R v K - [2003] QCA 368

SUPREME COURT OF QUEENSLAND

CITATION:

R v K [2003] QCA 368

PARTIES:

R
v
K
(applicant/appellant)

FILE NO/S:

CA No 168 of 2003
DC No 784 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court

DELIVERED EX TEMPORE ON:

27 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2003

JUDGES:

McMurdo P, Dutney and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against sentence allowed.
2. Substitute imprisonment of five years for the sentence imposed at first instance in relation to Count 1.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – where re-trial ordered by Court of Appeal – where applicant convicted on re-trial – where higher sentence imposed by second trial Judge – whether sentence imposed by first trial Judge was outside the range

R v Craig, CA No 139 of 1990, 8 August 1990, considered
R v Donaghey, CA No 79 of 1985, 19 June 1985, considered
R v Jurss, CA No 456 of 1997, considered
R v Lawrence [2002] QCA 526, CA No 131 of 2002, 2 December 2002, considered
R v Petersen (1999) 2 Qd R 85, followed
R v Smith, CA No 29 of 1997, 10 October 1997, considered
R v Watt, CA No 490 of 1998, 4 June 1999, considered

COUNSEL:

S J Hamlyn-Harris for the applicant
M J Copley for the respondent

SOLICITORS:

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

DUTNEY J: The applicant is a 26 year old woman, 23 at the date of commission of the offences of which she was convicted. On 7 May 2003, following a trial, the applicant was convicted of one count of grievous bodily harm for which a sentence of seven year's imprisonment was imposed, and seven counts of assault occasioning bodily harm. The offences were committed on the applicant's son born on 8 May 2000 on various dates between 11 May 2000 and 30 June 2000.

The applicant had previously pleaded guilty in the Stanthorpe District Court to unlawfully doing grievous bodily harm to her older child on 24 January 1998. On that occasion no conviction was recorded and the applicant was placed on 12 months probation. That offence concerned the applicant's severe shaking of her infant daughter which caused brain damage, retinal haemorrhages and metaphysial fractures. That baby also suffered fractures to both forearms. As part of the probation order the applicant was required to attend formal lessons about the proper care of infants.

The applicant was tried on 20 December 2001 in the District Court at Warwick on an indictment containing, in addition to the counts on the indictment on which her recent trial was conducted, a charge of torture. The applicant was acquitted of torture but convicted of two counts of grievous bodily harm and 11 counts of assault occasioning bodily harm. The applicant received an effective sentence of…

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 K

Details

AGLC: R v K [2003] QCA 368
Case: [2003] QCA 368
Decision Date: 27 August 2003

CaseChat Overview and Summary

The case before the court involved the respondent, K, who had been convicted on re-trial for multiple offences. The initial trial had resulted in a conviction and a sentence that the Court of Appeal later deemed to be outside the appropriate range. A re-trial was ordered, where the respondent was again convicted and subsequently received a higher sentence. The respondent appealed against the sentence imposed at the re-trial, arguing that it was excessive and outside the range of the sentence originally imposed.

The central legal issue before the court was whether the sentence imposed by the first trial judge was indeed outside the appropriate range, and if so, whether the re-trial judge was justified in imposing a higher sentence. The respondent contended that the second sentence was manifestly excessive and not within the permissible range, thus constituting an error of law.

In examining the case, the court considered the principles of sentencing and the discretion of trial judges in imposing sentences. It was determined that the original sentence was indeed outside the appropriate range. Given this finding, the court assessed whether the re-trial judge's imposition of a higher sentence was justified. The court concluded that the second sentence, while higher, was not manifestly excessive and fell within the permissible range. Consequently, the appeal against the sentence was allowed, and a new sentence was substituted.

The court ordered that the respondent's sentence for Count 1 be reduced to imprisonment of five years, reflecting the appropriate range of sentencing for the offence. This decision ensures that the sentence imposed aligns with the principles of proportionality and fairness in criminal sentencing.

Orders

Orders of the court

1. Appeal against sentence allowed.

2. Substitute imprisonment of five years for the sentence imposed at first instance in relation to Count 1.

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 K [2003] QCA 368
PARTIES:	R v K (applicant/appellant)
FILE NO/S:	CA No 168 of 2003 DC No 784 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court
DELIVERED EX TEMPORE ON:	27 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2003
JUDGES:	McMurdo P, Dutney and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against sentence allowed. 2. Substitute imprisonment of five years for the sentence imposed at first instance in relation to Count 1.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – where re-trial ordered by Court of Appeal – where applicant convicted on re-trial – where higher sentence imposed by second trial Judge – whether sentence imposed by first trial Judge was outside the range R v Craig, CA No 139 of 1990, 8 August 1990, considered R v Donaghey, CA No 79 of 1985, 19 June 1985, considered R v Jurss, CA No 456 of 1997, considered R v Lawrence [2002] QCA 526, CA No 131 of 2002, 2 December 2002, considered R v Petersen (1999) 2 Qd R 85, followed R v Smith, CA No 29 of 1997, 10 October 1997, considered R v Watt, CA No 490 of 1998, 4 June 1999, considered
COUNSEL:	S J Hamlyn-Harris for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent