R v O'Grady; ex parte Attorney-General - [2003] QCA 137

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Grady; ex parte A-G (Qld) [2003] QCA 137

PARTIES:

R
v
O’GRADY, Nathan
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

(appellant)

FILE NO/S:

CA No 35 of 2003

DC No 473 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

28 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

19 March 2003

JUDGES:

de Jersey CJ, Williams JA and Atkinson J

Separate reasons for judgment of each member of the Court, Williams JA and Atkinson J concurring as to the orders made, de Jersey CJ dissenting in part

ORDERS:

The appeal is allowed, the sentence of 12 months imprisonment to be served by way of intensive correction order is set aside, and in lieu thereof, it is ordered that the respondent be imprisoned for two years, and it is further ordered that such term of imprisonment be wholly suspended with an operational period of three years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where unprovoked, gratuitous street violence – where specific blow occasioning grievous bodily harm the culmination of a prolonged attack – where respondent is young, holds a responsible job, is in a stable family situation and has satisfactorily completed two months of an intensive correction order – whether custodial sentence appropriate

Dinsdale v R (2000) 202 CLR 321, approved
Malvaso v R (1989) 168 CLR 227, approved
R v Craske [2002] QCA 49; CA No 11 of 2002, 1 March 2002, considered

R v Cuff; ex parte A-G (Qld) [2001] QCA 351; CA No 151 of 2001, 22 August 2001, distinguished

R v D [1996] 1 Qd R 363, considered
R v de Simoni (1981) 147 CLR 383, considered
R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered
R v Elliott [2001] QCA 507; CA No 168 of 2001, 14 November 2001, considered
R v Merriman [1973] AC 584, considered

R v T [1993] 1 Qd R 454, considered

COUNSEL:

M J Copley for the appellant

A J Moynihan for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant

Legal Aid Queensland for the respondent

de JERSEY CJ: On 15 January this year the respondent, then 28 years old and with no prior criminal history, was sentenced to 12 months imprisonment to be served by way of intensive correction order for one count of assault occasioning bodily harm and one of doing grievous bodily harm. The Attorney-General appeals.

The charges, to which the respondent pleaded guilty, arose from events which occurred at about midnight on 9 March 2002. The male complainants were, with their wives, returning to a motor vehicle from a restaurant. Members of an approaching group made insulting comments. Shortly…

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

Case: [2003] QCA 137
Decision Date: 28 March 2003

CaseChat Overview and Summary

In the matter of R v O'Grady; ex parte Attorney-General, the respondent was convicted of various offences against the person, including an unprovoked and gratuitous act of street violence that resulted in grievous bodily harm. The case reached the court as the Attorney-General sought to appeal against the sentence imposed on the respondent. The primary concern was whether the sentence, which was a 12-month imprisonment to be served by way of an intensive correction order, was appropriate given the nature of the offence and the respondent's background.

The court was tasked with determining whether the sentence met the objectives of punishment, deterrence, and rehabilitation. It had to consider the gravity of the offence, the respondent's personal circumstances, and the potential impact of the sentence on the broader community. The respondent, a young individual with a responsible job and a stable family situation, had already completed two months of an intensive correction order. The court needed to weigh these factors against the severity of the crime, which involved a prolonged attack culminating in a specific blow causing grievous bodily harm.

The court found that the original sentence did not adequately reflect the seriousness of the offence or serve the purposes of punishment and deterrence. It set aside the initial sentence and replaced it with a two-year imprisonment term, wholly suspended with an operational period of three years. This decision aimed to balance the need for punishment with the potential for rehabilitation, considering the respondent's background and the specific circumstances of the case.

Orders

Orders of the court

The appeal is allowed, the sentence of 12 months imprisonment to be served by way of intensive correction order is set aside, and in lieu thereof, it is ordered that the respondent be imprisoned for two years, and it is further ordered that such term of imprisonment be wholly suspended with an operational period of three years.

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’Grady; ex parte A-G (Qld) [2003] QCA 137
PARTIES:	R v O’GRADY, Nathan (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 35 of 2003 DC No 473 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	28 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	19 March 2003
JUDGES:	de Jersey CJ, Williams JA and Atkinson J Separate reasons for judgment of each member of the Court, Williams JA and Atkinson J concurring as to the orders made, de Jersey CJ dissenting in part
ORDERS:	The appeal is allowed, the sentence of 12 months imprisonment to be served by way of intensive correction order is set aside, and in lieu thereof, it is ordered that the respondent be imprisoned for two years, and it is further ordered that such term of imprisonment be wholly suspended with an operational period of three years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where unprovoked, gratuitous street violence – where specific blow occasioning grievous bodily harm the culmination of a prolonged attack – where respondent is young, holds a responsible job, is in a stable family situation and has satisfactorily completed two months of an intensive correction order – whether custodial sentence appropriate Dinsdale v R (2000) 202 CLR 321, approved Malvaso v R (1989) 168 CLR 227, approved R v Craske [2002] QCA 49; CA No 11 of 2002, 1 March 2002, considered R v Cuff; ex parte A-G (Qld) [2001] QCA 351; CA No 151 of 2001, 22 August 2001, distinguished R v D [1996] 1 Qd R 363, considered R v de Simoni (1981) 147 CLR 383, considered R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered R v Elliott [2001] QCA 507; CA No 168 of 2001, 14 November 2001, considered R v Merriman [1973] AC 584, considered R v T [1993] 1 Qd R 454, considered
COUNSEL:	M J Copley for the appellant A J Moynihan for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent