R v Gray - [2011] QCA 362

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gray [2011] QCA 362

PARTIES:

R
v
GRAY, Nicholas Andrew
(applicant)

FILE NO/S:

CA No 166 of 2011
DC No 475 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

13 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Mullins 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 was charged with two counts of assault occasioning bodily harm whilst armed and in company (counts 1 and 2), and one count of child stealing (count 3) – where the applicant pleaded guilty to one count of assault occasioning bodily harm in company – where the applicant pleaded not guilty to counts 2 and 3 – where the applicant was convicted on counts 1 and 2 – where the applicant was found not guilty of the further circumstance of aggravation, that he was armed – where the applicant was sentenced on count 1 to two and a half years’ imprisonment with a parole release date of 15 April 2012, requiring the applicant to serve one-third of the head sentence in custody – where the applicant was sentenced on count 2 to 18 months’ imprisonment – where the applicant contends that the sentences were manifestly excessive – where the applicant had no prior criminal history and had promising rehabilitative prospects – whether the sentences imposed were manifestly excessive

R v Campbell [2009] QCA 95, considered
R v Salmon; ex parte Attorney-General of Queensland [2002] QCA 262, considered

COUNSEL:

J McInnes for the applicant
S P Vasta for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Chesterman JA that leave to appeal against sentence must be refused.

The effective sentence, two and a half years imprisonment with parole after 10 months, was unquestionably a heavy penalty for two offences of assault occasioning bodily harm in company committed by a 21 year old with no prior criminal history and with promising rehabilitative prospects. I also note that references tendered on his behalf supported his counsel's contention at sentence that this behaviour was out of character.

But as Chesterman JA explains, general deterrence was an important factor in this case. The community expects disputes over child custody and access to be determined by the courts in the best interests of the child, not settled by fights in public streets. Here the complainant was set upon by three men, including the applicant. Both the male complainant and the completely innocent two year old child were injured. Fortunately, those injuries were not serious but, as the primary judge identified, they could well…

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 Gray

Details

AGLC: R v Gray [2011] QCA 362
Case: [2011] QCA 362
Decision Date: 13 December 2011

CaseChat Overview and Summary

The case of R v Gray involved the applicant appealing against the sentence imposed by the court. The applicant had been charged with two counts of assault occasioning bodily harm whilst armed and in company, as well as one count of child stealing. The applicant pleaded guilty to one count of assault occasioning bodily harm in company but pleaded not guilty to the other two counts. After a trial, the applicant was convicted on counts 1 and 2 but found not guilty of the further circumstance of aggravation that he was armed. The court sentenced the applicant to two and a half years’ imprisonment on count 1, with a parole release date of 15 April 2012, and to 18 months’ imprisonment on count 2. The applicant argued that the sentences were manifestly excessive, given his lack of criminal history and promising rehabilitative prospects.

The primary legal issue before the court was whether the sentences imposed on the applicant were manifestly excessive. The applicant contended that the sentences were disproportionate to the nature and circumstances of the offences, and did not adequately reflect his personal circumstances, including his lack of prior criminal history and potential for rehabilitation. The court was required to consider whether the sentences imposed were outside the range of reasonable sentences that could be imposed for the offences committed, and whether there were any errors in the sentencing process that warranted interference.

The court considered the arguments put forward by the applicant and examined the circumstances of the case, including the nature and circumstances of the offences, the applicant's criminal history and personal circumstances, and the sentencing principles applicable to the offences. The court concluded that the sentences imposed were within the range of reasonable sentences that could be imposed for the offences committed, and that there were no errors in the sentencing process that warranted interference. The court held that the applicant's arguments did not establish that the sentences were manifestly excessive, and that the sentences reflected an appropriate balance between the need for punishment, deterrence, and rehabilitation. The court therefore refused the applicant's application for leave to appeal against sentence.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 Gray [2011] QCA 362
PARTIES:	R v GRAY, Nicholas Andrew (applicant)
FILE NO/S:	CA No 166 of 2011 DC No 475 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	13 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2011
JUDGES:	Margaret McMurdo P, Chesterman JA and Mullins 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 was charged with two counts of assault occasioning bodily harm whilst armed and in company (counts 1 and 2), and one count of child stealing (count 3) – where the applicant pleaded guilty to one count of assault occasioning bodily harm in company – where the applicant pleaded not guilty to counts 2 and 3 – where the applicant was convicted on counts 1 and 2 – where the applicant was found not guilty of the further circumstance of aggravation, that he was armed – where the applicant was sentenced on count 1 to two and a half years’ imprisonment with a parole release date of 15 April 2012, requiring the applicant to serve one-third of the head sentence in custody – where the applicant was sentenced on count 2 to 18 months’ imprisonment – where the applicant contends that the sentences were manifestly excessive – where the applicant had no prior criminal history and had promising rehabilitative prospects – whether the sentences imposed were manifestly excessive R v Campbell [2009] QCA 95, considered R v Salmon; ex parte Attorney-General of Queensland [2002] QCA 262, considered
COUNSEL:	J McInnes for the applicant S P Vasta for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent