R v Lyon

Case [2006] QCA 146 5 May 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Lyon [2006] QCA 146

PARTIES:

R
v
LYON, John Andrew
(applicant)

FILE NO/S:

CA No 14 of 2006
SC No 117 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2006

JUDGES:

Jerrard JA, Fryberg and Douglas JJ
Separate reasons for judgment of each member of the Court, Jerrard JA and Douglas J concurring as to the orders made, Fryberg J dissenting

ORDER:

(1) Allow application for leave to appeal against sentence
(2) Grant appeal
(3) Substitute a sentence of seven years imprisonment for the nine years imposed, and maintain the declaration

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant was convicted of entering a dwelling with intent to commit an indictable offence with circumstances of aggravation that he entered the building by means of a break, was armed with an offensive weapon and he used actual violence – where applicant was convicted of unlawfully wounding his ex-wife with intent to do grievous bodily harm – where applicant was acquitted of the charge of attempted murder – where applicant was sentenced to nine years imprisonment on the count of unlawful wounding with intent to do grievous bodily harm and to a concurrent term of five years imprisonment for the burglary with circumstances of aggravation – where the conviction for wounding with intent to do grievous bodily harm was declared a serious violent offence – whether sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – whether the applicant, who made no admissions about either specific matters nor a plea of guilty in the jury’s presence, was entitled to some reduction of his sentence on the basis that he had made three written offers to plead guilty to burglary and wounding with intent to do grievous bodily harm if the Crown dropped the attempted murder charge

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where a serious violent offender declaration is a matter of discretion, is the sentencing court constrained to a sentence at the lower end of an appropriate range by terms

Penalties and Sentences Act 1992 (Qld), s 161A, s 188

R v Ambrose [1995] QCA 122; CA No 5 of 1995, 21 March 1995, considered
R v Anderson [2004] QCA 287; CA No 64 of 2004, 6 August 2004, considered
R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, CA No 4 1999, 8 June 1999, considered
R v Clark; ex parte A-G [1999]…

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 Lyon

Details

AGLC: R v Lyon [2006] QCA 146
Case: [2006] QCA 146
Decision Date: 5 May 2006

CaseChat Overview and Summary

The appeal was lodged by the convicted individual against the sentence imposed by the court. The appellant had been found guilty of entering a dwelling with intent to commit an indictable offence, with aggravating circumstances that he had broken in, was armed with an offensive weapon, and used actual violence. He was also convicted of unlawfully wounding his ex-wife with intent to cause grievous bodily harm, but was acquitted of the charge of attempted murder. The appellant was sentenced to nine years' imprisonment for the unlawful wounding charge, and a concurrent term of five years for the burglary with aggravating circumstances. The court declared the conviction for wounding with intent to do grievous bodily harm to be a serious violent offence.

The appellant contended that his sentence was manifestly excessive, arguing that he should receive some reduction in his sentence for making three written offers to plead guilty to the charges of burglary and wounding with intent to do grievous bodily harm if the attempted murder charge was dropped. The appellant also argued that, despite the serious violent offender declaration, the sentencing court was not constrained to a sentence at the lower end of an appropriate range. The court had to determine whether the sentence imposed was manifestly excessive and whether the appellant was entitled to a reduction in sentence for his offers to plead guilty.

The court held that the appellant's sentence was manifestly excessive and that he was entitled to some reduction in his sentence for his offers to plead guilty. The court noted that the appellant's offers to plead guilty demonstrated a willingness to accept responsibility for his actions and that this should be taken into account when determining the appropriate sentence. The court also held that, while a serious violent offender declaration was a matter of discretion, the sentencing court was not constrained to a sentence at the lower end of an appropriate range. The court substituted a sentence of seven years imprisonment for the nine years imposed, and maintained the declaration.

The court allowed the application for leave to appeal against sentence, granted the appeal, and substituted a sentence of seven years imprisonment for the nine years imposed, and maintained the declaration.

Orders

Orders of the court

(1) Allow application for leave to appeal against sentence

(2) Grant appeal

(3) Substitute a sentence of seven years imprisonment for the nine years imposed, and maintain the declaration

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.

Citations

AGLC Citation

R v Lyon [2006] QCA 146

Most Recent Citation

R v Mitchell [2006] QCA 240

Cases citing this decision · 15 of 15 shown

R v Gordon
[2024] QCA 16 Para 4

…The applicant relies on the approach in R v Lyon [2006] QCA 146 at [27]-[28] to the effect that an offender’s offer to plead guilty to the offence of which he was subsequently convicted is a relevant matter either as supportive of the offender’s cooperation with the administration of justice or as demonstration o…
R v SEB
[2023] QCA 69 Para 10

…nterruption to an offender’s rehabilitation that immigration detention beyond a fixed release date would entail”.[4] [1] R v Lyon [2006] QCA 146; R v Oakes [2012] QCA 336 and R v Gatti [2018] QCA 98. [2][2018] 3 Qd R 420. [3] R v GBD [2018] QCA 340, [52](d), summarising the effect of Norris . [4] GBD , above, [52…
R v Liddy; Ex parte
[2018] QCA 254 Para 1

…tencing discretion. Such a conclusion is clearly consistent with the policy enunciated in s 13 of the Penalties and Sentences Act 1992 .” [24][2006] QCA 146. [25][2003] QCA 367. [26][1995] 1 Qd R 673.…
R v Dean; R v Selmes; R v Phillips
[2018] QCA 124 Para 15

…n [96] did not consider these matters as “terribly weighty”.[97] [93]RB 82, line 8. [94]RB 120. [95]RB 82, line 34. [96][2006] QCA 146. [97]RB 80, lines 1-5.…
R v Zefi
[2017] SASCFC 121 Para 8

…ing); Hooper v The Queen (2003) 27 WAR 264 at [34] (Steytler P); R v Wiggins [2003] QCA 367 (McMurdo P, Dutney and Philippides JJ agreeing); R v Lyon [2006] QCA 146 at [27]-[28] (Jerrard JA, Douglas J agreeing); DF v The Queen [2006] NTCCA 13 at [17] (Riley J, Martin (BR) CJ and Angel J agreeing); Spooner v Weste…
R v Cobb
[2016] QCA 333 Para 11

…circumstance in that the applicant had thereby “sought to assist the course of justice”. [1][1999] QCA 438 at [41]. [2][2006] QCA 146. [3][1995] 1 Qd R 673, 673. [4][2003] QCA 367.…
R v Pryce
[2016] QCA 43 Para 10

…k with the machete was more deliberate and more dangerous still than in the present case. And that offender did not plead guilty. [13][2006] QCA 146. [14][2002] QCA 34.…
R v Piper
[2015] QCA 129 Para 5

…3] R v Amery ,[4] and R v Laing .[5] There is no present need to set out the full circumstances of each, but the following can be noted. [3] R v Lyon [2006] QCA 146. ( Lyon ) [4] R v Amery [2011] QCA 383. ( Amery ) [5] R v Laing [2008] QCA 317. ( Laing )…
The State of Western Australia v Auckram
[2013] WASCA 256

…14 SASR 206 R v Hansen [2011] SASCFC 10; (2011) 206 A Crim R 54 R v Jones [2010] SASFC 58; (2010) 108 SASR 479 R v Lawrence (1980) 32 ALR 72 R v Lyon [2006] QCA 146 R v Marshall [1994] QCA 161; (1995) 1 Qd R 673 R v McDonald [2000] WASCA 336 R v Nguyen [2013] NSWCCA 195 R v Oinonen [1999] NSWCCA 310 R v Smith (19…
R v Oakes
[2012] QCA 336 Para 1

…laration was made. On appeal against sentence, a sentence of seven years was substituted for the nine years and the declaration was maintained. [14][2006] QCA 146.…
R v Hart
[2012] QCA 38 Para 1

…In his later outline, the applicant referred additionally to R v Melissant [2003] QCA 122, R v Lyon [2006] QCA 146, R v Wilson [2001] QCA 215, R v Anderson [2004] QCA 287 and R v Woodman [2009] QCA 197. He has sought to draw detailed comparison and contrast between the circumstances of those cases and his own.…
Commissioner of Taxation v Byrne Hotels Qld Pty Ltd
[2011] FCAFC 127 Para 6

…iner was made, that is, bringing the contracts of sale to completion (at [41]). The Tribunal relied on Legal Services Commissioner v Baker (No 2) [2006] QCA 146, in which McPherson JA pointed out that the right of a solicitor to recover costs and fees for work done before termination of the retainer or contract r…
R v Woodman
[2010] QCA 162

…[10][2006] QCA 146.…
R v Woodman
[2009] QCA 197

…applicant's prior criminal history Penalties and Sentences Act 1992 (Qld), s 9(4) R v Holland [2008] QCA 200, discussed R v Lyon [2006] QCA 146, discussed R v Mitchell [2006] QCA 240, discussed R v Wentworth [1996] QCA 534, discussed R v Williams [2002] QCA 142, discussed Veen v The Queen (No 2) (1988) 164 CLR 4…
R v Mitchell
[2006] QCA 240 Para 1

…In addition, the applicant referred to R v Lyon [2006] QCA 146, where a sentence of nine years imprisonment with a declaration imposed after trial on a count of unlawful wounding with intent to do grievous bodily harm was challenged as manifestly excessive (a concurrent term of five years for burglary with a circ…

View all 15 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Lewis
[2006] QCA 121

…[15]Compare R v Lewis [2006] QCA 121.…
R v Cowie
[2005] QCA 223 Para 19

…[8] R v Cowie [2005] QCA 223 at [19].…
R v Young
[2005] QCA 32 Para 1

…anged, with a knife. He stabbed her six times; there was less premeditation than in Mr Lyon’s offence, but more serious injury caused. In R v Young [2005] QCA 32 this Court upheld a sentence of six years imprisonment, with a declaration, imposed on the female applicant who had been convicted after a trial of an…
R v Anderson
[2004] QCA 287 Para 1

…2, but less serious in cases in which a 12 or 13 year sentence had been imposed, those being in matters of R v Wilson [2001] QCA 215 and R v Anderson [2004] QCA 287. The Crown accordingly submitted that a head sentence in the range of eight to 10 years was appropriate, as would be a declaration that Mr Lyon had b…
R v Wiggins
[2003] QCA 367 Para 1

…not told of the three earlier written offers to plea, should the Crown drop the attempted murder charge. Counsel cited from R v Wiggins [2003] QCA 367, where this Court agreed with the observation in R v Marshall [1995] 1 Qd R 673 to the effect that:…
R v Melissant
[2003] QCA 122 Para 1

…ffence made it more serious than those in which six years imprisonment had been imposed such as those of R v Ambrose [1995] QCA 122 and R v Melissant [2003] QCA 122, but less serious in cases in which a 12 or 13 year sentence had been imposed, those being in matters of R v Wilson [2001] QCA 215 and R v Anderson […
Cameron v the Queen
[2002] HCA 6 Para 1

…may have been motivated by self-interest. It might even be thought that the system is designed to appeal to self-interest. [11] Cameron v The Queen (2002) 209 CLR 339 at p 343.…
R v Wilson
[2001] QCA 215 Para 1

…and R v Melissant [2003] QCA 122, but less serious in cases in which a 12 or 13 year sentence had been imposed, those being in matters of R v Wilson [2001] QCA 215 and R v Anderson [2004] QCA 287. The Crown accordingly submitted that a head sentence in the range of eight to 10 years was appropriate, as would be…
R v Dempsey
[2001] QCA 141 Para 1

…A seven year sentence was upheld by this Court, with no declaration, in Dempsey [2001] QCA 141 where that offender was found guilty after a trial of doing grievous bodily harm with intent. He too had attacked a female partner from whom he was estranged, with a knife. He stabbed her six times; there was less preme…
R v Clark; ex parte A-G
[1999] QCA 438

…2000] 2 Qd R 183; [1999] QCA 206, CA No 4 1999, 8 June 1999, considered R v Clark; ex parte A-G [1999] QCA 438; CA Nos 68 of 1999 and 82 of 1999, 22 October, considered R v Dempsey [2001] QCA 141; CA No 356 of 2000, 17 April 2001, considered R v Marshall [1995] 1 Qd R 673, considered R v Melissant [2003] QCA 122;…
R v Bojovic
[1999] QCA 206

…rson [2004] QCA 287; CA No 64 of 2004, 6 August 2004, considered R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, CA No 4 1999, 8 June 1999, considered R v Clark; ex parte A-G [1999] QCA 438; CA Nos 68 of 1999 and 82 of 1999, 22 October, considered R v Dempsey [2001] QCA 141; CA No 356 of 2000, 17 April 2001, consi…
R v Ambrose
[1995] QCA 122 Para 1

…d that the circumstances of the offence made it more serious than those in which six years imprisonment had been imposed such as those of R v Ambrose [1995] QCA 122 and R v Melissant [2003] QCA 122, but less serious in cases in which a 12 or 13 year sentence had been imposed, those being in matters of R v Wilson…

Legislation cited in this decision · 3

Penalties and Sentences Act 1992 (Qld)
161A, 9(1) 3 mentions (from Para 1)
Domestic and Family Violence Protection Act 1989 (Qld)
1 mention (from Para 1)
Domestic Violence Family Protection Act 1989 (Qld)
1 mention (from Para 1)

CITATION:	R v Lyon [2006] QCA 146
PARTIES:	R v LYON, John Andrew (applicant)
FILE NO/S:	CA No 14 of 2006 SC No 117 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2006
JUDGES:	Jerrard JA, Fryberg and Douglas JJ Separate reasons for judgment of each member of the Court, Jerrard JA and Douglas J concurring as to the orders made, Fryberg J dissenting
ORDER:	(1) Allow application for leave to appeal against sentence (2) Grant appeal (3) Substitute a sentence of seven years imprisonment for the nine years imposed, and maintain the declaration
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant was convicted of entering a dwelling with intent to commit an indictable offence with circumstances of aggravation that he entered the building by means of a break, was armed with an offensive weapon and he used actual violence – where applicant was convicted of unlawfully wounding his ex-wife with intent to do grievous bodily harm – where applicant was acquitted of the charge of attempted murder – where applicant was sentenced to nine years imprisonment on the count of unlawful wounding with intent to do grievous bodily harm and to a concurrent term of five years imprisonment for the burglary with circumstances of aggravation – where the conviction for wounding with intent to do grievous bodily harm was declared a serious violent offence – whether sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – whether the applicant, who made no admissions about either specific matters nor a plea of guilty in the jury’s presence, was entitled to some reduction of his sentence on the basis that he had made three written offers to plead guilty to burglary and wounding with intent to do grievous bodily harm if the Crown dropped the attempted murder charge CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where a serious violent offender declaration is a matter of discretion, is the sentencing court constrained to a sentence at the lower end of an appropriate range by terms Penalties and Sentences Act 1992 (Qld), s 161A, s 188 R v Ambrose [1995] QCA 122; CA No 5 of 1995, 21 March 1995, considered R v Anderson [2004] QCA 287; CA No 64 of 2004, 6 August 2004, considered R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, CA No 4 1999, 8 June 1999, considered R v Clark; ex parte A-G [1999]…