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
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
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.
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…
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 Dwyer
Sign in free to access the full text
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