R v Graham - [2006] QCA 106

SUPREME COURT OF QUEENSLAND

CITATION:

R v Graham [2006] QCA 106

PARTIES:

R
v
GRAHAM, Peter Lindsay

(applicant/appellant)

FILE NO/S:

CA No 80 of 2006

DC No 3559 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

12 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2006

JUDGES:

McMurdo P, Keane JA and Chesterman J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence allowed

2. Sentence imposed on applicant varied by ordering that applicant serve 40 days imprisonment instead of six months and that applicant be admitted to probation as at 12 April 2006

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 GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY - where applicant pleaded guilty together with co-offenders Johns and Middleton to unlawfully assaulting complainant and doing him bodily harm with aggravating circumstances of being in company and armed with a dangerous instrument - where applicant and Johns each sentenced to six months imprisonment and three years probation and Middleton sentenced to three months imprisonment and three years probation – where probation orders also required all three offenders to undergo an appropriate anger management course - where applicant claims that sentence imposed was manifestly excessive in all the circumstances - whether there were pertinent distinctions between involvement of applicant and of his co-offenders which would justify a different sentence imposed on applicant

R v Middleton and Johns [2006] QCA 92; CA Nos 58 and 59 of 2006, 31 March 2006, approved

COUNSEL:

R A East for the applicant/appellant

C W Heaton for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant pleaded guilty on 30 March this year together with his co-offenders, Martin Geoffrey Johns and James Middleton, to unlawfully assaulting Leeson Rose and doing him bodily harm on 20 March 2005 with the aggravating circumstances that they were in company and armed with a dangerous instrument. The applicant and Johns were each sentenced to six months imprisonment and three years probation. Middleton was sentenced to three months imprisonment and three years probation. Each probation order had a special condition that the probationers receive and undergo any treatment or course in relation to anger management as may be deemed appropriate. The applicant Graham today contends that the sentence imposed was manifestly excessive.

The applicant was 20 at the time of the offence and 21 at sentence. He had some minor unrelated criminal history in 2003 and 2004 which was rightly considered by the learned primary judge as largely irrelevant so that it can be said he had no prior criminal history for like offences. Johns had one entry in his…

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 Graham

Details

AGLC: R v Graham [2006] QCA 106
Case: [2006] QCA 106
Decision Date: 12 April 2006

CaseChat Overview and Summary

The applicant, Graham, appealed against the sentence imposed upon him following his guilty plea to charges of assault and causing bodily harm to a complainant, along with his co-offenders, Johns and Middleton. The sentencing was presided over in the County Court of Victoria. The appeal was heard in the Court of Appeal, where the applicant argued that the sentence was manifestly excessive given the circumstances of the case and the distinctions in his involvement compared to his co-offenders.

The legal issues before the court included whether the sentence imposed was manifestly excessive, and if there were pertinent distinctions in the involvement of Graham and his co-offenders that warranted a different sentence for Graham. The court had to consider the nature and circumstances of the offence, the culpability of the offender, and the necessity to deter the offender and others from committing similar crimes. The court also needed to determine if the sentence was disproportionate relative to the involvement of the other co-offenders.

The Court of Appeal found that the sentence imposed on Graham was manifestly excessive. The court acknowledged the gravity of the offence but also recognised that Graham's role in the incident was less significant than that of his co-offenders. The court was persuaded that a reduced sentence would be more appropriate given the distinctions in Graham's involvement. As such, the court allowed the appeal against sentence and varied the sentence, ordering that Graham serve 40 days in imprisonment instead of six months and that he be admitted to probation as of 12 April 2006.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed

2. Sentence imposed on applicant varied by ordering that applicant serve 40 days imprisonment instead of six months and that applicant be admitted to probation as at 12 April 2006

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 Graham [2006] QCA 106
PARTIES:	R v GRAHAM, Peter Lindsay (applicant/appellant)
FILE NO/S:	CA No 80 of 2006 DC No 3559 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	12 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2006
JUDGES:	McMurdo P, Keane JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence allowed 2. Sentence imposed on applicant varied by ordering that applicant serve 40 days imprisonment instead of six months and that applicant be admitted to probation as at 12 April 2006
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 GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY - where applicant pleaded guilty together with co-offenders Johns and Middleton to unlawfully assaulting complainant and doing him bodily harm with aggravating circumstances of being in company and armed with a dangerous instrument - where applicant and Johns each sentenced to six months imprisonment and three years probation and Middleton sentenced to three months imprisonment and three years probation – where probation orders also required all three offenders to undergo an appropriate anger management course - where applicant claims that sentence imposed was manifestly excessive in all the circumstances - whether there were pertinent distinctions between involvement of applicant and of his co-offenders which would justify a different sentence imposed on applicant R v Middleton and Johns [2006] QCA 92; CA Nos 58 and 59 of 2006, 31 March 2006, approved
COUNSEL:	R A East for the applicant/appellant C W Heaton for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent