CA No 24 of 2003 DC No 3051 of 2002 DC No 3436 of 2002
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
2 May 2003
DELIVERED AT:
Brisbane
HEARING DATE:
9 April 2003
JUDGES:
Williams and Jerrard JJA and Muir J Separate reasons for judgment of each member of the Court, Williams JA and Muir J agreeing as to the orders made, Jerrard JA dissenting in part
ORDERS:
1. Grant leave to appeal and allow the appeal; 2. Set aside the sentences imposed below for the offences of assault occasioning bodily harm in company on 25 December 2001 and the two counts of assault occasioning bodily harm in company whilst armed on 11 February 2002; 3. In lieu thereof impose sentences as follows:
(a) 2 years imprisonment on the count of assault occasioning bodily harm in company on 25 December 2001;
(b) 3 years imprisonment on each count of assault occasioning bodily harm in company whilst armed on 11 February 2002, such sentences to be served concurrently but cumulatively with the sentence of 2 years imprisonment imposed with respect to the offence of 25 December 2001;
(c) recommend that the applicant be eligible to apply for post-prison community based release after serving 18 months of the entire period of imprisonment.
4. Declare that the applicant has been in custody solely in relation to these matters from 24 April 2002 until 2 May 2003 a period of 374 days and that is declared to be time already served under the sentence
CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – SENTENCES ON TWO OR MORE COUNTS – where applicant convicted on a number of counts of various offences including two counts of assault occasioning bodily harm whilst armed and in company – where serious criminal history – whether sentencing for a number of counts can be approached by fixing a term of imprisonment which reflects the overall criminality of the conduct
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where no injuries to first complainant of lasting significance – where assault in company while on probation – where applicant young and pled guilty – where no remorse – whether sentence manifestly excessive
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRENCE – where second assault in company committed against a railway guard and a train driver – whether this justified a heavier sentence in order to deter similar attacks
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY…
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.
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Details
AGLC
R v Nagy [2003] QCA 175
Case
[2003] QCA 175
Decision Date
CaseChat Overview and Summary
The case before the court involved the applicant, Nagy, who was convicted on various counts of assault occasioning bodily harm while armed and in company. The court was tasked with addressing the sentencing approach for multiple convictions, considering the overall criminality of the conduct, and determining whether the sentences imposed were appropriate. The applicant's criminal history, the nature of the assaults, and the circumstances of the offences were central to the legal issues before the court.
The court considered whether sentencing for multiple counts should be approached by setting a term of imprisonment that reflects the overall criminality. It examined the specific circumstances of the offences, including the lack of lasting injuries to the first complainant and the fact that the applicant was on probation during the assault. The court also assessed whether the sentence was manifestly excessive given the applicant's age, guilty plea, and lack of remorse. Additionally, the court evaluated the purpose of the sentence in terms of deterrence, particularly in light of the second assault against a railway guard and a train driver. The sentencing disparity between the applicant and his co-offenders was another factor considered, with the court determining whether the differences in personal circumstances justified a marked disparity that might cause a sense of grievance.
The court determined that the sentences imposed were excessive and did not adequately reflect the overall criminality of the conduct. It allowed the appeal, set aside the original sentences, and imposed new sentences that it deemed more appropriate. The new sentences included a term of 2 years imprisonment for the count of assault occasioning bodily harm in company on 25 December 2001, and 3 years imprisonment for each count of assault occasioning bodily harm in company while armed on 11 February 2002, to be served concurrently but cumulatively with the earlier sentence. The court also recommended that the applicant be eligible for post-prison community-based release after serving 18 months of the entire period of imprisonment, and declared that the applicant had already served 374 days in custody.
Orders
Orders of the court
1. Grant leave to appeal and allow the appeal;
2. Set aside the sentences imposed below for the offences of assault occasioning bodily harm in company on 25 December 2001 and the two counts of assault occasioning bodily harm in company whilst armed on 11 February 2002;
3. In lieu thereof impose sentences as follows:
(a) 2 years imprisonment on the count of assault occasioning bodily harm in company on 25 December 2001;
(b) 3 years imprisonment on each count of assault occasioning bodily harm in company whilst armed on 11 February 2002, such sentences to be served concurrently but cumulatively with the sentence of 2 years imprisonment imposed with respect to the offence of 25 December 2001;
(c) recommend that the applicant be eligible to apply for post-prison community based release after serving 18 months of the entire period of imprisonment.
4. Declare that the applicant has been in custody solely in relation to these matters from 24 April 2002 until 2 May 2003 a period of 374 days and that is declared to be time already served under the sentence