R v Ford - [2011] QCA 208

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ford [2011] QCA 208

PARTIES:

R
v
FORD, Damien Robert James
(applicant)

FILE NO/S:

CA No 40 of 2011
DC No 307 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

26 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2011

JUDGES:

Margaret McMurdo P, Muir JA and Boddice 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 – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to assault occasioning bodily harm (count 1) and grievous bodily harm (count 2) – where the applicant was sentenced to nine months imprisonment on count 1 and six years imprisonment on count 2 with parole recommendation fixed after 2 years – where the grievous bodily harm was inflicted by a single punch – where the complainant suffered grave injuries – where the applicant contended the primary judge failed to give proper recognition to the applicant's remorse, youth, lack of criminal history and prospects of rehabilitation – whether the sentence was manifestly excessive

R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited
R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited
R v Dietz [2009] QCA 392, considered
R v Kinersen-Smith & Connor; ex parte A-G (Qld) [2009] QCA 153, considered
R v Kirkby [2001] QCA 37, cited
R v Parker [2011] QCA 198, cited
R v Thomason; ex parte A-G (Qld)[2011] QCA 9, considered

COUNSEL:

M F McMillan (sol) for the applicant
M B Lehane for the respondent

SOLICITORS:

McMillan Criminal Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The applicant, Damien Robert James Ford, pleaded guilty at the Southport District Court on 18 February 2011 to unlawfully assaulting Meghan Cormie Colivas and doing her bodily harm (count 1) and unlawfully doing grievous bodily harm to Samuel John Ford (count 2). It is not suggested the applicant and the male complainant are relatives. The applicant was sentenced on count 1 to nine months imprisonment and on count 2 to six years imprisonment with the parole recommendation date fixed at 18 February 2013, that is, after two years. He has applied for leave to appeal against his sentence on the grounds that it is manifestly excessive.

The applicant was only 18 years old at the time of the commission of the offences which both occurred on 10 October 2009. He had turned 19 by the time of his sentence. He had no criminal history.

It was common ground that the applicant was larger than the male complainant.

A few weeks beforehand, they were in a dispute at a party. They met up…

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 Ford

Details

AGLC: R v Ford [2011] QCA 208
Case: [2011] QCA 208
Decision Date: 26 August 2011

CaseChat Overview and Summary

The case of R v Ford involved an appeal against the sentence imposed by the court following the applicant's guilty plea to charges of assault occasioning bodily harm and grievous bodily harm. The applicant was sentenced to nine months imprisonment for the first count and six years for the second count, with parole eligibility after two years. The grievous bodily harm was caused by a single punch, resulting in significant injuries to the complainant. The applicant argued that the sentence was manifestly excessive, claiming that the primary judge did not adequately consider factors such as the applicant's remorse, youth, lack of criminal history, and potential for rehabilitation.

The court was tasked with determining whether the sentence was manifestly excessive or inadequate, considering the principles of proportionality and the need for punishment and deterrence. The applicant's arguments centred on the mitigating factors that should have warranted a lesser sentence. The court considered the severity of the injuries, the nature of the offence, and the impact on the victim. It also examined the applicant's background and the potential for rehabilitation, weighing these against the statutory guidelines and judicial precedents.

In its reasoning, the court found that while the mitigating factors presented by the applicant were significant, they did not outweigh the seriousness of the grievous bodily harm inflicted. The court held that the sentence imposed was proportionate to the gravity of the offences and took into account the relevant statutory objectives of punishment and deterrence. The court concluded that the sentence did not manifest any excessiveness or inadequacy, and therefore, the applicant's appeal against sentence was unsuccessful.

Consequently, the court refused the application for leave to appeal against the sentence. The original sentence of nine months imprisonment for the assault occasioning bodily harm and six years for the grievous bodily harm, with parole eligibility after two years, was upheld.

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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CITATION:	R v Ford [2011] QCA 208
PARTIES:	R v FORD, Damien Robert James (applicant)
FILE NO/S:	CA No 40 of 2011 DC No 307 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	26 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2011
JUDGES:	Margaret McMurdo P, Muir JA and Boddice 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 – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to assault occasioning bodily harm (count 1) and grievous bodily harm (count 2) – where the applicant was sentenced to nine months imprisonment on count 1 and six years imprisonment on count 2 with parole recommendation fixed after 2 years – where the grievous bodily harm was inflicted by a single punch – where the complainant suffered grave injuries – where the applicant contended the primary judge failed to give proper recognition to the applicant's remorse, youth, lack of criminal history and prospects of rehabilitation – whether the sentence was manifestly excessive R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited R v Dietz [2009] QCA 392, considered R v Kinersen-Smith & Connor; ex parte A-G (Qld) [2009] QCA 153, considered R v Kirkby [2001] QCA 37, cited R v Parker [2011] QCA 198, cited R v Thomason; ex parte A-G (Qld)[2011] QCA 9, considered
COUNSEL:	M F McMillan (sol) for the applicant M B Lehane for the respondent
SOLICITORS:	McMillan Criminal Law for the applicant Director of Public Prosecutions (Queensland) for the respondent