R v Lucas - [2011] QCA 146

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lucas [2011] QCA 146

PARTIES:

R
v
LUCAS, Gayne Terrance
(applicant)

FILE NO/S:

CA No 240 of 2010
DC No 245 of 2010
DC No 1130 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2011

JUDGES:

Muir JA, Margaret Wilson AJA and Fryberg J
Separate reasons for judgment of each member of the court, each concurring as to the order made.

ORDERS:

Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant engaged in gratuitous street violence on two occasions – where applicant pleaded guilty to one count of doing grievous bodily harm, three counts of assault occasioning bodily harm whilst armed, one count of assault occasioning bodily harm whilst in company and two counts of common assault – where applicant sentenced to imprisonment for six years –where pre-sentence custody of 451 days declared time already served – where no parole eligibility date set – where no declaration made that applicant a serious violent offender – where applicant contends sentence manifestly excessive as no parole eligibility date set – whether sentence manifestly excessive

Corrective Services Act 2006 (Qld), s 182, s 184
Penalties and Sentences Act 1992 (Qld), s 160C, s 161B

R v AAF[2008] QCA 235, cited

R v Bryan; ex parte A-G (Qld) [2003] QCA 18, cited
R v Carter[2008] QCA 226, cited
R v Honeysett; ex parte A-G (Qld)[2010] QCA 212, cited
R v Lewis, ex parte A-G (Qld)[2003] QCA 133, cited
R v Thomason; ex parte A-G (Qld)[2011] QCA 9, cited
R v Walsh[2008] QCA 391, cited

COUNSEL:

D R Lynch for the applicant
M B Lehane for the respondent

SOLICITORS:

Ryan & Bosscher Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1] MUIR JA: I agree that the application for leave to appeal against sentence should be dismissed for the reasons given by Margaret Wilson AJA.

[2] MARGARET WILSON AJA: The applicant pleaded guilty to one count of doing grievous bodily harm, three counts of assault occasioning bodily harm whilst armed, one count of assault occasioning bodily harm whilst in company and two counts of common assault. He was given a head sentence of six years. Pre-sentence custody of 451 days was declared time already served under the sentence. No parole eligibility date was set.

[3] The applicant seeks leave to appeal against the sentences on the ground that the failure to set an early parole eligibility date made them manifestly excessive.

[4] The applicant is a young man – 18 years at the time of offending, and 19 years at sentence. He committed these offences in the course of gratuitous street violence on two discrete occasions, 2…

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.

Continue reading R v Lucas

Details

AGLC: R v Lucas [2011] QCA 146
Case: [2011] QCA 146
Decision Date: 24 June 2011

CaseChat Overview and Summary

The applicant, Lucas, was convicted and sentenced to imprisonment for a series of violent street attacks. Lucas pleaded guilty to one count of causing grievous bodily harm, three counts of assault occasioning bodily harm while armed, one count of assault occasioning bodily harm while in company and two counts of common assault. He was sentenced to six years in prison, with 451 days of pre-sentence custody deemed as time already served. No parole eligibility date was set, nor was Lucas declared a serious violent offender. Lucas applied for leave to appeal against the sentence, arguing it was manifestly excessive because no parole eligibility date was set. The court had to determine whether the sentence was manifestly excessive.

The court considered whether the sentence was manifestly excessive or inadequate, focusing on whether the absence of a set parole eligibility date rendered the sentence manifestly excessive. The court noted the seriousness of Lucas’s crimes and the need for general deterrence and denunciation. The absence of a parole eligibility date did not necessarily mean the sentence was manifestly excessive. The court was satisfied the sentence was proportionate to the gravity of the offences and the need to protect the community.

The court dismissed Lucas's application for leave to appeal against the sentence. It found that the absence of a set parole eligibility date did not render the sentence manifestly excessive. The court considered the totality of the circumstances, including the nature and circumstances of the offences, Lucas’s criminal history, and the need for general deterrence and denunciation. The sentence was deemed appropriate and not manifestly excessive.

No further orders were made.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Lucas [2011] QCA 146
PARTIES:	R v LUCAS, Gayne Terrance (applicant)
FILE NO/S:	CA No 240 of 2010 DC No 245 of 2010 DC No 1130 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	24 May 2011
JUDGES:	Muir JA, Margaret Wilson AJA and Fryberg J Separate reasons for judgment of each member of the court, each concurring as to the order made.
ORDERS:	Application for leave to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant engaged in gratuitous street violence on two occasions – where applicant pleaded guilty to one count of doing grievous bodily harm, three counts of assault occasioning bodily harm whilst armed, one count of assault occasioning bodily harm whilst in company and two counts of common assault – where applicant sentenced to imprisonment for six years –where pre-sentence custody of 451 days declared time already served – where no parole eligibility date set – where no declaration made that applicant a serious violent offender – where applicant contends sentence manifestly excessive as no parole eligibility date set – whether sentence manifestly excessive Corrective Services Act 2006 (Qld), s 182, s 184 Penalties and Sentences Act 1992 (Qld), s 160C, s 161B R v AAF[2008] QCA 235, cited R v Bryan; ex parte A-G (Qld) [2003] QCA 18, cited R v Carter[2008] QCA 226, cited R v Honeysett; ex parte A-G (Qld)[2010] QCA 212, cited R v Lewis, ex parte A-G (Qld)[2003] QCA 133, cited R v Thomason; ex parte A-G (Qld)[2011] QCA 9, cited R v Walsh[2008] QCA 391, cited
COUNSEL:	D R Lynch for the applicant M B Lehane for the respondent
SOLICITORS:	Ryan & Bosscher Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent