R v Gaudry - [2005] QCA 395

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gaudry [2005] QCA 395

PARTIES:

R
v
GAUDRY, Robert John
(appellant/applicant)

FILE NO/S:

CA No 174 of 2005
DC No 192 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

28 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2005

JUDGES:

McMurdo P, Keane JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence granted and appeal allowed, but only to the extent of substituting a period of two years, in lieu of five years, in the non-contact order

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - PARTICULAR CASES - where the appellant had pleaded guilty to all the offences with which he had been charged - where the appellant interrupted the learned sentencing judge in the course of his sentencing remarks and asked to be allowed to change his guilty plea - where the learned sentencing judge refused to allow the appellant to change his plea - whether any miscarriage of justice had been occasioned by allowing the appellant's plea of guilty to stand

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 ALLOWED - where the appellant was convicted of offences involving common assault, wilful damage, serious assault and assault occasioning bodily harm whilst armed - where the appellant had been sentenced to two and a half years imprisonment suspended after 10 months with an operational period of five years - where the learned sentencing judge had also ordered that the appellant have no contact with certain persons pursuant to Pt 3A Penalties and Sentences Act 1992 (Qld) for a period of five years - whether the sentence imposed on the appellant was manifestly excessive - whether the effect of s 43C and s 144 of the Penalties and Sentences Act 1992 (Qld) meant that the maximum term of a non-contact order could be no greater than two years

Penalties and Sentences Act 1992 (Qld), s 43C, s 144

Meissner v The Queen (1995) 184 CLR 132, applied

R v Mundraby [2004] QCA 493; CA No 312 of 2004, 23 December 2004, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with the orders proposed by Keane JA and with his reasons.

KEANE JA: On 7 June 2005, the applicant pleaded guilty to three counts of common assault, two counts of wilful damage, two counts of serious assault and one count of assault…

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 Gaudry

Details

AGLC: R v Gaudry [2005] QCA 395
Case: [2005] QCA 395
Decision Date: 28 October 2005

CaseChat Overview and Summary

The appellant in this case had pleaded guilty to a series of offences including common assault, wilful damage, serious assault, and assault occasioning bodily harm while armed. The appeal centred on two main issues: firstly, whether a miscarriage of justice had occurred when the sentencing judge did not allow the appellant to withdraw his guilty plea after interrupting the sentencing remarks, and secondly, whether the sentence imposed was manifestly excessive. The Court of Appeal addressed these issues by examining the circumstances under which the appellant's plea was entered and the proportionality and legality of the sentence imposed.

The Court of Appeal considered whether the appellant's interruption during sentencing and his request to withdraw his guilty plea constituted a miscarriage of justice. The Court found that there was no miscarriage of justice because the appellant had clearly understood the consequences of his plea and had voluntarily entered it. The Court also noted that the appellant had not provided any justification for his request to withdraw the plea at the time of sentencing, nor did he demonstrate any external pressure or coercion.

In relation to the sentence, the Court examined whether the sentence of two and a half years imprisonment suspended after 10 months, with an operational period of five years, was manifestly excessive. The Court also considered the non-contact order imposed on the appellant, which restricted his contact with certain persons for five years. The Court held that while the custodial part of the sentence was not manifestly excessive, the non-contact order exceeded the permissible period under the relevant statutory provisions. The Court found that the maximum term of a non-contact order should not exceed two years, in line with the provisions of sections 43C and 144 of the Penalties and Sentences Act 1992 (Qld).

The Court dismissed the appeal against conviction but granted the application for leave to appeal against the sentence. The appeal against the sentence was allowed to the extent of reducing the non-contact order from five years to two years. The Court's final orders were to dismiss the appeal against conviction and to allow the appeal against sentence by substituting a period of two years for the five-year non-contact order.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence granted and appeal allowed, but only to the extent of substituting a period of two years, in lieu of five years, in the non-contact order

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 Gaudry [2005] QCA 395
PARTIES:	R v GAUDRY, Robert John (appellant/applicant)
FILE NO/S:	CA No 174 of 2005 DC No 192 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	28 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2005
JUDGES:	McMurdo P, Keane JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence granted and appeal allowed, but only to the extent of substituting a period of two years, in lieu of five years, in the non-contact order
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - PARTICULAR CASES - where the appellant had pleaded guilty to all the offences with which he had been charged - where the appellant interrupted the learned sentencing judge in the course of his sentencing remarks and asked to be allowed to change his guilty plea - where the learned sentencing judge refused to allow the appellant to change his plea - whether any miscarriage of justice had been occasioned by allowing the appellant's plea of guilty to stand 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 ALLOWED - where the appellant was convicted of offences involving common assault, wilful damage, serious assault and assault occasioning bodily harm whilst armed - where the appellant had been sentenced to two and a half years imprisonment suspended after 10 months with an operational period of five years - where the learned sentencing judge had also ordered that the appellant have no contact with certain persons pursuant to Pt 3A Penalties and Sentences Act 1992 (Qld) for a period of five years - whether the sentence imposed on the appellant was manifestly excessive - whether the effect of s 43C and s 144 of the Penalties and Sentences Act 1992 (Qld) meant that the maximum term of a non-contact order could be no greater than two years Penalties and Sentences Act 1992 (Qld), s 43C, s 144 Meissner v The Queen (1995) 184 CLR 132, applied R v Mundraby [2004] QCA 493; CA No 312 of 2004, 23 December 2004, cited
COUNSEL:	The appellant/applicant appeared on his own behalf R G Martin SC for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent