SUPREME COURT OF QUEENSLAND
CITATION:
R v Major; ex parte A-G (Qld) [2011] QCA 210
PARTIES:
R
v
MAJOR, Troy Lane
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)FILE NO/S:
CA No 264 of 2010
DC No 2882 of 2009DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by A-G (Qld)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
30 August 2011
DELIVERED AT:
Brisbane
HEARING DATE:
2 June 2011
JUDGES:
Margaret McMurdo P, Chesterman JA and Fryberg J
Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Chesterman JA concurring as to the orders made, Fryberg J dissenting in partORDERS:
1.Appeal allowed.
2.Set aside the sentences imposed on counts 3, 7 and 10 and the order on counts 1, 4, 5, 6, 8 and 9 suspending those sentences after 741 days with an operational period of five years.
3.On each of counts 3 and 7, order that the respondent be sentenced to five years imprisonment suspended after 741 days with an operational period of five years.
4.On count 10, order that a conviction be recorded and that the respondent be placed on probation for three years on the terms and conditions set out in s 93 Penalties and Sentences Act 1992 (Qld).
5.The sentence imposed at first instance is otherwise confirmed.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – AMENDMENT – where the grounds contained in the notice of appeal contended that the sentences imposed at first instance were "inadequate" – where the appellant sought leave to amend the notice of appeal to add the word "manifestly" before "inadequate" following the decision in Lacey v Attorney General (2011) 85 ALJR 508; [2011] HCA 10 – where the respondent contended that the original notice of appeal was incompetent and that it did not invoke the jurisdiction of the Court of Appeal so that the appellant's right of appeal was exhausted – where the respondent did not suffer any prejudice from allowing the amendment – whether leave should be given to amend the notice of appeal
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to seven counts of assault occasioning bodily harm, and one count of threatening violence at night, wounding and assault occasioning bodily harm while armed – where the respondent was sentenced for the offence of wounding to four years imprisonment suspended after a period of 741 days with an operational period of five years – where the respondent was sentenced on all remaining counts to two years imprisonment suspended after 741 days with an operational period of five years – where 741 days of pre-sentence custody was declared as time served under the sentence and the respondent was released from custody upon his sentence – where the appellant contended the sentences were manifestly inadequate because they failed to reflect the gravity of the…
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- Case
- [2011] QCA 210
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether leave should be given to amend the notice of appeal and whether the sentences imposed by the lower court were manifestly inadequate. The court considered whether the original notice of appeal was incompetent and if the appellant's right of appeal was exhausted. The court also considered whether the sentences imposed by the lower court were manifestly inadequate in light of the gravity of the offences and the principles of general deterrence.
The court held that leave should be given to amend the notice of appeal as the respondent did not suffer any prejudice from allowing the amendment. The court further held that the sentences imposed by the lower court were manifestly inadequate because they failed to reflect the gravity of the offences generally, the aspect of general deterrence, and gave too much weight to mitigating factors. The court set aside the sentences imposed on counts 3, 7, and 10 and the order on counts 1, 4, 5, 6, 8, and 9 suspending those sentences after 741 days with an operational period of five years. The court ordered that the respondent be sentenced to five years imprisonment suspended after 741 days with an operational period of five years on each of counts 3 and 7 and that a conviction be recorded and that the respondent be placed on probation for three years on the terms and conditions set out in s 93 Penalties and Sentences Act 1992 (Qld) on count 10. The sentence imposed at first instance was otherwise confirmed.
Orders
Orders of the court
1.Appeal allowed.
2.Set aside the sentences imposed on counts 3, 7 and 10 and the order on counts 1, 4, 5, 6, 8 and 9 suspending those sentences after 741 days with an operational period of five years.
3.On each of counts 3 and 7, order that the respondent be sentenced to five years imprisonment suspended after 741 days with an operational period of five years.
4.On count 10, order that a conviction be recorded and that the respondent be placed on probation for three years on the terms and conditions set out in s 93 Penalties and Sentences Act 1992 (Qld).
5.The sentence imposed at first instance is otherwise confirmed.
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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