R v McClintock

[2009] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION:

R v McClintock [2009] QCA 175

PARTIES:

R
v
McCLINTOCK, Rebecca Lynette
(appellant/applicant)

FILE NO/S:

CA No 275 of 2008
SC No 84 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

19 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2009

JUDGES:

Keane, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     Appeal against conviction is dismissed.

2.    Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where trial judge gave a majority verdict direction to the jury – where appellant was found guilty of malicious wounding by way of a majority verdict – whether the trial judge failed to properly consider the prescribed matters for making a majority verdict direction under s 59A of the Jury Act 1995 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was convicted of malicious wounding and sentenced to six years imprisonment – whether sentence was manifestly excessive

Jury Act 1995 (Qld), s 59A

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited
Hanna v The Queen [2008] NSWCCA 173, distinguished
R v Young[2005] QCA 32, considered
RJS v The Queen (2007) 173 A Crim R 100; [2007] NSWCCA 241, distinguished

COUNSEL:

J M Sharp for the appellant/applicant
M B Lehane for the respondent

SOLICITORS:

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

1. KEANE JA:  I have had the advantage of reading the reasons for judgment prepared by Chesterman JA.  I agree with those reasons and with the orders proposed by his Honour.

1. FRASER JA:  I agree with the reasons of Chesterman JA and with the orders proposed by his Honour.

1. CHESTERMAN JA:   The appellant was tried on an indictment which charged her with:

1.          Wilfully damaging property;

2.          Entering a dwelling with intent to commit an indictable offence at night using actual violence while armed with a dangerous instrument;

3.          Assaulting Peter McClintock who was confined to a wheelchair;

4.          Attempting unlawfully to kill Peter McClintock: alternatively;

5.          Unlawfully wounding Peter McClintock with intent to do him some grievous bodily harm;

6.          Unlawfully assaulting Mary Nagy.

1. On 29 September 2008 the appellant pleaded guilty to the charges contained in counts 1 and 3, wilfully damaging property and the serious assault of Peter McClintock.  After a trial spanning three days the jury, on 1 October 2008 delivered verdicts on the other counts.  The appellant was convicted of count 2, burglary, but acquitted of count 6, common assault.  Those verdicts were unanimous.  The jury, by majority, acquitted the appellant of attempted murder (count 4) but…