R v Jones and Bradshaw - [2003] QCA 230

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jones & Bradshaw [2003] QCA 230

PARTIES:

R
v
JONES, Gregory Scott
BRADSHAW, Russell Maitland
(applicants/appellants)

FILE NO/S:

CA No 50 of 2003
CA No 51 of 2003
DC No 470 of 2002

DIVISION:

Court of Appeal - Cairns Circuit

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

27 May 2003

DELIVERED AT:

Cairns

HEARING DATE:

27 May 2003

JUDGES:

Davies JA and Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

In each case:
1. Application for leave to appeal against sentence granted
2. Appeal against sentence allowed only to the extent of altering the sentence imposed by suspending the sentence immediately

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - where applicants pleaded guilty to assault occasioning bodily harm - where applicants sentenced to eight months imprisonment suspended after two months for operational period of 18 months - where offence involved gratuitous violence - where applicants had no relevant criminal history - where applicants expressed remorse - whether sentence imposed was outside the range of a sound sentencing discretion

R v Neivandt [2000] QCA 224; CA No 414 of 1999, 9 June 2000, considered

R v Sheret [2002] QCA 162; CA No 308 of 2001, 10 May 2002, considered

COUNSEL:

J D Henry (Cairns) for applicants/appellants
D R MacKenzie (Cairns) for respondent

SOLICITORS:

Legal Aid Queensland for applicants/appellants
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: These are applications for leave to appeal against a sentence by two applicants who pleaded guilty in the District Court on 17 March this year, in each case to assault occasioning bodily harm in company. That is, in company with one another. I mentioned that specifically because there was a third offender, Valenti, who was charged with grievous bodily harm in respect of the same complainant, who went to trial and was ultimately convicted after trial and sentenced in respect of that offence. The offences occurred on 8 January 2002.

The sentence which was imposed on 19 March 2003 at the end of Valenti's trial was, in the case of each of these applicants, eight months' imprisonment suspended after a period of two months for an operational period of 18 months. There was a declaration of presentence custody of one day between 18 February and 19 February 2003.

The applicants were both young men. Jones was about 22 at the time of the offence, and Bradshaw was 23. The complainant whom they assaulted was aged about 29. Neither of the applicants has any relevant criminal history. Each had been convicted of minor offences for which they had been fined, but there was nothing particularly relevant.

There had apparently been some ill-will between the complainant and Valenti resulting from an earlier episode, and Bradshaw, one of the present applicants, had been with…

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 Jones and Bradshaw

Details

AGLC: R v Jones & Bradshaw [2003] QCA 230
Case: [2003] QCA 230
Decision Date: 27 May 2003

CaseChat Overview and Summary

In this case, the applicants, Jones and Bradshaw, faced the court in relation to an assault occasioning bodily harm. Both pleaded guilty to their charges and were sentenced to eight months imprisonment, suspended after serving two months, for an operational period of 18 months. The applicants sought leave to appeal against their sentences, arguing that the sentences imposed were outside the range of a sound sentencing discretion.

The legal issues that the court was required to decide included whether the sentence imposed was appropriate and whether the sentencing judge had taken into account all relevant factors. The applicants argued that the gratuitous nature of the violence and their lack of a criminal history should have resulted in a lesser sentence. Additionally, they claimed that their expression of remorse should have been given more weight by the sentencing judge.

The court considered the sentencing principles and examined whether the sentence imposed was outside the range of a sound sentencing discretion. The court noted that while the offence involved gratuitous violence, the applicants had no relevant criminal history and had expressed remorse. The court held that the sentence imposed was indeed outside the range of a sound sentencing discretion. The court acknowledged that the gratuitous nature of the violence was a significant factor but also emphasised the importance of the applicants' lack of criminal history and their expression of remorse. The court concluded that the sentence imposed was too severe given these mitigating factors.

The court granted the applicants' applications for leave to appeal against their sentences and allowed the appeal only to the extent of altering the sentence imposed by suspending the sentence immediately. This meant that the applicants would not have to serve any time in prison, but they would remain on probation for the operational period of 18 months.

Orders

Orders of the court

In each case:

1. Application for leave to appeal against sentence granted

2. Appeal against sentence allowed only to the extent of altering the sentence imposed by suspending the sentence immediately

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 Jones & Bradshaw [2003] QCA 230
PARTIES:	R v JONES, Gregory Scott BRADSHAW, Russell Maitland (applicants/appellants)
FILE NO/S:	CA No 50 of 2003 CA No 51 of 2003 DC No 470 of 2002
DIVISION:	Court of Appeal - Cairns Circuit
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX TEMPORE ON:	27 May 2003
DELIVERED AT:	Cairns
HEARING DATE:	27 May 2003
JUDGES:	Davies JA and Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	In each case: 1. Application for leave to appeal against sentence granted 2. Appeal against sentence allowed only to the extent of altering the sentence imposed by suspending the sentence immediately
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - where applicants pleaded guilty to assault occasioning bodily harm - where applicants sentenced to eight months imprisonment suspended after two months for operational period of 18 months - where offence involved gratuitous violence - where applicants had no relevant criminal history - where applicants expressed remorse - whether sentence imposed was outside the range of a sound sentencing discretion R v Neivandt [2000] QCA 224; CA No 414 of 1999, 9 June 2000, considered R v Sheret [2002] QCA 162; CA No 308 of 2001, 10 May 2002, considered
COUNSEL:	J D Henry (Cairns) for applicants/appellants D R MacKenzie (Cairns) for respondent
SOLICITORS:	Legal Aid Queensland for applicants/appellants Director of Public Prosecutions (Queensland) for respondent