R v Devlyn - [2014] QCA 96

SUPREME COURT OF QUEENSLAND

CITATION:

R v Devlyn [2014] QCA 96

PARTIES:

R
v
DEVLYN, Paula Maree
(applicant)

FILE NOS:

CA No 270 of 2013
DC No 998 of 2013
DC No 1169 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2014

JUDGES:

Holmes and Morrison JJA and Ann Lyons 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 grievous bodily harm and serious assault against police officers in the execution of their duty – where the applicant was sentenced to four years imprisonment with parole eligibility set after 15 months imprisonment – whether the applicant’s offending was as serious as that in Braithwaite – whether the sentence imposed was excessive

R v Braithwaite[2004] QCA 82, applied
R v Henriott[2004] QCA 346, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered
R v Neal[2012] QCA 12, considered
R v Weare[2002] QCA 183, considered
R v Williams & Attorney General of Queensland[1997] QCA 476, considered

COUNSEL:

The applicant appeared on her own behalf
D Meredith for the respondent

SOLICITORS:

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

HOLMES JA: I agree with the reasons of A Lyons J and the order she proposes.

MORRISON JA: I have had the advantage of reading the reasons of A Lyons J and agree with her Honour and that the application for leave to appeal against sentence should be refused.

ANN LYONS J: The charges

On 24 September 2013 the applicant pleaded guilty to four indictable offences and three summary offences before Chief Judge Wolfe. All of the offences had occurred on 13 October 2012 during an altercation with police officers.

Count 1 charged unlawfully doing grievous bodily harm to Sergeant Benjamin Suckling and Count 2 involved unlawfully assaulting him whilst acting in the execution of his duty. Count 3 was unlawfully assaulting Constable Craig Wilkinson whilst he was acting in the execution of his duty and Count 4 was unlawfully assaulting Sergeant Kristine Mitchell whilst acting in the execution of her duty. The summary offences included public nuisance and obstructing a police officer.

The sentences

In relation to Count 1, the applicant was sentenced to four years imprisonment. In relation to Count 2 she was sentenced to two years imprisonment. On Count 3 she was imprisoned for a period 15 months. On Count 4 she was sentenced to a period of imprisonment of 18 months. In relation to all of the summary offences she was imprisoned for three months. All of the sentences were to be served concurrently. Her parole eligibility date 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 Devlyn

Details

AGLC: R v Devlyn [2014] QCA 96
Case: [2014] QCA 96
Decision Date: 2 May 2014

CaseChat Overview and Summary

The applicant, Devlyn, appealed against the sentence imposed following his conviction for grievous bodily harm and serious assault against police officers executing their duty. The matter was heard in the Court of Appeal, which had to determine whether the sentence of four years imprisonment, with parole eligibility set after 15 months, was appropriate. The court considered whether the sentence was manifestly excessive or inadequate in light of the severity of the offending and relevant precedents.

The central legal issue was whether the sentence was excessive when compared to other cases, particularly the case of Braithwaite. The applicant argued that his offending was not as serious as that in Braithwaite, which had resulted in a lighter sentence. The court had to assess the seriousness of the current case, including the nature of the assault, the harm caused, and the context of the offence. Additionally, the court needed to evaluate if there were any exceptional circumstances that warranted a departure from the usual sentencing principles.

In examining the case, the court found that the applicant’s offending was indeed serious, involving violence against police officers performing their duty. The court compared the facts and circumstances of this case with those of Braithwaite and found that the offences were of comparable gravity. Consequently, the court concluded that the sentence imposed was neither manifestly excessive nor inadequate, and thus, the appeal against the sentence was unsuccessful. The application for a new trial was refused.

Orders

Orders of the court

Application refused.

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 Devlyn [2014] QCA 96
PARTIES:	R v DEVLYN, Paula Maree (applicant)
FILE NOS:	CA No 270 of 2013 DC No 998 of 2013 DC No 1169 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2014
JUDGES:	Holmes and Morrison JJA and Ann Lyons 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 grievous bodily harm and serious assault against police officers in the execution of their duty – where the applicant was sentenced to four years imprisonment with parole eligibility set after 15 months imprisonment – whether the applicant’s offending was as serious as that in Braithwaite – whether the sentence imposed was excessive R v Braithwaite[2004] QCA 82, applied R v Henriott[2004] QCA 346, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v Neal[2012] QCA 12, considered R v Weare[2002] QCA 183, considered R v Williams & Attorney General of Queensland[1997] QCA 476, considered
COUNSEL:	The applicant appeared on her own behalf D Meredith for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent