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R v Dietz

R v Dietz

Case [2009] QCA 392 18 December 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Dietz [2009] QCA 392

PARTIES:

R
v
DIETZ, Benjamin James
(applicant)

FILE NO/S:

CA No 234 of 2009
DC No 123 of 2009
DC No 124 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Hervey Bay

DELIVERED ON:

18 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2009

JUDGES:

McMurdo P, Muir JA and Daubney J
Separate reasons for judgment of each member of the Court, Muir JA and Daubney J concurring as to the order made, McMurdo P dissenting

ORDER:

Application for leave to appeal is dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant was convicted after a trial of one count of doing grievous bodily harm and pleaded guilty to one count of assault and doing bodily harm – the applicant punched the complainant who then hit his head on the bitumen – the complainant suffered dreadful injuries and has ongoing physical and psychological difficulties – the applicant comes from a supportive family, has no prior criminal history and high rehabilitative prospects – the applicant was sentenced for the offence of grievous bodily harm to six years imprisonment with parole eligibility after serving half that period – whether the judge gave insufficient weight to the applicant's age, prior good history and rehabilitative prospects – whether the sentence was manifestly excessive

R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, considered
R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered
R v Dillon; ex parte A-G (Qld)[2006] QCA 521, cited
R v Fisher (2008) 189 A Crim R 16; [2008] QCA 307, considered
R v Horne [2005] QCA 218, cited
R v Kinersen-Smith & Connor; ex parte A-G (Qld)[2009] QCA 153, cited
R v Madden [2005] QCA 439, considered
R v Mladenovic; ex parte A-G (Qld)[2006] QCA 176, cited
R v Tupou; ex parte A-G (Qld)[2005] QCA 179, considered

COUNSEL:

M A Green for the applicant
M B Lehane for the respondent

SOLICITORS:

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

McMURDO P: The applicant, Benjamin James Dietz, was convicted after a four day trial of doing grievous bodily harm on 1 December 2007 at Hervey Bay. He pleaded guilty to a related offence of assault occasioning bodily harm, committed earlier on the evening of 1 December 2007 at Hervey Bay. Dietz was sentenced for the offence of grievous bodily harm to six years imprisonment with parole eligibility on 2 September 2012, that is, after serving half that period; and for the offence of assault occasioning bodily harm to a concurrent 12 month term of imprisonment. He applies for leave to appeal against his sentence only in respect of the grievous bodily harm offence, claiming that it…

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 Dietz

Details

AGLC: R v Dietz [2009] QCA 392
Case: [2009] QCA 392
Decision Date: 18 December 2009

CaseChat Overview and Summary

The applicant in this case was convicted following a trial for one count of causing grievous bodily harm and pleaded guilty to one count of assault and causing bodily harm. The applicant punched the complainant, causing him to hit his head on the bitumen and suffer severe injuries, with ongoing physical and psychological difficulties. The applicant, coming from a supportive family, has no prior criminal history and possesses high rehabilitative prospects. The sentencing judge imposed a sentence of six years imprisonment with parole eligibility after serving half that period for the grievous bodily harm offence. The applicant appealed against the sentence, arguing that the judge gave insufficient weight to his age, prior good history, and rehabilitative prospects, and that the sentence was manifestly excessive.

The court was required to determine whether the sentence imposed by the judge was manifestly excessive or inadequate, taking into account the principles of proportionality and individual circumstances. The applicant contended that the judge did not adequately consider his age, prior good history, and rehabilitative prospects, which warranted a lesser sentence. The court considered the severity of the injuries inflicted on the complainant, the circumstances of the offence, and the applicant's background. The court found that the judge had appropriately considered the applicant's circumstances and that the sentence was not manifestly excessive. The court held that the sentence was proportionate to the seriousness of the offence, taking into account the need for general and specific deterrence.

The court dismissed the application for leave to appeal. The sentencing judge had appropriately weighed the relevant factors and imposed a sentence that was proportionate to the offence. The court was satisfied that the sentence was not manifestly excessive or inadequate, and therefore dismissed the application for leave to appeal. This decision underscores the importance of considering both the severity of the offence and the individual circumstances of the offender when determining an appropriate sentence.

Orders

Orders of the court

Application for leave to appeal is dismissed

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 Dietz [2009] QCA 392

Most Recent Citation

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

Cases citing this decision · 15 of 15 shown

R v Brookes
[2025] QCA 38 Para 1

…offender as well as the victim. An appropriate sentence must be one that will discourage and deter such resorts to violence.”[12] [12] R v Dietz [2009] QCA 392 at [29] per Muir JA (with whom Daubney J agreed) referring to Thomas and White JJ in R v Amituanai (1995) 78 A Crim R 588 at 596-7.…
R v Jack
[2025] QCA 26

…tempted to demonstrate that the sentence was manifestly excessive by reference to three Court of Appeal decisions: R v Ford [2011] QCA 208, R v Dietz [2009] QCA 392 and R v Green [2013] QCA 24. The first error in the applicant’s approach is treating any of those decisions as authoritative decisions on comparative…
R v Thompson
[2019] QCA 209 Para 35

…tence where grievous bodily harm was caused by one punch and without a weapon. The offender in that case was sentenced to six years imprisonment. [40][2009] QCA 392. Discussion…
R v MCZ
[2018] QCA 240

…One of the decisions cited in Parker is R v Dietz [2009] QCA 392. In that case, the offender caused severe neurological injury to the complainant by felling him with a punch, causing him to hit his head on the road. That offender showed no remorse, lied to the police, cross-examined all of the witnesses at commit…
R v Tom
[2018] QCA 218 Para 1

…ncing judge received submissions from counsel for the Crown which referred him to R v Bryan; ex-parte Attorney-General (Qld) [2003] QCA 18, R v Dietz [2009] QCA 392 and R v Pitt [2017] QCA 13 in support of an ultimate submission that a sentence in the range of 5 or 6 years imprisonment, with a declaration that th…
May v Thomas [No 3]
[2015] WADC 59 Para 1

…standing on a hard surface. Convictions for unlawfully causing grievous bodily harm have been obtained in similar circumstances, [ R v Dietz [2009] QCA 392; R v Green [2013] QCA 24 [16]] although much will depend upon the particular circumstances. [ See for example Hooper v The Queen [2003] WASCA 179 – a case in…
R v Aplin
[2014] QCA 332 Para 1

…Crim R 489, R v Lewis; ex parte Attorney-General (Qld) [2003] QCA 133, R v Thomason; ex parte Attorney-General (Qld) [2011] QCA 9, R v Dietz [2009] QCA 392, R v Ford [2011] QCA 208, R v Parker , and R v Tahir; ex parte Attorney-General (Qld) [2013] QCA 294. The applicant submitted that six years imprisonment mig…
May v Thomas
[2014] WASCA 176

…A 94 Powell v The Queen (Unreported, WACCA, Library No 4004, 2 December 1980) Quartermaine v The State of Western Australia [2008] WASCA 22 R v Dietz [2009] QCA 392 R v Green [2013] QCA 24 R v Hung [2012] QCA 341; [2013] 2 Qd R 64 R v Portelli [2004] VSCA 178; (2004) 10 VR 259 R v Trieu [2008] QCA 028 Watkins v V…
R v Dancey
[2013] QCA 135

…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 Green
[2013] QCA 24 Para 1

…The trial judge referred to R v Dietz [2009] QCA 392 and R v Madden [2005] QCA 439. In Dietz the court refused an application for leave to appeal against a sentence of six years imprisonment with parole eligibility after serving half that period. That offender punched the complainant’s head and as a result the co…
R v Cullen and Hutchins; ex parte
[2012] QCA 222 Para 1

…e for both offenders in light of their youth and criminal history was a head sentence of between five and six years imprisonment. [1][2011] QCA 9. [2][2009] QCA 392. [3][2006] QCA 180. [4][2005] QCA 179 [5][2011] QCA 208.…
R v Ford
[2011] QCA 208 Para 1

…mitted that a sentence of between six and seven years imprisonment should be imposed, giving proper recognition to the applicant's plea of guilty. [1][2009] QCA 392.…
R v Parker
[2011] QCA 198 Para 1

…s, necessitating urgent neurosurgery and rehabilitation, the complainant in Dietz recovered to the point where he was able to work and drive. [10][2009] QCA 392.…
R v Messent
[2011] QCA 125 Para 1

…A-G (Qld) [59]; R v Dietz [60] and R v Johnston [61], but the latter was not a relevant comparable sentence. [58][2011] QCA 9. [59][2003] QCA 18. [60][2009] QCA 392. [61][2004] QCA 12.…
R v Thomason; ex parte A-G (Qld)
[2011] QCA 9 Para 1

…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 588 (as to the significance…

View all 15 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Kinersen-Smith & Connor; ex parte
[2009] QCA 153 Para 1

…20 months to a sentence of six years imprisonment with parole eligibility after two or two and a half years. [4][2005] QCA 179. [5][2006] QCA 521. [6][2009] QCA 153. [7][2003] QCA 18.…
R v Fisher
[2008] QCA 307 Para 1

…itted that the appropriate sentence in this case was four to five years imprisonment with a parole eligibility date or suspension after one-third. [2][2008] QCA 307. [3](1995) 78 A Crim R 588.…
R v Dillon; ex parte A-G (Qld)
[2006] QCA 521 Para 1

…nt suspended after 20 months to a sentence of six years imprisonment with parole eligibility after two or two and a half years. [4][2005] QCA 179. [5][2006] QCA 521. [6][2009] QCA 153. [7][2003] QCA 18.…
R v Mladenovic; ex parte Attorney-General
[2006] QCA 176 Para 1

…these competing considerations often makes the sentencing process difficult. It is particularly so in this instance. [8][2005] QCA 218 at [5]-[6]. [9][2006] QCA 176 at [27]. [10][2007] QCA 47 at [21]. [11][2009] QCA 153 at [26]-[28].…
R v Madden
[2005] QCA 439 Para 1

…rview suggested that Dietz was trained in boxing so that he would well have known the potential consequences of punching people in the way he did. [1][2005] QCA 439.…
R v Horne
[2005] QCA 218 Para 1

…he balancing exercise between these competing considerations often makes the sentencing process difficult. It is particularly so in this instance. [8][2005] QCA 218 at [5]-[6]. [9][2006] QCA 176 at [27]. [10][2007] QCA 47 at [21]. [11][2009] QCA 153 at [26]-[28].…
R v Tupou; Ex Parte A-G (Qld)
[2005] QCA 179 Para 1

…ur years imprisonment suspended after 20 months to a sentence of six years imprisonment with parole eligibility after two or two and a half years. [4][2005] QCA 179. [5][2006] QCA 521. [6][2009] QCA 153. [7][2003] QCA 18.…
R v Bryan; ex parte Attorney-General
[2003] QCA 18 Para 1

…ence of six years imprisonment with parole eligibility after two or two and a half years. [4][2005] QCA 179. [5][2006] QCA 521. [6][2009] QCA 153. [7][2003] QCA 18.…
R v Amituanai
[1995] QCA 80

…good history and rehabilitative prospects – whether the sentence was manifestly excessive R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, considered R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered R v Dillon; ex parte A-G (Qld) [2006] QCA 521, cited R v Fisher (2008) 189 A C…
[2007] QCA 47
[2007] QCA 47 Para 1

…ns often makes the sentencing process difficult. It is particularly so in this instance. [8][2005] QCA 218 at [5]-[6]. [9][2006] QCA 176 at [27]. [10][2007] QCA 47 at [21]. [11][2009] QCA 153 at [26]-[28].…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Dietz [2009] QCA 392
PARTIES:	R v DIETZ, Benjamin James (applicant)
FILE NO/S:	CA No 234 of 2009 DC No 123 of 2009 DC No 124 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Hervey Bay
DELIVERED ON:	18 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2009
JUDGES:	McMurdo P, Muir JA and Daubney J Separate reasons for judgment of each member of the Court, Muir JA and Daubney J concurring as to the order made, McMurdo P dissenting
ORDER:	Application for leave to appeal is dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant was convicted after a trial of one count of doing grievous bodily harm and pleaded guilty to one count of assault and doing bodily harm – the applicant punched the complainant who then hit his head on the bitumen – the complainant suffered dreadful injuries and has ongoing physical and psychological difficulties – the applicant comes from a supportive family, has no prior criminal history and high rehabilitative prospects – the applicant was sentenced for the offence of grievous bodily harm to six years imprisonment with parole eligibility after serving half that period – whether the judge gave insufficient weight to the applicant's age, prior good history and rehabilitative prospects – whether the sentence was manifestly excessive R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, considered R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered R v Dillon; ex parte A-G (Qld)[2006] QCA 521, cited R v Fisher (2008) 189 A Crim R 16; [2008] QCA 307, considered R v Horne [2005] QCA 218, cited R v Kinersen-Smith & Connor; ex parte A-G (Qld)[2009] QCA 153, cited R v Madden [2005] QCA 439, considered R v Mladenovic; ex parte A-G (Qld)[2006] QCA 176, cited R v Tupou; ex parte A-G (Qld)[2005] QCA 179, considered
COUNSEL:	M A Green for the applicant M B Lehane for the respondent
SOLICITORS:	Milburn Guttridge Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent