R v Greig; ex parte - [2000] QCA 276

[2000] QCA 276
COURT OF APPEAL

de JERSEY CJ
THOMAS JA
MULLINS J

[R v Greig & Anor]

CA No 427 of 1999

THE QUEEN

SHANE ALLAN GREIG Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 13/07/2000

JUDGMENT

THE CHIEF JUSTICE: The respondent pleaded guilty in the District Court to the offence of unlawfully doing grievous bodily harm. The learned Judge sentenced him to 12 months' imprisonment to be served by way of intensive correction order and also ordered that he carry out 240 hours' community service.

The Honourable the Attorney-General appeals on the ground that the sentence is manifestly inadequate and as well on the ground that a penalty of that character could not lawfully have been imposed. The latter contention is correct as was in effect conceded.

It follows from McCandless, Court of Appeal 215 of 1999 and other cases in fact, that being a form of imprisonment an intensive correction order cannot be combined with a community based order as was done here. This Court must therefore allow the appeal and determine penalty afresh.

The Attorney-General's counsel submitted that a sentence in the range of three to five years' imprisonment should have been imposed. That range is drawn from Buckingham and others, CA Nos 26, 27 and 28 of 1996 where, in relation to a roughly comparable event, a range of two to four years was suggested at page 3 of Mr Justice Helman's reasons with which the other members of the Court agreed. That was an attack by a number of youths whereas in this case, as will emerge from what I say shortly, only the respondent was involved.

On the other hand, there was here a degree of premeditation which appears to have been absent in Buckingham.

I will revert to the question of appropriate penalty in the context of determining a term of imprisonment because I believe that is what should have been imposed here.

The complainant was a 31-year-old man returning home in the early hours of a morning, having been drinking at a Caloundra nightclub. He met the respondent, a 27-year-old man, previously unknown to him. They went consensually to the respondent's residence, consumed some alcohol and became sexually intimate. The complainant performed an act of oral sex on the respondent for some two to three minutes then, sensing hesitation on the part of the respondent, stopped and departed. The two men parted on the basis that the complainant would visit the respondent the following Sunday night.

The respondent subsequently informed his sister of what had occurred and she apparently told their father. The father, on the material before the Court, challenged the respondent in a somewhat intemperate way about what the respondent had claimed. This appears to have fired up the respondent, pressured by his father, to demonstrate that what had occurred at the unit was, as put by the sentencing Judge, without the respondent's consent and contrary to the respondent's nature and wishes; hence the offence.

On the Sunday evening,…

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 Greig; ex parte

Details

AGLC: R v Greig; ex parte [2000] QCA 276
Case: [2000] QCA 276
Decision Date: 13/07/2000

CaseChat Overview and Summary

The Court of Appeal heard an appeal by the Attorney-General against the sentence imposed on Shane Allan Greig, who had pleaded guilty to the offence of unlawfully doing grievous bodily harm. Greig had been sentenced to 12 months' imprisonment via an intensive correction order and 240 hours' community service. The appeal was based on the grounds that the sentence was manifestly inadequate and that a penalty of that character could not lawfully be imposed. The latter contention was upheld by the court, as it was established that an intensive correction order, being a form of imprisonment, could not be combined with a community-based order as was done here. The court noted that this ruling was consistent with previous cases, including McCandless, Court of Appeal 215 of 1999.

The legal issues before the court were whether the sentence was manifestly inadequate and if the penalty imposed could lawfully be combined with an intensive correction order. The court determined that the original sentence was flawed due to the combination of an intensive correction order and a separate community service, which was inherently inconsistent with the nature of intensive correction orders. The court also considered the appropriate penalty range for the offence, taking into account the nature of the weapon, the number of blows, the premeditation, the blows being directed to the head and chest, the absence of provocation, and the serious injuries inflicted on the complainant.

The court allowed the appeal, set aside the orders made below, and ordered that Greig be imprisoned for a period of two and a half years, suspended after six months for an operational period of three years. The court considered the circumstances of the offence, the nature of the weapon, the number of blows, the premeditation, and the serious injuries inflicted on the complainant, as well as the fact that Greig had already completed seven months of the 12-month intensive correction order program, including an anger management program. The court also took into account the fact that this was an Attorney's appeal and that the intensive correction order program had been partly completed.

The court concluded that the predominant consideration at this stage must be general deterrence, and that almost invariably such an offence should be visited with a term of actual imprisonment. The court considered the appropriate penalty range for the offence, taking into account previous cases such as Buckingham and others, and determined that a period of imprisonment must be served in actual fact. The court agreed with the reasoning of the Chief Justice and the orders proposed, and also noted that not all community-based orders are inconsistent with orders of imprisonment, as demonstrated by the recent decision of this Court in R v. Vincent ex parte Attorney-General [2000] QCA 250. However, the imposition of an additional concurrent community service order seemed to be inherently inconsistent with the nature of intensive correction orders.

Orders