R v FJ; ex parte A-G (Qld) - [2005] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:

R v FJ; ex parte A-G (Qld) [2005] QCA 15

PARTIES:

R
v
FJ
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 338 of 2004
DC No 85 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Gladstone

DELIVERED EX TEMPORE ON:

9 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2005

JUDGES:

McMurdo P, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where respondent entered a plea of guilty at a late stage to offences of grievous bodily harm and assault occasioning bodily harm against their eight month old child - where violence was not isolated - where respondent phoned ambulance - where some evidence of remorse - where child had reached all developmental milestones since the offences occurred - where respondent had no similar criminal history - whether sentence was manifestly inadequate

R v K [2003] QCA 368, CA No 168 of 2003, 27 August 2003, considered
R v Lawrence [2002] QCA 526, CA No 131 of 2002, 2 December 2002, considered
R v Petersen [1999] 2 Qd R 85, considered
R v Smith [1997] QCA 350, CA No 29 of 1997, 10 October 1997, considered

COUNSEL:

R G Martin SC for the appellant
A J Glynn SC for the respondent

SOLICITORS:

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

THE PRESIDENT: The respondent was convicted after pleading guilty to one count of grievous bodily harm and one count of assault occasioning bodily harm in the District Court at Gladstone. He was sentenced on the first count to five and a half years imprisonment and on the second to 44 months imprisonment with a recommendation in each case that he be eligible for post-prison community-based release after 22 months. The appellant, the Attorney-General of Queensland, contends the sentence is manifestly inadequate in that it fails to reflect adequately the gravity of the offence and to take sufficiently into account the aspect of general deterrence.

Both offences occurred around about February 2003 when the complainant, the respondent's son, was eight months old. The respondent lived in central Queensland with the complainant and his mother who was at work, it seems, when the offences occurred. At about 8 p.m. the respondent telephoned the ambulance on 000 and reported that his son had stopped breathing and appeared limp.

Ambulance officers attended and found the boy lying on the lounge room floor breathing shallowly. When they moved the child he vomited blood. His breathing improved but his pupils were unreactive and he was not in…

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.

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Details

Case: [2005] QCA 15
Decision Date: 9 February 2005

CaseChat Overview and Summary

The appeal against the sentence imposed on FJ, who was convicted of grievous bodily harm and assault occasioning bodily harm against their eight-month-old child, was dismissed by the Queensland Court of Appeal. The Attorney General sought to increase the sentence on the grounds that it was manifestly inadequate. The offences involved non-isolated acts of violence, and the respondent called an ambulance post-incident, indicating some level of awareness of the severity of the situation. There was evidence of remorse, and the child had since reached all developmental milestones. The respondent had no prior criminal history.

The court needed to determine whether the original sentence was manifestly inadequate. It examined whether the sentence imposed was disproportionate to the severity of the offences. This involved assessing the nature of the offences, the level of culpability, the respondent's remorse, and the circumstances of the case, including the developmental progress of the child and the absence of prior criminal history. The court also considered relevant precedents such as R v K, R v Lawrence, R v Petersen, and R v Smith to guide its decision.

The Court of Appeal found that the original sentence was not manifestly inadequate. It held that the trial judge had appropriately considered the mitigating factors and the overall circumstances of the case. The court emphasised that the sentence reflected the gravity of the offences and the need for deterrence and rehabilitation. The appeal against the sentence was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v FJ; ex parte A-G (Qld) [2005] QCA 15
PARTIES:	R v FJ (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 338 of 2004 DC No 85 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Gladstone
DELIVERED EX TEMPORE ON:	9 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2005
JUDGES:	McMurdo P, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where respondent entered a plea of guilty at a late stage to offences of grievous bodily harm and assault occasioning bodily harm against their eight month old child - where violence was not isolated - where respondent phoned ambulance - where some evidence of remorse - where child had reached all developmental milestones since the offences occurred - where respondent had no similar criminal history - whether sentence was manifestly inadequate R v K [2003] QCA 368, CA No 168 of 2003, 27 August 2003, considered R v Lawrence [2002] QCA 526, CA No 131 of 2002, 2 December 2002, considered R v Petersen [1999] 2 Qd R 85, considered R v Smith [1997] QCA 350, CA No 29 of 1997, 10 October 1997, considered
COUNSEL:	R G Martin SC for the appellant A J Glynn SC for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent