R v Kirby, Mitchell and Rose; ex parte

Link copied
Case Copied 23 min read

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kirby, Mitchell & Rose; ex parte A-G [2006] QCA 262

PARTIES:

R

v

KIRBY, Peter Lee
(respondent)
MITCHELL, Darryl Noel
(respondent)
ROSE, Jarret David
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA 99 of 2006
CA 100 of 2006
CA 98 of 2006
DC 13 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Charleville

DELIVERED ON:

21 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2006

JUDGES:

Williams JA, Holmes JA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

In each matter, the appeal against sentence by the Attorney-General is dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where each respondent convicted on plea of guilty of assault occasioning bodily harm in company – where each respondent arraigned on indictment which referred to the unlawful assaults of all three respondents – where complainant was off-duty police officer – where complainant was assaulted by a group including people other than the three respondents – whether there was an error of principle made in determining the appropriate sentences – whether the sentences imposed were manifestly inadequate


R v Burnham and McLean [1999] QCA 99, considered
R v Fortnum and Fortnum [2006] QCA 147; CA Nos 65 and 66 of 2006, 5 May 2006, cited
R v Kazakoff, ex parte Attorney-General [1998] QCA 459, considered
R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, [1994] QCA 523 cited
R v Middleton and Johns [2006] QCA 92; CA No 58 and 59 of 2006, 31 March 2006 cited
R v Miller [2004] 1 Qd R 548, [2003] QCA 404, considered
R v Nagy [2004] 1 Qd R 63, [2003] QCA 175, considered
R v Yanner and Yanner, ex parte Attorney-General (1999) 109 A Crim R 109, [1999] QCA 515, cited

COUNSEL:

P F Rutledge for the Attorney-General (Qld)
A J Glynn SC for the respondent Rose
A J Rafter SC for the respondent Kirby
A Moynihan for the respondent Mitchell

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondents

  1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Helman J wherein the issues raised by these appeals have been fully canvassed.

  1. The offences were particularly serious, involving an attack by a number of people on an off-duty policeman.  The serious assaults stemmed from the complainant's attempts to arrest a female who had spat in his face because he was a police officer.  Each of the three respondents had a criminal history, and one of the few factors in their favour was that each pleaded guilty to an ex officio indictment.

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read R v Kirby, Mitchell and Rose; ex parte and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2006] QCA 262
Decision Date

CaseChat Overview and Summary

The case involved three respondents, Kirby, Mitchell, and Rose, who were convicted of assault occasioning bodily harm in company, each having pleaded guilty. The respondents were arraigned on an indictment that referred to the unlawful assaults committed by all three of them, as well as by others who were not part of the trio. The complainant in the case was an off-duty police officer who was assaulted by a group that included the respondents. The Attorney-General appealed against the sentences imposed on the respondents, arguing that they were manifestly inadequate and that there had been an error of principle in determining the appropriate sentences.

The central legal issue for the court was whether the sentences imposed on the respondents were manifestly inadequate, and if there had been an error of principle in their determination. The court had to consider the severity of the crime, the role of each respondent, and the overall context of the assault. The court also needed to assess whether the sentences reflected the seriousness of the offences and the need for general deterrence.

The court found that there was no error of principle in the sentencing and that the sentences were not manifestly inadequate. The judges considered the overall circumstances of the case, including the severity of the assault and the role of each respondent within the group. The court emphasised the importance of proportionality in sentencing and concluded that the sentences imposed were appropriate given the facts of the case. Consequently, the appeal against sentence by the Attorney-General was dismissed in each matter.

Orders

Orders of the court

In each matter, the appeal against sentence by the Attorney-General is dismissed

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.