R v Maguire - [2004] QCA 55

SUPREME COURT OF QUEENSLAND

CITATION:

R v Maguire [2004] QCA 55

PARTIES:

R
v
MAGUIRE, Brian Kevin

(applicant)

FILE NO/S:

CA No 358 of 2003

DC No 186 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough

DELIVERED EX TEMPORE ON:

8 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2004

JUDGES:

Davies and Jerrard JJA and McMurdo J

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

ORDER:

Application for leave to appeal is dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – GENERALLY – where applicant sentenced in relation to one count of grievous bodily harm, two counts of assault, one count of wilful damage, two counts of summary charges and one count of failure to appear in breach of Bail Act 1980 (Qld) – where head sentence is five and half years – where sentencing judge accounted for mitigating factors – where applicant seeks leave to admit further evidence – whether the sentence is manifestly excessive

R v Bryan, ex parte the A-G [2003] QCA 18; CA No 410 of 2002, 5 February 2003, considered

R v Wiggins [2003] QCA 367; CA No 134 of 2003, 27 August 2003, considered

COUNSEL:

A J Moynihan for the applicant

D A Holliday for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO J: On 18 September 2003, the applicant was sentenced in relation to one count of grievous bodily harm, two counts of assault occasioning bodily harm, one of wilful damage and two summary charges, one of possession of a knife in a public place and one of a failure to appear in breach of the Bail Act 1980. The wilful damage occurred on 13 January 2003, the assaults occasioning bodily harm on 11 February 2003 and the grievous bodily harm, which involved the knife, occurred on 6 March 2003.

Upon the grievous bodily harm count, the applicant was sentenced to a term of five and a half years imprisonment with a recommendation for post-prison community based release after two years. Upon the assaults occasioning bodily harm, he was sentenced to terms of 12 and 18 months imprisonment. He was sentenced to one month imprisonment for the wilful damage, six months for the possession of the knife and two months for breach of the Bail Act. All of the sentences were ordered to be served concurrently other than the two months for the bail offence which must be served cumulatively. He was declared to have spent 104 days in pre-sentence custody.

He applies for leave to appeal against the sentence for the grievous bodily harm, submitting that the head sentence should be reduced from five and a half years to five years and that it should be suspended after two years in lieu…

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 Maguire

Details

AGLC: R v Maguire [2004] QCA 55
Case: [2004] QCA 55
Decision Date: 8 March 2004

CaseChat Overview and Summary

The applicant, Maguire, sought leave to appeal against the sentence imposed by the Supreme Court of Queensland. Maguire was convicted and sentenced on multiple charges, including grievous bodily harm, assault, wilful damage, summary charges, and failure to appear in breach of the Bail Act 1980 (Qld). The sentence imposed was a total of five and a half years, with the sentencing judge taking into account various mitigating factors. Maguire argued that the sentence was manifestly excessive and sought leave to adduce further evidence to support his application.

The court examined the legal issues surrounding the applicant's appeal against the sentence. The key issue was whether the sentence imposed was manifestly excessive, given the mitigating factors considered by the sentencing judge. The court also had to determine whether the proposed additional evidence was relevant and necessary to assess the sentence's excessiveness.

In dismissing the application for leave to appeal, the court held that the sentencing judge had appropriately considered the mitigating factors and had not erred in law or fact. The court found that the sentence was not manifestly excessive and that the proposed additional evidence did not provide sufficient grounds to warrant a review of the sentence. The court concluded that the sentencing judge had exercised their discretion properly, and the sentence was within the range of appropriate punishments for the crimes committed. As a result, the application for leave to appeal was dismissed.

Orders

Orders of the court

Application for leave to appeal is dismissed

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Maguire [2004] QCA 55
PARTIES:	R v MAGUIRE, Brian Kevin (applicant)
FILE NO/S:	CA No 358 of 2003 DC No 186 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maryborough
DELIVERED EX TEMPORE ON:	8 March 2004
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2004
JUDGES:	Davies and Jerrard JJA and McMurdo J Separate reasons for judgment for each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal is dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – GENERALLY – where applicant sentenced in relation to one count of grievous bodily harm, two counts of assault, one count of wilful damage, two counts of summary charges and one count of failure to appear in breach of Bail Act 1980 (Qld) – where head sentence is five and half years – where sentencing judge accounted for mitigating factors – where applicant seeks leave to admit further evidence – whether the sentence is manifestly excessive R v Bryan, ex parte the A-G [2003] QCA 18; CA No 410 of 2002, 5 February 2003, considered R v Wiggins [2003] QCA 367; CA No 134 of 2003, 27 August 2003, considered
COUNSEL:	A J Moynihan for the applicant D A Holliday for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent