R v Harvey

[2003] QCA 286

SUPREME COURT OF QUEENSLAND

CITATION:	R v Harvey [2003] QCA 286
PARTIES:	R v HARVEY, Murray Wayne (applicant)
FILE NO/S:	CA No 112 of 2003 DC No 44 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED EX	10 July 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2003
JUDGES:	Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDERS:	1. Allow the application for leave to appeal against sentence 2. Vary the sentence imposed by an order that the sentence of two years imprisonment be suspended after the applicant has served 12 months, with an operational period of three years
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted at trial of doing grievous bodily harm – where applicant contends that sentence imposed should have been partly suspended having regard to his youth and prior good behaviour – where mitigating circumstances in relevant case authority not present in applicant’s case – where changes to Corrective Services Act 2000 (Qld) require applicant to serve two thirds of sentence before he can apply for release on remission or conditional release – whether sentence manifestly excessive in the circumstances
Corrective Services Act 2000 (Qld), s 134
R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, distinguished R v Francisco [1999] QCA 212; CA No 59 of 1999, 8 June 1999, distinguished R v Grimley [2000] QCA 064; CA No 362 of 1999, 14 March 2000, considered
COUNSEL:	The applicant appeared on his own behalf M R Byrne for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: Murray Harvey was convicted in the Maroochydore District Court on 21st March 2003 by the verdict of a jury of having unlawfully done grievous bodily harm to Jason Clarke on 2 September 2001 at Noosa Heads, in Queensland. He was sentenced to two years imprisonment and has applied for leave to appeal against that sentence. He contends the sentence is manifestly excessive because no part of it was suspended having regard to his youth and prior good behaviour.

Mr Harvey was 28 when he committed the offence, and 29 when sentenced. He had no prior convictions and had spent no time in custody. The view of the evidence led at his trial, which is most consistent with his conviction, is that he punched Jason Clarke once, to the jaw.

Mr Clarke had been asked to leave Barney's Bar and Bistro at Noosa Heads, when Mr Harvey was then working as a barman. Mr Clarke had left, perhaps with some assistance from Mr Harvey and wished to re-enter. Mr Clarke was looking elsewhere during the moments in which Mr Harvey stepped towards him and hit…