R v Kutchen

[2004] QCA 471

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kutchen [2004] QCA 471

PARTIES:

R
v
KUTCHEN, Warwick John

(applicant)

FILE NO/S:

CA No 361 of 2004
DC No 1615 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence and Conviction)

ORIGINATING
 COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

2 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2004

JUDGES:

McMurdo P, Mackenzie and Philippides JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for extension of time within which to appeal against sentence dismissed

2.   Application for extension of time within which to appeal against conviction adjourned to a date to be fixed

3.   Transcript of counsels’ addresses, if available, to be included in the record of proceedings

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where applicant sentenced to 4 years imprisonment for grievous bodily harm – where complainant suffered significant brain injury – whether sentence manifestly excessive

COUNSEL:

J Cremin for the applicant

B G Campbell for the respondent

SOLICITORS:

John K Harris Solicitor for the applicant
Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES J:  This an application for extension of time in which to appeal against conviction and for leave to appeal against sentence. 

The applicant was convicted on 12 August 2004 of the offence of unlawfully doing grievous bodily harm and sentenced to 4 years imprisonment.

As to the application for extension of time in which to appeal against conviction, the applicant had originally intended and understood that this matter was to be heard in March next year which would have permitted a full record to have been prepared and further expert medical evidence to have been obtained.

It would appear that on the present material the application would not be successful; however I consider that it is appropriate that an adjournment be granted in order for the material required to be properly prepared.

As to the application for an extension of time to appeal against sentence, I would refuse that application as I do not consider that that applicant has any prospects of success.  The injuries sustained by the complainant were serious and have resulted in significant permanent consequences.  She sustained permanent brain injury involving the loss of smell and taste. 

In imposing sentence the learned sentencing Judge took into account the fact that the applicant had no prior convictions, that he had a previous good character and that he was now settled into a stable family lifestyle, having married.  Mention was made of an error in his Honour's finding that the complainant was struck by a statue but we do not have the full record in order to come to a conclusion in respect of that.

Nevertheless, on any view of the case, given the seriousness of the offence and the consequences for the complainant a sentence of four years imprisonment imposed after trial was well within the appropriate sentencing range and supported by authorities such as Craig, CA number 100 of 1995. 

Reference was made on behalf of the applicant to Steindl where a term of three years imprisonment was imposed but that was clearly a much less serious case.  Indeed that case also supports the sentence imposed.

I would therefore dismiss the application insofar as it concerns the application for an extension of time to appeal against sentence.

THE PRESIDENT:  I agree.

MACKENZIE J:  I agree.
McMURDO P:  The orders are the application for an extension of time to appeal against conviction is adjourned to a date to be fixed.  I note that counsel for the applicant had indicated he would be ready to proceed in March next year.  The application for an extension of time for leave to appeal against sentence is refused.

MR CAMPBELL:  If your Honours were intending that a full record be made available for that hearing, perhaps if I can suggest that the addresses be included in that.  I'm not sure the addresses were, in fact, recorded, I've just spoken to trial counsel‑‑‑‑‑

THE PRESIDENT:  Well, if they weren't recorded they won't be included.

MR CAMPBELL:  Yes, but if they were perhaps if they could be - if there could be an order that they be included?

MACKENZIE J:  Yes, I think it's particularly important in a case like this.

MR CAMPBELL:  Thank you, your Honours.

THE PRESIDENT:  Yes.  I make that order, that when a record is prepared, if there is a transcript of counsel's addresses they also should be included in the record.

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