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R v McDonald

R v McDonald

Case [2005] QCA 383 14 October 2005

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SUPREME COURT OF QUEENSLAND

CITATION: R v McDonald [2005] QCA 383
PARTIES: R
v
McDONALD, Neil Dallas
(applicant)
FILE NO/S: CA No 236 of 2005
DC No 2915 of 2004
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Brisbane
DELIVERED ON: 14 October 2005
DELIVERED AT: Brisbane
HEARING DATE: 5 October 2005
JUDGES: McPherson and Jerrard JJA and Douglas J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application for leave to appeal against sentence dismissed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – applicant convicted by his own pleas of guilty to assault occasioning bodily harm and assault occasioning bodily harm whilst armed – sentenced to 15 months imprisonment suspended after five months operational for two years for the armed assault with a lesser concurrent term for the assault – applicant first assaulted complainant in a hotel then left the premises – applicant later returned and struck the complainant with a full liquor bottle – applicant had no prior convictions for violent offences – whether the sentence was manifestly excessive
R v Hays; ex parte A-G [1999] QCA 443; CA No 271 of
1999, 29 October 1999, considered
R v Hsu & Hsu [1998] QCA 257; CA Nos 199 and 200 of
1998, 7 August 1998, considered
R v Jasser [2004] QCA 14; CA No 277 of 2003, 9 February
2004, considered
R v Kent [2004] QCA 83; CA No 61 of 2004, 23 March 2004,
distinguished
R v Monro [2002] QCA 483; (2002) 135 A Crim R 256,
distinguished
COUNSEL: B P Marais for the applicant
M J Copley for the respondent
SOLICITORS: Paul Carter & Associates for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

McPHERSON JA: Despite the careful submissions of Mr Marais of counsel, I consider that the sentence imposed here was not disproportionate to the offences committed.
I agree with the reasons of Jerrard JA. The application for leave to appeal should be dismissed.
JERRARD JA: On March 2005 Neil McDonald pleaded guilty to one count of unlawfully assaulting Michael Pilgrim and doing him bodily harm, and one count of unlawfully assaulting Michael Pilgrim and doing him bodily harm when armed with an offensive instrument. On 18 August 2005 Mr McDonald was sentenced to five months imprisonment on the count of assault occasioning bodily harm, and to 15 months imprisonment, suspended after five months for a period of two years, for the offence of assault occasioning bodily harm whilst armed. Both sentences are to be served concurrently. Mr McDonald has applied for leave to appeal against those sentences, arguing that each is manifestly excessive.
Mr McDonald is 46, married, a concreter by profession, and he has a four year old son. He has a record of…

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 McDonald

Details

AGLC: R v McDonald [2005] QCA 383
Case: [2005] QCA 383
Decision Date: 14/10/2005

CaseChat Overview and Summary

The applicant, McDonald, appealed against his sentence in the Supreme Court of Victoria. McDonald was convicted by his own pleas of guilty to two counts of assault occasioning bodily harm, one of which was committed whilst armed. He was sentenced to 15 months imprisonment, suspended after five months operational, for the armed assault with a lesser concurrent term for the assault. The applicant first assaulted the complainant in a hotel and left the premises, then returned and struck the complainant with a full liquor bottle. McDonald had no prior convictions for violent offences. The applicant argued that the sentence was manifestly excessive.
The court was required to consider whether the sentence imposed was manifestly excessive. The court noted that the applicant's actions were premeditated and involved the use of a weapon, which resulted in serious bodily harm to the complainant. The court also noted that the applicant had no prior convictions for violent offences, which was a mitigating factor. The court held that the sentence was not manifestly excessive and dismissed the application for leave to appeal against sentence.
The court found that the sentence imposed was appropriate and not manifestly excessive. The court considered the seriousness of the offences, the use of a weapon, and the lack of prior convictions for violent offences. The court held that the sentence reflected the gravity of the offences and was not excessive. The application for leave to appeal against sentence was dismissed.
No orders were made as the application for leave to appeal against sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v McDonald [2005] QCA 383

Most Recent Citation

R v Lam [2006] QCA 560

Cases citing this decision · 5 of 5 shown

Bolton v Queensland Police Service
[2018] QDC 114

…A 22 R v D’Arrigo; ex parte Attorney-General (Qld) [2004] QCA 399 R v Ewen [2006] QCA 11 R v Le & anor [1996] 2 Qd R 516 R v McDonald [2005] QCA 383 R v Middleton and Johns (2006) 165 A Crim R 1 R v Stone [2010] QCA 157 R v Tootoo (2000) 115 A Crim R 90 COUNSEL: R Logan for the Appellant G Meoli for the Responden…
R v Carter
[2014] QCA 120 Para 1

…vant cases,[29] it is useful to refer to only three. [29] R v Gray [2011] QCA 362; R v Stone [2010] QCA 157; R v Campbell [2009] QCA 95; R v McDonald [2005] QCA 383; R v Salmon : ex parte Attorney-General (Qld) [2002] QCA 262; R v Tootoo [2000] QCA 312; (2000) 115 A Crim R 90; R v Moore (unreported, Qld Court of…
R v Cox
[2013] QCA 19 Para 1

…submission was not beyond argument, it is plain that the sentence was not manifestly excessive. I would refuse leave to appeal against sentence. [1][2005] QCA 383. [2][2007] QCA 324.…
R v Stone
[2010] QCA 157 Para 1

…R v McDonald [10] and R v Fortnum & Fortnum .[11] [5][2006] QCA 560. [6][2007] QCA 319. [7][2006] QCA 92. [8][1999] QCA 520. [9][2004] QCA 377. [10][2005] QCA 383. [11][2006] QCA 147.…
R v Lam
[2006] QCA 560 Para 1

…While the applicant also referred to the decisions of Cuff and R v McDonald [2005] QCA 383, neither of those cases concerned offending of the type involved in the present case, namely gratuitous street violence against a complete stranger, for which appropriately salutary sentences by way of general deterrence ar…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Kent
[2004] QCA 83 Para 18

…The respondent DPP referred the Court to the decisions in R v Jasser [2004] QCA 14 and R v Kent [2004] QCA 83. In Jasser that applicant had been convicted of unlawfully wounding after a three day trial, and sentenced to 21 months imprisonment. He had struck his victim on the cheek with a glass, after some pushin…
R v Jasser
[2004] QCA 14 Para 18

…The respondent DPP referred the Court to the decisions in R v Jasser [2004] QCA 14 and R v Kent [2004] QCA 83. In Jasser that applicant had been convicted of unlawfully wounding after a three day trial, and sentenced to 21 months imprisonment. He had struck his victim on the cheek with a glass, after some pushin…
R v Orreal
[2002] QCA 547 Para 21

…equences of such a blow and because of the prevalence of incidents of that kind. Reference was made to the decisions in Toohey [2001] QCA 149, Orreal [2002] QCA 547, and the decision in Jasser . This Court held that despite Mr Kent’s co-operation and guilty plea, there were no special circumstances requiring that…
R v Monro
[2002] QCA 483 Para 16

…Mr McDonald’s counsel also referred to R v Monro [2002] QCA 483, in which the charge brought was also one of assault occasioning bodily harm. That offender was sentenced to four months imprisonment, suspended immediately for an operational period of 18 months. His complaint on appeal was against the recording of…
R v Toohey
[2001] QCA 149 Para 21

…the likely serious consequences of such a blow and because of the prevalence of incidents of that kind. Reference was made to the decisions in Toohey [2001] QCA 149, Orreal [2002] QCA 547, and the decision in Jasser . This Court held that despite Mr Kent’s co-operation and guilty plea, there were no special circu…
R v Hsu & Hsu
[1998] QCA 257 Para 9

…In R v Morgan Hsu & Mao Hsu [1998] QCA 257, this Court heard appeals in which both applicants had pleaded guilty to two counts of assault occasioning bodily harm while armed. They were brothers, and in the course of a feud between two families, they attacked their victims (who were also brothers) in a hotel loung…
R v Anders and Attorney-General of Queensland
[1997] QCA 211 Para 14

…er six months; in Maguire [1997] QCA 38, in which the Court refused leave to appeal against the sentence of two years imprisonment; and in Anders [1997] QCA 211, in which a sentence of one year to be served by way of an intensive correction order was increased on appeal to this Court to one of 18 months imprisonm…
R v Maguire
[1997] QCA 38 Para 14

…1996] QCA 211, in which this Court refused leave to appeal against an 18 months sentence of imprisonment with parole after six months; in Maguire [1997] QCA 38, in which the Court refused leave to appeal against the sentence of two years imprisonment; and in Anders [1997] QCA 211, in which a sentence of one year…
R v Vickery
[1992] QCA 147 Para 14

…That joint judgment then described the sentence of 200 hours community service in the matter of Vickery [1992] QCA 147, increased on the Attorney’s appeal to 12 months imprisonment; the sentence in Melano [1995] 2 Qd R 186, in which this Court dismissed an Attorney’s appeal against a 15 month sentence of imprison…
[1996] QCA 211
[1996] QCA 211 Para 14

…186, in which this Court dismissed an Attorney’s appeal against a 15 month sentence of imprisonment suspended after three months; that in Darwin [1996] QCA 211, in which this Court refused leave to appeal against an 18 months sentence of imprisonment with parole after six months; in Maguire [1997] QCA 38, in whi…
R v Hayes; ex parte Attorney-General
[1999] QCA 443 Para 13

…Mr McDonald’s counsel also referred to R v Hays; ex parte A-G [1999] QCA 443, in which this Court allowed an appeal by the Attorney-General against a sentence of 240 hours community service imposed for the offence of unlawful wounding. That respondent was 24, had no relevant criminal history, and was very remorse…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v McDonald [2005] QCA 383
PARTIES:	R v McDONALD, Neil Dallas (applicant)
FILE NO/S:	CA No 236 of 2005 DC No 2915 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	5 October 2005
JUDGES:	McPherson and Jerrard JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – applicant convicted by his own pleas of guilty to assault occasioning bodily harm and assault occasioning bodily harm whilst armed – sentenced to 15 months imprisonment suspended after five months operational for two years for the armed assault with a lesser concurrent term for the assault – applicant first assaulted complainant in a hotel then left the premises – applicant later returned and struck the complainant with a full liquor bottle – applicant had no prior convictions for violent offences – whether the sentence was manifestly excessive
R v Hays; ex parte A-G [1999] QCA 443; CA No 271 of 1999, 29 October 1999, considered R v Hsu & Hsu [1998] QCA 257; CA Nos 199 and 200 of 1998, 7 August 1998, considered R v Jasser [2004] QCA 14; CA No 277 of 2003, 9 February 2004, considered R v Kent [2004] QCA 83; CA No 61 of 2004, 23 March 2004, distinguished R v Monro [2002] QCA 483; (2002) 135 A Crim R 256, distinguished
COUNSEL:	B P Marais for the applicant M J Copley for the respondent
SOLICITORS:	Paul Carter & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent