was being served cumulatively on an existing sentence. The court considered the nature and circumstances of the offence, the applicant's criminal history, and the principles of deterrence and rehabilitation in determining the appropriate sentence.

The court found that the sentence was not manifestly excessive. It noted the unprovoked and deliberate nature of the attack, the applicant's criminal history, and the high risk of reoffending. The court also considered the strong factors of public and personal deterrence. The court concluded that the sentence imposed was appropriate and did not warrant interference by the appeals court.

No further orders were made by the court, and 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 Dancey [2013] QCA 135

Most Recent Citation

R v Presgrave [2014] QCA 105

Cases citing this decision · 5 of 5 shown

R v Jones
[2023] QCA 212 Para 13

…Counsel referred to a number of prior cases including R v Dancey [2013] QCA 135, R v Presgrave [2014] QCA 105, R v Browne [2016] QCA 111, R v Bussey [2003] QCA 197 and R v Barker [2013] QCA 340. It was submitted that those cases support the contention that the aggregate sentence imposed in the present case is man…
R v Hawks
[2019] QCA 181 Para 22

…e date on 25 April 2013. Parole eligibility was set for 25 August 2014, after serving 16 months of the cumulative sentence. [5][2003] QCA 367. [6][2013] QCA 135.…
R v Edwards
[2018] QCA 304 Para 22

…manifestly excessive. [34] R v Sargent [2016] QCA 32; R v Price [2006] QCA 180. [35] R v Johnson [2012] QCA 141; R v Coker [2013] QCA 315; R v Dancey [2013] QCA 135.…
R v Samson
[2014] QCA 166 Para 1

…for this submission, R v Dancey [10] and R v Johnson [11] were each an instance of grievous bodily harm inflicted by a single stab wound only. [10][2013] QCA 135. [11][2012] QCA 141.…
R v Presgrave
[2014] QCA 105 Para 1

…inion, relevant. The sentence imposed by the sentencing Judge was broadly consistent with the sentences imposed in those cases. [1][2012] QCA 237. [2][2013] QCA 135.…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Thomason; ex parte A-G (Qld)
[2011] QCA 9 Para 1

…sentence of four and a half years had been increased to six years with a serious violent offence declaration. [1][2003] QCA 18. [2][2004] QCA 12. [3][2011] QCA 9.…
R v Honeysett; ex parte
[2010] QCA 212

…80, R v Nguyen [2006] QCA 542 and R v Dietz [2009] QCA 392. The learned Judge also had regard to R v Honeysett; ex parte Attorney-General [2010] QCA 212 and R v Amituanai (1995) 78 A Crim R 588 (as to the significance of the extent of residual disability).”…
R v Dietz
[2009] QCA 392

…ry significant example of [gratuitous] street violence”. He referred to R v Price [2006] QCA 180, R v Nguyen [2006] QCA 542 and R v Dietz [2009] QCA 392. The learned Judge also had regard to R v Honeysett; ex parte Attorney-General [2010] QCA 212 and R v Amituanai (1995) 78 A Crim R 588 (as to the significance of…
R v Assurson
[2007] QCA 273

…e imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 160C(5) R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited R v Bryan; ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered R v Johnston [2004] QCA 12, considered R v King & Morgan; ex parte Attorney-…
R v Nguyen
[2006] QCA 542

…knowledging that it was “a very significant example of [gratuitous] street violence”. He referred to R v Price [2006] QCA 180, R v Nguyen [2006] QCA 542 and R v Dietz [2009] QCA 392. The learned Judge also had regard to R v Honeysett; ex parte Attorney-General [2010] QCA 212 and R v Amituanai (1995) 78 A Crim R 5…
R v McDougall and Collas
[2006] QCA 365

…ex parte Attorney-General (Qld) (2002) 134 A Crim R 215; [2002] QCA 376, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Thomason; ex parte A-G (Qld) [2011] QCA 9, considered COUNSEL: The applicant appeared on his own behalf T A Fuller SC for the respondent SOLICITORS: The applicant app…
R v Price
[2006] QCA 180

…f rehabilitation”, while acknowledging that it was “a very significant example of [gratuitous] street violence”. He referred to R v Price [2006] QCA 180, R v Nguyen [2006] QCA 542 and R v Dietz [2009] QCA 392. The learned Judge also had regard to R v Honeysett; ex parte Attorney-General [2010] QCA 212 and R v Ami…
R v Johnston
[2004] QCA 12 Para 1

…n Thomason where a sentence of four and a half years had been increased to six years with a serious violent offence declaration. [1][2003] QCA 18. [2][2004] QCA 12. [3][2011] QCA 9.…
R v Wiggins
[2003] QCA 367

…a serious violent offence declaration, and relied on R v Bryan; ex parte Attorney-General [2003] QCA 18 ((2003) 137 A Crim R 489), and R v Wiggins [2003] QCA 367 and R v Johnstone [2004] QCA 12, pp 4-5 in which Bryan was later applied. Counsel for the respondent did not contend for a particular sentence, but emp…
R v Bryan; ex parte Attorney-General
[2003] QCA 18 Para 1

…Appeal decision in Thomason where a sentence of four and a half years had been increased to six years with a serious violent offence declaration. [1][2003] QCA 18. [2][2004] QCA 12. [3][2011] QCA 9.…
R v King & Morgan; ex parte
[2002] QCA 376 Para 1

…at could be considered as the head sentence.”[11] Given that it was an Attorney General’s appeal, a sentence of six years was imposed. [9][2002] QCA 376. [10][2003] QCA 18, at [34]. [11]Ibid, at [35].…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
160C(5) 2 mentions (from Para 1)

CITATION:	R v Dancey [2013] QCA 135
PARTIES:	R v DANCEY, Bane Nelson (applicant)
FILE NO/S:	CA No 339 of 2012 DC No 356 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	31 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	1 May 2013
JUDGES:	Muir JA and Philippides and Ann Lyons JJ 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 – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty in the District Court to one count of doing grievous bodily harm – where he was sentenced to five years imprisonment to be served cumulatively on a current sentence with a parole eligibility date fixed after 16 months – where the applicant engaged in an unprovoked and deliberate attack in a private home – where the attack was not premeditated – where the applicant was 34 at the time of the offending and had a criminal history that included previous violent offences – where the applicant was assessed as a high risk of reoffending – where the applicant fled after the attack and did not show remorse – where there were strong factors of public and personal deterrence – where the applicant contended that the sentence imposed should have had greater moderation as it was being served cumulatively on an existing sentence – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 160C(5) R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited R v Bryan; ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered R vJohnston[2004] QCA 12, considered R v King & Morgan; ex parte Attorney-General (Qld) (2002) 134 A Crim R 215; [2002] QCA 376, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Thomason;ex parte A-G (Qld) [2011] QCA 9, considered
COUNSEL:	The applicant appeared on his own behalf T A Fuller SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent