R v Davies - [2013] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

R v Davies [2013] QCA 73

PARTIES:

R
v
DAVIES, Benjamin John
(applicant)

FILE NO/S:

CA No 292 of 2012
DC No 187 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

5 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2013

JUDGES:

Holmes and Fraser JJA and Margaret Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of unlawfully doing grievous bodily harm – where the applicant was sentenced to two years and three months imprisonment with parole release fixed at approximately the midpoint of the term of imprisonment – where the applicant had a relevant criminal history – where the applicant contended that he should have been sentenced only for the excessive component of force used in the assault – whether the sentence was manifestly excessive

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, cited
R v Anderson [2012] QCA 264, considered
R v Harvey[2003] QCA 286, considered
R v Lambert; ex parte A-G (2000) A Crim R 564; [2000] QCA 141, cited
R v Swayn; ex parte A-G(Qld)[2009] QCA 81, considered
R v Taputoro [2007] QCA 29, considered

COUNSEL:

J R Hunter SC for the applicant
B Power for the respondent

SOLICITORS:

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

HOLMES JA: I agree with the reasons of Fraser JA and the order he proposes.

FRASER JA: After a trial occupying two days in the District Court the applicant was convicted on 10 October 2012 of unlawfully doing grievous bodily harm. On the same day he was sentenced to imprisonment for two years and three months, with an order that he be released on parole on 30 November 2013 (approximately at the midpoint of the term of imprisonment). The applicant has applied for leave to appeal against sentence on the ground that it was manifestly excessive.

When the applicant committed the offence he was 24 years old. Early in the morning of 22 September 2011, he had finished work as a chef at a hotel in Pittsworth and was drinking at the hotel bar. A man was misbehaving and annoying customers. The applicant felled that man with a single punch. (The applicant was not charged with any offence arising out of that punch.) The applicant’s father walked a short distance and looked at the man then lying on the floor. The complainant approached the applicant’s father and pushed him away for a short distance, holding him by his arms, whereupon the applicant punched the complainant heavily in the side of his head. The complainant could not have known he was about to be punched.…

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 Davies

Details

AGLC: R v Davies [2013] QCA 73
Case: [2013] QCA 73
Decision Date: 5 April 2013

CaseChat Overview and Summary

The matter before the court was an appeal by the applicant, Davies, against his sentence. Davies was convicted of unlawfully causing grievous bodily harm and was sentenced to two years and three months imprisonment, with parole release fixed at around the midpoint of his term. Davies had a criminal history relevant to this offence, which the sentencing judge considered when determining his sentence. The appeal was based on the contention that the sentence was manifestly excessive, given that Davies argued he should have only been sentenced for the excessive force component of the assault.

The central legal issue for the court was whether the sentence imposed on Davies was manifestly excessive. The court had to consider the nature of the offence, the characteristics of the offender, and the principles of sentencing. Specifically, the court needed to assess whether the sentence deviated significantly from what would be considered appropriate for the offence and the offender’s circumstances. The court was also required to determine if the parole release date was appropriately set.

The court found that the sentence was not manifestly excessive. It concluded that the sentencing judge had appropriately balanced the various factors, including Davies’s criminal history and the severity of the offence. The court determined that the sentence reflected the seriousness of the assault and was consistent with sentences imposed in similar cases. Additionally, the court found that the parole release date was appropriately set, taking into account the non-custodial aspects of the sentence and the need for rehabilitation. The appeal was therefore dismissed, and the application for a new trial was refused.

Orders

Orders of the court

Application 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.

CITATION:	R v Davies [2013] QCA 73
PARTIES:	R v DAVIES, Benjamin John (applicant)
FILE NO/S:	CA No 292 of 2012 DC No 187 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	5 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	26 March 2013
JUDGES:	Holmes and Fraser JJA and Margaret Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of unlawfully doing grievous bodily harm – where the applicant was sentenced to two years and three months imprisonment with parole release fixed at approximately the midpoint of the term of imprisonment – where the applicant had a relevant criminal history – where the applicant contended that he should have been sentenced only for the excessive component of force used in the assault – whether the sentence was manifestly excessive Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, cited R v Anderson [2012] QCA 264, considered R v Harvey[2003] QCA 286, considered R v Lambert; ex parte A-G (2000) A Crim R 564; [2000] QCA 141, cited R v Swayn; ex parte A-G(Qld)[2009] QCA 81, considered R v Taputoro [2007] QCA 29, considered
COUNSEL:	J R Hunter SC for the applicant B Power for the respondent
SOLICITORS:	Bosscher Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent