R v Lewis; ex parte A-G (Qld) - [2003] QCA 133

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lewis; ex parte A-G (Qld) [2003] QCA 133

PARTIES:

R
v
LEWIS, Tony Kieren
(appellant/respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

(appellant)

FILE NO/S:

CA No 339 of 2002
CA No 319 of 2002

DC No 2125 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

Appeal against Sentence by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2003

JUDGES:

de Jersey CJ, Williams JA and Atkinson J

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

ORDERS:

1. Allow the Attorney-General’s appeal against sentence
2. Set aside the sentence imposed in the District Court on 17 September 2002
3. Order that the respondent be imprisoned for seven years

4. Declare the respondent to have been convicted of a serious violent offence

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – OTHER IRREGULARITIES – whether appellant permitted to withdraw plea of guilty – where appellant did not qualify plea when arraigned – where appellant did not object or demur when counsel recounted instructions at sentencing

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 – OFFENCES AGAINST THE PERSON – where respondent had extensive criminal history – where respondent persisted in wielding potentially lethal weapon in face of calls to desist – where respondent inflicted severe injuries on complainant – where respondent attempted to evade police – where attack occurred in a public place

Lowndes v R (1999) 195 CLR 665, approved
R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, approved
R v Gadaloff [1999] QCA 286; CA No 24 of 1999, 24 September 1999, approved
R v McKenzie [2000] QCA 324; CA No 353 of 1999, 10 August 2000; (2000) 113 A Crim R 534, approved

R v Melano; ex parte A-G (Qld) [1995] 2 Qd R 186, approved

COUNSEL:

V Supranowicz for the appellant in CA No 339 of 2002 and for the respondent in CA No 319 of 2002

B G Campbell for the respondent in CA No 339 of 2002 and for the appellant in CA No 319 of 2002

SOLICITORS:

Director of Public Prosecutions (Queensland) for the respondent in CA No 339 of 2002 and for the appellant in CA No 319 of 2002

de JERSEY CJ: The appellant pleaded guilty in the District Court on 17 September 2002 to the offence of doing grievous bodily harm. He was sentenced to three-and-a-half years imprisonment, with a recommendation for consideration of post prison community based release after 15 months. The Attorney-General appeals against sentence. The appellant appealed against conviction. The court dismissed…

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.

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Details

Case: [2003] QCA 133
Decision Date: 25 March 2003

CaseChat Overview and Summary

In the case of R v Lewis; ex parte A-G (Qld), the respondent, Lewis, appealed against his conviction and sentence. The Attorney-General of Queensland applied for leave to appeal against the sentence imposed by the District Court. Lewis had pleaded guilty to charges of assault occasioning bodily harm and resisting arrest. The court had sentenced him to five years imprisonment with a non-parole period of three years.

The legal issues before the court were whether Lewis was permitted to withdraw his plea of guilty due to the particular circumstances involving a miscarriage of justice, and whether the sentence was manifestly inadequate given the nature of the crime and Lewis's criminal history. The court considered whether Lewis's plea was properly qualified and whether he had any opportunity to object to the sentence.

The court held that Lewis's plea was not qualified, and he did not object or demur when counsel recounted the instructions at sentencing. The court found that there were no particular circumstances involving a miscarriage of justice that would permit Lewis to withdraw his plea. The court also found that the sentence imposed was manifestly inadequate given the nature of the crime and Lewis's criminal history. The court noted that Lewis had an extensive criminal history, and the attack occurred in a public place where he persisted in wielding a potentially lethal weapon in the face of calls to desist. The court also noted that Lewis inflicted severe injuries on the complainant and attempted to evade police.

The court allowed the Attorney-General's appeal against sentence and set aside the sentence imposed in the District Court on 17 September 2002. The court ordered that Lewis be imprisoned for seven years and declared that he had been convicted of a serious violent offence.

Orders

Orders of the court

1. Allow the Attorney-General’s appeal against sentence

2. Set aside the sentence imposed in the District Court on 17 September 2002

3. Order that the respondent be imprisoned for seven years

4. Declare the respondent to have been convicted of a serious violent offence

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.

CITATION:	R v Lewis; ex parte A-G (Qld) [2003] QCA 133
PARTIES:	R v LEWIS, Tony Kieren (appellant/respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 339 of 2002 CA No 319 of 2002 DC No 2125 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Appeal against Sentence by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	19 March 2003
JUDGES:	de Jersey CJ, Williams JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the Attorney-General’s appeal against sentence 2. Set aside the sentence imposed in the District Court on 17 September 2002 3. Order that the respondent be imprisoned for seven years 4. Declare the respondent to have been convicted of a serious violent offence
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – OTHER IRREGULARITIES – whether appellant permitted to withdraw plea of guilty – where appellant did not qualify plea when arraigned – where appellant did not object or demur when counsel recounted instructions at sentencing 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 – OFFENCES AGAINST THE PERSON – where respondent had extensive criminal history – where respondent persisted in wielding potentially lethal weapon in face of calls to desist – where respondent inflicted severe injuries on complainant – where respondent attempted to evade police – where attack occurred in a public place Lowndes v R (1999) 195 CLR 665, approved R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, approved R v Gadaloff [1999] QCA 286; CA No 24 of 1999, 24 September 1999, approved R v McKenzie [2000] QCA 324; CA No 353 of 1999, 10 August 2000; (2000) 113 A Crim R 534, approved R v Melano; ex parte A-G (Qld) [1995] 2 Qd R 186, approved
COUNSEL:	V Supranowicz for the appellant in CA No 339 of 2002 and for the respondent in CA No 319 of 2002 B G Campbell for the respondent in CA No 339 of 2002 and for the appellant in CA No 319 of 2002
SOLICITORS:	Director of Public Prosecutions (Queensland) for the respondent in CA No 339 of 2002 and for the appellant in CA No 319 of 2002