R v Dwyer

Case [2008] QCA 117


SUPREME COURT OF QUEENSLAND

CITATION:

R v Dwyer [2008] QCA 117

PARTIES:

R
v
DWYER, Darren William
(applicant)

FILE NO/S:

CA No 308 of 2007
SC No 482 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2008

JUDGES:

de Jersey CJ, Keane JA and Douglas J
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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – where the applicant was convicted on his own plea of one count of manslaughter – where the applicant was sentenced to 10 years imprisonment for the offence of manslaughter – where the applicant was severely intoxicated at the time of the offending – where the applicant failed to call for help for the deceased for at least one hour after assaulting him and rendering him comatose – whether in the circumstances a sentence of 10 years imprisonment was within the proper range

Penalties and Sentences Act 1992 (Qld), s 161A, s 161B

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, applied
R v Haack; ex parte Attorney-General of Queensland[1999] QCA 76, applied
R v Matthews[2007] QCA 144, distinguished
R v Mooka[2007] QCA 36, considered
R v Rosenberger; ex parte Attorney-General [1995] 1 Qd R 677; [1994] QCA 488, applied
R v Sebo; ex parte A-G (Qld)[2007] QCA 426, considered

COUNSEL:

R A East for the applicant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. JERSEY CJ:  de I have had the advantage of reading the reasons for judgment of Keane JA.  I agree that the application for leave to appeal against sentence should be refused, for those reasons.  I add the following observation in relation to the submission by counsel for the applicant (see para 31 of his Honour’s reasons for judgment) that the learned sentencing judge should have regarded the applicant’s intoxication as reducing the gravity of his offending.

  1. This Court rejected such a position in R v Rosenberger; ex parte Attorney-General [1995] 1 Qd R 677, 678:

"In a number of cases, Bradley (1980) 2 Cr App R(S) 12 is referred to;  there Lord Widgery CJ said:

'This Court finds nothing in the case to indicate that that sentence was other than entirely correct.  It is said that he was in drink.  So he was.  But the day is long past when somebody can come along and say ‘I know I have committed these offences, but I was full of drink’.  If the drink is induced by…

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Details
AGLC
R v Dwyer [2008] QCA 117
Case
[2008] QCA 117
Decision Date

CaseChat Overview and Summary

The appellant, Dwyer, was convicted of manslaughter after pleading guilty to one count of the offence. He was sentenced to 10 years imprisonment. The appellant appealed against the sentence, arguing that the sentence was manifestly excessive. The appellant was severely intoxicated at the time of the offence and failed to call for help for at least one hour after assaulting the deceased and rendering him comatose. The appellant argued that the sentence should be reduced.

The court considered whether the sentence of 10 years imprisonment was within the proper range. The court considered the appellant's intoxication at the time of the offence and his failure to call for help, but also considered the gravity of the offence and the need for general deterrence. The court found that the sentence was within the proper range.

Accordingly, the court dismissed the appeal against sentence. The appellant's application for leave to appeal against the sentence was refused.

No orders were made as the appeal against sentence was dismissed.

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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