R v Lowe

[2001] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lowe [2001] QCA 270

PARTIES:

R
v
LOWE, Peter Anthony
(applicant/appellant)

FILE NO/S:

CA No 350 of 2000
DC No 64 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction and sentence

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

20 July 2001

DELIVERED AT:

Brisbane

HEARING DATE:

25 June 2001

JUDGES:

McPherson JA, Thomas JA, Williams JA

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

ORDER:

1.   Appeal against conviction dismissed.

2.   Application and appeal against sentence allowed reducing the term of imprisonment from 8 years to 6 years

3.   Declare that the appellant was in pre-sentence custody for a period of 240 days, which is to count as time served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE OF JUSTICE – MISDIRECTION AND NON-DIRECTION -  appellant convicted of doing grievous bodily harm with intent - whether a formal accomplice warning was necessary – whether accomplice warning given in relation to another witness was adequate 

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – GENERALLY – whether in summing up the trial judge treated Crown submissions more favourably than defence submissions

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where appellant was aged 30 with no prior convictions for violence – where trial judge attributed more of the complainant’s injuries to the appellant than was justified – whether sentence of 8 years manifestly excessive

Criminal Code s 632

Brown CA No 155 of 1996, 26 July 1996, considered
Pollitt v The Queen (1992) 174 CLR 558, cited

R v Beer [2000] QCA 193; CA No 404 of 1999, 26 May 2000, considered

R v Button [1992] 1 Qd R 552, considered

R v Dempsey [2001] QCA 141; CA No 356 of 2000, 17 April 2001, considered

R v Stewart [1993] 2 Qd R 322, applied

COUNSEL:

C Callaghan (sol.) for the applicant/appellant
P Rutledge for the respondent

SOLICITORS:

Boe & Callaghan for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: I agree with what Williams JA has written in his reasons on this appeal and application.

1. The critical evidence was that of Mr Kelly, who was quite independent of the others at the football ground.  He saw a man belabouring the complainant with a piece of 4 x 2 timber, and another man kicking him.  The evidence of Dawson at the trial supported the conclusion that…