R v Kirby, Mitchell and Rose; ex parte

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.