R v Douglas - [2004] QCA 1

SUPREME COURT OF QUEENSLAND

CITATION:

R v Douglas [2004] QCA 1

PARTIES:

R
v
DOUGLAS, Gillian Jean
(applicant)

FILE NO/S:

CA No 312 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Mt Isa

DELIVERED EX TEMPORE ON:

3 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2004

JUDGES:

McMurdo P and Davies and McPherson 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 – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CIRCUMSTANCES OF OFFENCE – where applicant pleaded guilty to dangerous operation of a motor vehicle and guilty to grievous bodily harm simpliciter but not guilty to grievous bodily harm with intent – convicted of grievous bodily harm with intent and sentenced to six years imprisonment – grievous bodily harm inflicted on pregnant woman – some degree of ‘provocation in a non-legal sense’ – whether mitigating circumstances adequately taken into account

R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, considered
R v Dempsey [2001] QCA 141; CA No 356 of 2000, 17 April 2001, considered
R v Wiggins [2003] QCA 367; CA No 134 of 2003, 27 August 2003, considered

COUNSEL:

The applicant appeared on her own behalf
M J Copley for the respondent

SOLICITORS:

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

THE PRESIDENT: On 25 August 2003 in the Circuit Court at Mt Isa the applicant pleaded guilty to dangerous operation of a motor vehicle, count 1; guilty to grievous bodily harm simpliciter but not guilty to grievous bodily harm with intent to do grievous bodily harm, count 2; and not guilty to killing an unborn child, count 3.

The prosecution did not accept the limited plea of guilty in respect of count 2 and a jury trial proceeded in respect of counts 2 and 3.

On 26 August 2003 she was convicted of count 2 but acquitted of count 3. She was sentenced to six years' imprisonment in respect of count 2 and to two years' concurrent imprisonment in respect of count 1. As these offences constituted a breach of a suspended sentence imposed on 25 February 1999 in the Normanton Magistrates Court she was also ordered to serve an additional four months' imprisonment cumulative upon the sentences imposed on counts 1 and 2.

The applicant, who is self represented on this appeal, contends the sentence is manifestly excessive. In her written outline she submits that the learned sentencing Judge did not take into account her preparedness to plead guilty to some offences and that she was acquitted on the charge of killing an unborn child, the offence which first brought her for trial into the Supreme Court.

She further contends that the learned sentencing Judge did not take into account the fact that she…

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 Douglas

Details

AGLC: R v Douglas [2004] QCA 1
Case: [2004] QCA 1
Decision Date: 3 February 2004

CaseChat Overview and Summary

The matter of R v Douglas came before the court where the applicant, Douglas, had pleaded guilty to dangerous operation of a motor vehicle and grievous bodily harm simpliciter, but not guilty to grievous bodily harm with intent. The court convicted Douglas of grievous bodily harm with intent and sentenced him to six years imprisonment. The victim of the grievous bodily harm was a pregnant woman, and there was some degree of ‘provocation in a non-legal sense’ that was considered during sentencing. The applicant sought leave to appeal against the sentence, arguing that the mitigating circumstances were not adequately taken into account.

The primary legal issue before the court was whether the sentence imposed was appropriate in all the circumstances, particularly with respect to the mitigating factors that were presented. The court was required to consider whether the trial judge had given adequate weight to the mitigating circumstances, including the degree of provocation and the fact that the victim was pregnant. The applicant's argument was that the sentence did not reflect the full extent of the mitigating circumstances, and as such, it was excessive and should be reduced.

The court examined the sentencing principles and the specific circumstances of the case, including the degree of provocation and the vulnerability of the victim. The court found that the trial judge had considered the mitigating factors in detail and had appropriately balanced these against the seriousness of the offence. The court held that the sentence was not excessive and that the mitigating circumstances had been adequately taken into account. 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

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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 Douglas [2004] QCA 1
PARTIES:	R v DOUGLAS, Gillian Jean (applicant)
FILE NO/S:	CA No 312 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Mt Isa
DELIVERED EX TEMPORE ON:	3 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2004
JUDGES:	McMurdo P and Davies and McPherson 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 – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CIRCUMSTANCES OF OFFENCE – where applicant pleaded guilty to dangerous operation of a motor vehicle and guilty to grievous bodily harm simpliciter but not guilty to grievous bodily harm with intent – convicted of grievous bodily harm with intent and sentenced to six years imprisonment – grievous bodily harm inflicted on pregnant woman – some degree of ‘provocation in a non-legal sense’ – whether mitigating circumstances adequately taken into account R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, considered R v Dempsey [2001] QCA 141; CA No 356 of 2000, 17 April 2001, considered R v Wiggins [2003] QCA 367; CA No 134 of 2003, 27 August 2003, considered
COUNSEL:	The applicant appeared on her own behalf M J Copley for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent