R v Fisher - [2008] QCA 307

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fisher [2008] QCA 307

PARTIES:

R
v
FISHER, Shannon Wade
(applicant)

FILE NO/S:

CA No 171 of 2008
DC No 70 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

3 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2008

JUDGES:

Keane JA, Jones and Atkinson JJ
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 is 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 – GENERALLY – where applicant pleaded guilty to one count of grievous bodily harm – where applicant hit and kicked complainant causing facial fractures and other significant injuries necessitating hospitalisation - where applicant was the principal offender – where unprovoked assault was in company and in a public place – where applicant was sentenced to imprisonment for four years with a parole eligibility date after he had served one third of his sentence – whether sentence is manifestly excessive

R v Amituanai (1995) 78 A Crim R 588, [1995] QCA 80, considered
R v Craske[2002] QCA 49, considered
R v Dillon; ex parte A-G (Qld) [2006] QCA 521, considered
R v Tupou; ex parte A-G (Qld)[2005] QCA 179, considered

R v Verheyen [2008] QCA 150, considered

COUNSEL:

The applicant appeared on his own behalf
G J Cummings for respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Atkinson J. I agree with her Honour's reasons and the order proposed by her Honour.

JONES J: I agree with the reasons of Atkinson J and with the order she proposes.

ATKINSON J: On 3 June 2008 the applicant was convicted in the District Court in Bundaberg upon his plea of guilty to one count of grievous bodily harm. He was arraigned with three other co-accused, each of whom proceeded to sentence immediately whereas the applicant’s sentence was to be contested. The applicant was sentenced on the following day but by then his sentence was not contested as he agreed to be sentenced on the facts presented by the prosecution. He was sentenced to four years imprisonment with a parole eligibility date of 4 December 2009, after he had served one-third of his sentence. He seeks leave to appeal against the sentence on the ground that the sentence is manifestly excessive.

The circumstances of his offending were set out in a schedule of facts tendered before the learned sentencing judge. The four defendants were aged between 17 and 19 years of age. The applicant was 19 and…

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 Fisher

Details

AGLC: R v Fisher [2008] QCA 307
Case: [2008] QCA 307
Decision Date: 3 October 2008

CaseChat Overview and Summary

The applicant in this case pleaded guilty to one count of grievous bodily harm. The incident involved the applicant hitting and kicking a complainant, causing significant facial fractures and other injuries that required hospitalisation. The assault was unprovoked, occurred in public, and was carried out in the company of others, with the applicant being the principal offender. The applicant was sentenced to imprisonment for a period of four years, with parole eligibility only after serving one-third of his sentence. The applicant subsequently sought leave to appeal against his sentence, contending that it was manifestly excessive.

The central legal issue was whether the sentence imposed was manifestly excessive. The applicant argued that the four-year imprisonment term, with a lengthy period before parole eligibility, was disproportionate to the offence committed. The court needed to assess the severity of the assault, the role of the applicant, and the principles of sentencing to determine whether the sentence was appropriate. The court had to weigh the need for punishment against the principles of proportionality and deterrence.

In dismissing the application, the court found that the sentence was not manifestly excessive. The court acknowledged the severity of the injuries inflicted and the public nature of the assault. It considered the need to deter such behaviour and the role of the applicant as the principal offender. The court concluded that the sentence was proportionate to the gravity of the offence and the need to uphold public confidence in the criminal justice system. The punishment was deemed necessary to achieve the objectives of punishment, deterrence, and protection of the community.

The court refused the applicant's application for leave to appeal against the sentence. This decision upheld the original sentencing, affirming the appropriateness of the punishment imposed for the grievous bodily harm committed.

Orders

Orders of the court

Application for leave to appeal against sentence is 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 Fisher [2008] QCA 307
PARTIES:	R v FISHER, Shannon Wade (applicant)
FILE NO/S:	CA No 171 of 2008 DC No 70 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	3 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2008
JUDGES:	Keane JA, Jones and Atkinson JJ 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 is 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 – GENERALLY – where applicant pleaded guilty to one count of grievous bodily harm – where applicant hit and kicked complainant causing facial fractures and other significant injuries necessitating hospitalisation - where applicant was the principal offender – where unprovoked assault was in company and in a public place – where applicant was sentenced to imprisonment for four years with a parole eligibility date after he had served one third of his sentence – whether sentence is manifestly excessive R v Amituanai (1995) 78 A Crim R 588, [1995] QCA 80, considered R v Craske[2002] QCA 49, considered R v Dillon; ex parte A-G (Qld) [2006] QCA 521, considered R v Tupou; ex parte A-G (Qld)[2005] QCA 179, considered R v Verheyen [2008] QCA 150, considered
COUNSEL:	The applicant appeared on his own behalf G J Cummings for respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent