R v Kinersen-Smith & Connor; ex parte

[2009] QCA 153

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kinersen-Smith & Connor; ex parte A-G (Qld) [2009] QCA 153

PARTIES:

R
v
KINERSEN-SMITH, Jarryd
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

R
v
CONNOR, Kayle Perry
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 42 of 2009
CA No 43 of 2009
DC No 309 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2009

JUDGES:

McMurdo P, Holmes JA and A Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondents convicted on pleas of guilty of grievous bodily harm – where each respondent sentenced to two and a half years imprisonment, suspended after six months, for an operational period of three years – where the assault was unprovoked, committed in company and in a public place at night – where respondents pleaded guilty to an ex officio indictment – where respondents were young men with no previous criminal history – where respondents showed remorse and good prospects of rehabilitation – whether, having regard to other grievous bodily harm cases, sentence manifestly inadequate

R v Dillon; ex parte A-G (Qld) [2006] QCA 521, distinguished
R v Fisher [2008] QCA 307, considered
R v Mules [2007] QCA 47, cited
R v O’Grady; ex parte A-G (Qld)[2003] QCA 137, cited
R v Tupou; ex parte A-G (Qld) [2005] QCA 179, distinguished
R v Verheyen[2008] QCA 150, considered

COUNSEL:

A W Moynihan SC, with L Brisick, for the appellant
G M McGuire for the respondent, Kinersen-Smith
A J Glynn SC for the respondent, Connor

SOLICITORS:

Director of Public Prosecutions (Qld) for the appellant
Carew Lawyers for the respondent, Kinersen-Smith
Robertson O’Gorman for the respondent, Connor

1. McMURDO P:  The appeal should be dismissed for the reasons given by Holmes JA.

1. HOLMES JA:  The respondents were convicted of grievous bodily harm on their pleas of guilty to an ex officio indictment.  Each was sentenced to two and a half years imprisonment, suspended after six months, with an operational period of three years.  The Attorney-General appeals against those sentences on the ground that they are manifestly inadequate.

The offence

1. At the time of the offence, which was committed on 4 April 2008, Connor was 18 years old and Kinersen-Smith was 17 years old; there was an age difference of nine months between them.  In the early hours of the morning, the two were walking with a third male along an inner city street.  They saw the complainant, a slightly built young man of 19, sitting on the kerb on the other side of the street, waiting for a lift from a friend.  The two respondents, who are both…