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R v Holland

R v Holland

Case [2008] QCA 200 25 July 2008

Jurisdiction

Appeal

Unreasonable or Insupportable Verdict

Manifestly Excessive Sentence

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Holland [2008] QCA 200

PARTIES:

R
v
HOLLAND, Derry John
(appellant)

FILE NO/S:

CA No 360 of 2007
DC No 1340 of 2003
DC No 3338 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2008

JUDGES:

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

ORDER:

Appeal against conviction dismissed1.

Application for leave to appeal against sentence refused2.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MATTERS CONNECTED WITH CONDUCT OF DEFENCE – LEGAL REPRESENTATION – where the appellant was represented with the assistance of Legal Aid at the trial – where the appellant was advised on the morning of the trial that a new barrister had been engaged to represent him – whether there was evidence of any misconduct by counsel during the course of the trial – whether the appellant received a fair trial

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – whether, on the whole of the evidence, the jury were reasonably entitled to be satisfied of the appellant's guilt beyond reasonable doubt

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – where the appellant was charged with doing grievous bodily harm with intent to do grievous bodily harm – where when taking the verdict from the jury and administering the allocutus the associate described the charge in question as "doing a malicious act" – whether the verdict and conviction were affected by irregularity

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 – where the appellant was sentenced to five years imprisonment for the offence of doing grievous bodily harm with intent to do grievous bodily harm – whether the sentence imposed was manifestly excessive

Criminal Code Act 1899 (Qld), s 317, s 320, s 648
Criminal Practice Rules 1999 (Qld), r 51, Sch 2

Kotsis v Kotsis (1970) 122 CLR 69; [1970] HCA 61, considered
Lilliecrapv The King (1905) 2 CLR 681; [1905] HCA 30, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
R v Brand[2006] QCA 525, cited
R v Clarke [2008] 2 All ER 665; [2008] UK HL 8, considered
R v Conway (2005) 157 A Crim R 474; [2005] QCA 194, cited
R v Dillon; ex parte A-G (Qld)[2006] QCA 521, cited
R v Livingston (No 2) [1933] St R Qd 175, considered
R v Lowe[2001] QCA 270, applied
R v Lowrie & Ross [2000] 2 Qd R 529; [1999] QCA 305, cited
R v Mitchell

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 Holland

Details

AGLC: R v Holland [2008] QCA 200
Case: [2008] QCA 200
Decision Date: 25 July 2008

CaseChat Overview and Summary

The case of R v Holland involved the appellant appealing against his conviction and sentence for grievous bodily harm with intent. The appellant had been represented with Legal Aid assistance during the trial and was informed on the morning of the trial that a new barrister would be representing him. The central issues in the appeal were whether the appellant received a fair trial given the late change in representation, whether the verdict was unreasonable or insupportable, and if the sentence imposed was manifestly excessive.

The court examined the circumstances of the change in legal representation and found no evidence of misconduct by counsel. It was determined that the appellant had not been prejudiced by the late change, and thus had received a fair trial. The court further assessed the sufficiency of the evidence to support the verdict and concluded that the jury was reasonably entitled to be satisfied of the appellant's guilt beyond reasonable doubt. Additionally, the court found that the description of the charge by the associate during the verdict did not affect the verdict or conviction.

The court also reviewed the sentence of five years imprisonment, concluding it was not manifestly excessive given the nature of the offence. The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused. The final orders were that the appeal against the conviction was dismissed and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Appeal against conviction dismissed1.

Application for leave to appeal against sentence refused2.

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.

Citations

AGLC Citation

R v Holland [2008] QCA 200

Most Recent Citation

DPP v Nguyen [2009] VSCA 147

Cases citing this decision · 17 of 17 shown

R v Pain
[2022] QCA 233 Para 8

…The offender in R v Holland [2008] QCA 200 was convicted after trial of doing grievous bodily harm with intent. The victim’s jaw was broken in multiple places and required two rounds of surgery. The assault was provoked by the complainant, but the offender’s response was “grossly excessive”. The offender had kick…
R v MCZ
[2018] QCA 240

…ubmitted that manifest excess in the applicant’s sentence was demonstrated by R v Bryan; Ex parte Attorney-General (Qld) [2003] QCA 18, R v Holland [2008] QCA 200, R v BCF [2012] QCA 87, and R v Gatti [2018] QCA 98. Gatti is of no assistance in this case, if only because the Court’s decision in that case to refus…
R v Tom
[2018] QCA 218 Para 11

…In addition to the cases to which reference was made below, counsel drew the Court’s attention to R v Holland [2008] QCA 200, R v Mitchell [2006] QCA 240 and R v Lowe [2001] QCA 270. Ultimately little is to be gained by a close examination of those and other cases, because these observations by Williams JA in R v…
R v Kussrow
[2018] QCA 195 Para 27

….[25] It was submitted that they demonstrate that the applicant’s sentence is manifestly excessive. [22][2017] 2 Qd R 586. [23][2011] QCA 383. [24][2008] QCA 200. [25][2001] QCA 270.…
R v Gatti
[2018] QCA 98 Para 1

…ity date of 28 May 2018). [1][2016] QCA 333. [2][2010] QCA 266. [3][2011] QCA 383. [4][2015] QCA 129. [5][2008] QCA 317. [6][2006] QCA 25. [7][2008] QCA 200 at [63] and [64]. Consideration…
R v Compton
[2017] QCA 55 Para 32

…ely inflicted by the use of a weapon by a mature offender with a record of personal violence is between four and seven years imprisonment.” [13][2008] QCA 200 at [63].…
R v Piper
[2015] QCA 129 Para 37

…R v Douglas [11] and R v Mitchell .[12] In the first two of those cases, the assault had also occurred against a background of some provocation. [10][2008] QCA 200. [11][2004] QCA 1. [12][2006] QCA 240.…
R v Keen
[2015] QCA 97 Para 20

…her chest. Bystanders intervened and ended the assault. This Court refused an application for leave to appeal against sentence. [1][1997] QCA 94. [2][2008] QCA 200. [3][2011] QCA 383.…
R v Edwards
[2012] QCA 117 Para 1

…hould have been sentenced. The sentence imposed at first instance, of eight years imprisonment, was reduced to six years. [6][2001] QCA 270. [7][2008] QCA 200.…
R v BCF
[2012] QCA 87 Para 1

…left with no feeling in the area of his lower lip and lower jaw. The appellant had a prior conviction for assault occasioning bodily harm. [9][2008] QCA 200.…
R v Neal
[2012] QCA 12 Para 1

…[2003] QCA 137; R v Henriott [2004] QCA 346; R v Berryman (2005) 159 A Crim R 65; R v O’Dell [2006] QCA 8; R v Brand [2006] QCA 525; R v Holland [2008] QCA 200; R v Bailey [2009] QCA 251. Before discussing those decisions it is useful to mention some assumptions which underlay the applicant’s argument about thei…
R v Amery
[2011] QCA 383 Para 1

…Counsel for the applicant relied on R v Holland [2008] QCA 200, but that was a less serious example of the offence than the applicant’s offending. The offender in Holland was convicted of doing grievous bodily harm with intent to do grievous bodily harm after trial. The offence was committed during the operationa…
R v Honeysett; ex parte
[2010] QCA 212 Para 1

…Mr Lynch relied on a number of cases, Perussich [2001] QCA 557, Mitchell [2006] QCA 240, Beer [2000] QCA 193, Laing [2008] QCA 317, Holland [2008] QCA 200, and Granato [2006] QCA 25, for a contention that “a sentence in the range of 5-7 years is appropriate with an accompanying early recommendation for parole”. I…
R v Woodman
[2010] QCA 162

…[12][2008] QCA 200.…
R v Woodman
[2009] QCA 197

…e judge gave too much weight to the applicant's prior criminal history Penalties and Sentences Act 1992 (Qld), s 9(4) R v Holland [2008] QCA 200, discussed R v Lyon [2006] QCA 146, discussed R v Mitchell [2006] QCA 240, discussed R v Wentworth [1996] QCA 534, discussed R v Williams [2002] QCA 142, discussed Veen…
DPP v Nguyen
[2009] VSCA 147

…[78] R v Shillingsworth & Cosh [1985] 2 Qd R 537, 543; R v Lowrie & Ross [2000] QCA 405; R v Holland [2008] QCA 200 and R v SBJ [2009] QCA 100.…
R v SBJ
[2009] QCA 100 Para 1

…h [1985] 1 Qd R 537 per G N Williams J (as his Honour then was) at 543. [19][2000] 2 Qd R 529. [20][2000] 2 Qd R 529 at 539. See also R v Holland [2008] QCA 200 per Keane JA at [48].…

View all 17 citing cases →

Cases cited in this decision · 12 of 12 shown

R v East
[2008] QCA 144 Para 1

…edings are one of the safeguards of justice according to law." [6]See Gummow, "Form or substance?" (2008) 30 Aust Bar Review 229 at 231. See R v East [2008] QCA 144 at [103] per Fryberg J. [7](1970) 122 CLR 69 at 90.…
R v Brand
[2006] QCA 525 Para 1

…ly excessive. The application for leave to appeal against sentence should be refused. [2]See R v Dillon; ex parte A-G (Qld) [2006] QCA 521; R v Brand [2006] QCA 525.…
R v Dillon; ex parte A-G (Qld)
[2006] QCA 521 Para 1

…this case was not manifestly excessive. The application for leave to appeal against sentence should be refused. [2]See R v Dillon; ex parte A-G (Qld) [2006] QCA 521; R v Brand [2006] QCA 525.…
R v Mitchell
[2006] QCA 240 Para 1

…as a weapon for the purposes of establishing that this range of sentences was applicable to the appellant's offending in this case. [12] R v Mitchell [2006] QCA 240; R v Lowe [2001] QCA 270.…
R v Conway
[2005] QCA 194 Para 1

…o do so, and made its intention manifestly by its verdict. Accordingly, there was no irregularity attending the jury's verdict.[11] [11]Cf R v Conway [2005] QCA 194 esp at [40] – [43].…
R v Lowe
[2001] QCA 270 Para 1

…ses of establishing that this range of sentences was applicable to the appellant's offending in this case. [12] R v Mitchell [2006] QCA 240; R v Lowe [2001] QCA 270.…
R v Lowrie and Ross
[1999] QCA 305

…[1933] St R Qd 175, considered R v Lowe [2001] QCA 270, applied R v Lowrie & Ross [2000] 2 Qd R 529; [1999] QCA 305, cited R v Mitchell [2006] QCA 240, applied R v Shillingsworth [1985] 1 Qd R 537, cited R v Sorby [1976] 2 NZLR 516, applied COUNSEL: The appellant appeared on his own behalf T A Fuller for the res…
M v the Queen
[1994] HCA 63

…ered Lilliecrap v The King (1905) 2 CLR 681; [1905] HCA 30, applied M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied R v Brand [2006] QCA 525, cited R v Clarke [2008] 2 All ER 665; [2008] UK HL 8, considered R v Conway (2005) 157 A Crim R 474; [2005] QCA 194, cited R v Dillon; ex parte A-G (Qld) [2006] Q…
Kotsis v Kotsis
[1970] HCA 61

…317, s 320, s 648 Criminal Practice Rules 1999 (Qld), r 51, Sch 2 Kotsis v Kotsis (1970) 122 CLR 69; [1970] HCA 61, considered Lilliecrap v The King (1905) 2 CLR 681; [1905] HCA 30, applied M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied R v Brand [2006] QCA 525, cited R v Clarke [2008] 2 All ER 665; […
Lilliecrap v The King
[1905] HCA 30

…Kotsis v Kotsis (1970) 122 CLR 69; [1970] HCA 61, considered Lilliecrap v The King (1905) 2 CLR 681; [1905] HCA 30, applied M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied R v Brand [2006] QCA 525, cited R v Clarke [2008] 2 All ER 665; [2008] UK HL 8, considered R v Conway (2005) 157 A Crim R 474; [200…
[1971] AC 481
[1971] AC 481

…of the word probably leads to some confusion as to when an accused person can be regarded as having been convicted: see S v Recorder of Manchester [1971] AC 481, 489 … Nevertheless, once accepted by the judge it is that verdict that amounts to a conviction and the case is then beyond further examination or revi…
[1976] 2 NZLR 516
[1976] 2 NZLR 516

…305, cited R v Mitchell [2006] QCA 240, applied R v Shillingsworth [1985] 1 Qd R 537, cited R v Sorby [1976] 2 NZLR 516, applied COUNSEL: The appellant appeared on his own behalf T A Fuller for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the re…

Legislation cited in this decision · 3

Criminal Practice Rules 1999 (Qld)
51 2 mentions (from Para 1)
Criminal Code Act 1899 (Qld)
317 1 mention
Evidence Act 1977 (Qld)
132C(3) 1 mention

CITATION:	R v Holland [2008] QCA 200
PARTIES:	R v HOLLAND, Derry John (appellant)
FILE NO/S:	CA No 360 of 2007 DC No 1340 of 2003 DC No 3338 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	13 June 2008
JUDGES:	McMurdo P, Keane JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed1. Application for leave to appeal against sentence refused2.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MATTERS CONNECTED WITH CONDUCT OF DEFENCE – LEGAL REPRESENTATION – where the appellant was represented with the assistance of Legal Aid at the trial – where the appellant was advised on the morning of the trial that a new barrister had been engaged to represent him – whether there was evidence of any misconduct by counsel during the course of the trial – whether the appellant received a fair trial CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – whether, on the whole of the evidence, the jury were reasonably entitled to be satisfied of the appellant's guilt beyond reasonable doubt CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – where the appellant was charged with doing grievous bodily harm with intent to do grievous bodily harm – where when taking the verdict from the jury and administering the allocutus the associate described the charge in question as "doing a malicious act" – whether the verdict and conviction were affected by irregularity 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 – where the appellant was sentenced to five years imprisonment for the offence of doing grievous bodily harm with intent to do grievous bodily harm – whether the sentence imposed was manifestly excessive Criminal Code Act 1899 (Qld), s 317, s 320, s 648 Criminal Practice Rules 1999 (Qld), r 51, Sch 2 Kotsis v Kotsis (1970) 122 CLR 69; [1970] HCA 61, considered Lilliecrapv The King (1905) 2 CLR 681; [1905] HCA 30, applied M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied R v Brand[2006] QCA 525, cited R v Clarke [2008] 2 All ER 665; [2008] UK HL 8, considered R v Conway (2005) 157 A Crim R 474; [2005] QCA 194, cited R v Dillon; ex parte A-G (Qld)[2006] QCA 521, cited R v Livingston (No 2) [1933] St R Qd 175, considered R v Lowe[2001] QCA 270, applied R v Lowrie & Ross [2000] 2 Qd R 529; [1999] QCA 305, cited R v Mitchell