R v O'Dell - [2006] QCA 8

SUPREME COURT OF QUEENSLAND

CITATION:

R v O'Dell [2006] QCA 8

PARTIES:

R
v
O'DELL, David John
(applicant)

FILE NO/S:

CA No 274 of 2005
DC No 26 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Dalby

DELIVERED EX TEMPORE ON:

6 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2006

JUDGES:

McMurdo P, Keane JA and Muir 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 - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - where applicant pleaded guilty to one count of causing grievous bodily harm and one count of wilfully causing damage to property - where longstanding feud between applicant and complainant - where applicant struck complainant on hand and face with fence paling - where complainant suffered serious injury - where applicant had substantial criminal history interstate - where learned sentencing judge gave applicant credit for guilty plea and good record in Queensland - where applicant was sentenced to two years imprisonment suspended after 12 months for grievous bodily harm and six months imprisonment for wilful damage - whether the sentence imposed was manifestly excessive

R v Greig; ex parte A-G (Qld) [2000] QCA 276; CA No 427 of 1999, 13 July 2000, cited
R v Hudson; ex parte A-G (Qld) [2002] QCA 239; CA No 124 of 2002, 3 July 2002, cited
R v O'Grady; ex parte A-G (Qld) [2003] QCA 137; CA No 35 of 2003, 28 March 2003, cited

COUNSEL:

B G Devereaux SC for the applicant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 27 September 2005 the applicant was sentenced, following his plea of guilty, to one count of wilfully causing damage to property and one count of causing grievous bodily harm. In respect of the offence of grievous bodily harm he was sentenced to two years imprisonment suspended after 12 months with an operational period of three years. He was sentenced to six months imprisonment in respect of the wilful damage offence. The sentences were to be served concurrently.

The applicant seeks leave to appeal against the sentence in respect of the offence of grievous bodily harm on the ground that it is manifestly excessive by reason of the length of time which the applicant is obliged to serve in actual custody before the sentence is suspended. In this regard it is contended that the sentence should be suspended after the applicant has served eight months in custody.

As to the circumstances of the offence, the complainant and the applicant lived with their families in adjoining units of a duplex in Dalby.…

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 O'Dell

Details

AGLC: R v O'Dell [2006] QCA 8
Case: [2006] QCA 8
Decision Date: 6 February 2006

CaseChat Overview and Summary

The case of R v O'Dell involved the appellant, who had pleaded guilty to charges of causing grievous bodily harm and wilfully causing damage to property. The context of the offence was rooted in a longstanding dispute between the appellant and the complainant. The appellant attacked the complainant, striking him on the hand and face with a fence paling, which resulted in a serious injury. The appellant's criminal history, primarily from interstate, was taken into account by the sentencing judge. Despite this history, the judge acknowledged the appellant's good conduct record in Queensland and his early guilty plea. The appellant was sentenced to two years imprisonment, suspended after 12 months, for the grievous bodily harm charge, and six months imprisonment for the wilful damage charge.

The legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive. The appellant argued that the sentence was too harsh given the circumstances of the case and his otherwise good conduct record in Queensland. The court was required to determine whether the sentence was so disproportionate to the offence that it amounted to an error in principle warranting appellate intervention. The court considered the principle of totality, which requires that the aggregate penalty for multiple offences not be excessive in relation to the gravity of the offences and the offender's culpability.

In assessing the appeal, the court reviewed the sentencing judge's reasoning and the overall proportionality of the sentence. The court noted that the sentencing judge had appropriately balanced the seriousness of the offences, the appellant's criminal history, and the mitigating factors of the guilty plea and good conduct record in Queensland. The court found that the sentence was within the range of acceptable penalties for the crimes committed and did not constitute a manifestly excessive punishment. Therefore, the appeal against the sentence was dismissed, and leave to appeal was refused.

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.

CITATION:	R v O'Dell [2006] QCA 8
PARTIES:	R v O'DELL, David John (applicant)
FILE NO/S:	CA No 274 of 2005 DC No 26 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Dalby
DELIVERED EX TEMPORE ON:	6 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2006
JUDGES:	McMurdo P, Keane JA and Muir 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 - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - where applicant pleaded guilty to one count of causing grievous bodily harm and one count of wilfully causing damage to property - where longstanding feud between applicant and complainant - where applicant struck complainant on hand and face with fence paling - where complainant suffered serious injury - where applicant had substantial criminal history interstate - where learned sentencing judge gave applicant credit for guilty plea and good record in Queensland - where applicant was sentenced to two years imprisonment suspended after 12 months for grievous bodily harm and six months imprisonment for wilful damage - whether the sentence imposed was manifestly excessive R v Greig; ex parte A-G (Qld) [2000] QCA 276; CA No 427 of 1999, 13 July 2000, cited R v Hudson; ex parte A-G (Qld) [2002] QCA 239; CA No 124 of 2002, 3 July 2002, cited R v O'Grady; ex parte A-G (Qld) [2003] QCA 137; CA No 35 of 2003, 28 March 2003, cited
COUNSEL:	B G Devereaux SC for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent