R v Fall - [2016] QCA 327

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fall [2016] QCA 327

PARTIES:

R
v
FALL, Samuel Jacob
(applicant)

FILE NOS:

CA No 127 of 2016
DC No 558 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 5 May 2016

DELIVERED ON:

9 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2016

JUDGES:

Fraser and Philippides JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal against sentence is granted.

2.   The appeal is allowed.

3.   For the offence of doing grievous bodily harm (count 1) the applicant is sentenced to a period of imprisonment of two years six months suspended after eight months with an operational period of three years.

4.   For the offence of assault occasioning bodily harm in company (count 2) the applicant is sentenced to a period of imprisonment of two years, suspended after eight months, with an operational period of three years.

5.   The sentences on counts 1 and 2 are to be served concurrently.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and his co-offenders were involved in a fight – where the applicant was 19 at the time of the incident, had no relevant criminal history, was unlikely to reoffend and was remorseful – where the applicant was sentenced for doing grievous bodily harm to a period of three years’ imprisonment, suspended after 12 months, with an operational period of three years and six months – where the applicant was sentenced for assault occasioning bodily harm in company for a period of two years’ imprisonment, suspended after 12 months, with an operational period of three years and six months, to be served concurrently – where the applicant would serve only two months less in custody prior to suspension or parole than one of his co-offenders who was the principal offender and inflicted the grievous bodily harm, was 21 at the time of the incident and had previous convictions involving dishonesty and violence – whether the sentences were manifestly excessive – whether the sentences engaged the parity principle

Penalties and Sentences Act 1992 (Qld), s 9

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Amituanai (1995) 78 A Crim 588; [1995] QCA 80, considered
R v Dobinson[2006] QCA 357, distinguished
R v Fisher (2008) 189 A Crim R 16; [2008] QCA 307, considered
R v Floyd [2014] 1 Qd R 348; [2013] QCA 74, cited
R v OS[2016] QCA 278, cited

COUNSEL:

M J Byrne QC for the applicant
S J Farnden for the respondent

SOLICITORS:

Peter Shields Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Jackson…

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 Fall

Details

AGLC: R v Fall [2016] QCA 327
Case: [2016] QCA 327
Decision Date: 9 December 2016

CaseChat Overview and Summary

The case of R v Fall involved the applicant, who was sentenced for his involvement in a fight. The applicant, along with his co-offenders, was convicted of grievous bodily harm and assault occasioning bodily harm in company. The sentences imposed were a period of three years' imprisonment, suspended after 12 months, with an operational period of three years and six months for the grievous bodily harm charge, and a two-year sentence, also suspended after 12 months, with an operational period of three years and six months for the assault charge, to be served concurrently. The applicant, who was 19 at the time of the incident, had no relevant criminal history, was unlikely to reoffend and was remorseful. His co-offender, the principal offender, was 21, had previous convictions involving dishonesty and violence, and inflicted the grievous bodily harm.

The legal issues the court was required to decide were whether the sentences imposed were manifestly excessive or inadequate, and whether they engaged the parity principle. The applicant argued that his sentences were manifestly excessive, particularly when compared to his co-offender's sentence. The court had to consider the applicant's age, criminal history, likelihood of reoffending, remorse, and the circumstances of the offence in determining whether the sentences were appropriate.

The court found that the sentences imposed were manifestly excessive and engaged the parity principle. The court noted that the applicant would serve only two months less in custody than his co-offender, despite being younger, having no criminal history, and being less culpable for the grievous bodily harm. The court also noted that the applicant was remorseful and unlikely to reoffend. The court held that the sentences did not adequately reflect the differences between the applicant and his co-offender and were therefore manifestly excessive.

The court granted the application for leave to appeal against sentence and allowed the appeal. The sentences were varied so that the applicant would serve a period of imprisonment of two years six months suspended after eight months, with an operational period of three years for the grievous bodily harm charge, and a period of imprisonment of two years, suspended after eight months, with an operational period of three years for the assault charge. The sentences on counts 1 and 2 are to be served concurrently.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed.

3. For the offence of doing grievous bodily harm (count 1) the applicant is sentenced to a period of imprisonment of two years six months suspended after eight months with an operational period of three years.

4. For the offence of assault occasioning bodily harm in company (count 2) the applicant is sentenced to a period of imprisonment of two years, suspended after eight months, with an operational period of three years.

5. The sentences on counts 1 and 2 are to be served concurrently.

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 Fall [2016] QCA 327
PARTIES:	R v FALL, Samuel Jacob (applicant)
FILE NOS:	CA No 127 of 2016 DC No 558 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 5 May 2016
DELIVERED ON:	9 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2016
JUDGES:	Fraser and Philippides JJA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is granted. 2. The appeal is allowed. 3. For the offence of doing grievous bodily harm (count 1) the applicant is sentenced to a period of imprisonment of two years six months suspended after eight months with an operational period of three years. 4. For the offence of assault occasioning bodily harm in company (count 2) the applicant is sentenced to a period of imprisonment of two years, suspended after eight months, with an operational period of three years. 5. The sentences on counts 1 and 2 are to be served concurrently.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and his co-offenders were involved in a fight – where the applicant was 19 at the time of the incident, had no relevant criminal history, was unlikely to reoffend and was remorseful – where the applicant was sentenced for doing grievous bodily harm to a period of three years’ imprisonment, suspended after 12 months, with an operational period of three years and six months – where the applicant was sentenced for assault occasioning bodily harm in company for a period of two years’ imprisonment, suspended after 12 months, with an operational period of three years and six months, to be served concurrently – where the applicant would serve only two months less in custody prior to suspension or parole than one of his co-offenders who was the principal offender and inflicted the grievous bodily harm, was 21 at the time of the incident and had previous convictions involving dishonesty and violence – whether the sentences were manifestly excessive – whether the sentences engaged the parity principle Penalties and Sentences Act 1992 (Qld), s 9 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Amituanai (1995) 78 A Crim 588; [1995] QCA 80, considered R v Dobinson[2006] QCA 357, distinguished R v Fisher (2008) 189 A Crim R 16; [2008] QCA 307, considered R v Floyd [2014] 1 Qd R 348; [2013] QCA 74, cited R v OS[2016] QCA 278, cited
COUNSEL:	M J Byrne QC for the applicant S J Farnden for the respondent
SOLICITORS:	Peter Shields Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent