R v Ry; ex parte - [2006] QCA 437

SUPREME COURT OF QUEENSLAND

CITATION:

R v RY; ex parte A-G (Qld) [2006] QCA 437

PARTIES:

R
v
RY
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 250 of 2006
DC No 158 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

3 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2006

JUDGES:

Williams and Keane JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

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 - respondent pleaded guilty to two counts of assault occasioning bodily harm - respondent sentenced to imprisonment for 12 months to be served by way of intensive correction order - offences to which respondent pleaded guilty constituted breach of terms of previously imposed suspended sentence - suspended sentence extended further for an operational period of one year - complainant was respondent's daughter - respondent 25 at time of offences - respondent had substantial criminal history including breaching domestic violence orders - respondent has problem with alcohol - respondent undertook rehabilitation programs in between time of offences and time of sentence - respondent has custody of young son - whether sentence manifestly inadequate

Penalties and Sentences Act 1992 (Qld), s 113

King & Kordick v Styles [1997] QCA 278; CA No 215 of 1997, 12 September 1997, cited
R v Cuff; ex parte A-G (Qld) [2001] QCA 351; CA No 151 of 2001, 22 August 2001, cited
R v H; ex parte A-G (Qld) [2001] QCA 174; CA No 290 of 2000, 8 May 2001, considered
R v PZ; ex parte A-G (Qld) [2005] QCA 459; CA No 281 of 2005, 9 December 2005, cited
R v R [2001] QCA 305; CA No 68 of 2001, 30 July 2001, considered
R v Rann [2005] QCA 366; CA No 184 of 2005, 30 September 2005, cited

COUNSEL:

S G Bain for the appellant
A W Moynihan for the respondent

SOLICITORS:

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

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA wherein the relevant background facts to this appeal by the Attorney-General are set out. For the reasons advanced by Keane JA the appeal should be dismissed.

My main concern has been the respondent's criminal history which includes episodes of domestic violence. But it appears that the removal of his son from his care by the Department of Child Safety made the respondent realise that he had to take serious steps to reform his conduct.

The program he undertook with the Australian Red Cross Intensive Family Support Program provided the guidance and…

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 Ry; ex parte

Details

AGLC: R v Ry; ex parte [2006] QCA 437
Case: [2006] QCA 437
Decision Date: 3 November 2006

CaseChat Overview and Summary

In the matter of an appeal against sentence, the Attorney-General of Queensland sought to have the sentence imposed on the respondent increased. The respondent had pleaded guilty to two counts of assault occasioning bodily harm. He was sentenced to imprisonment for 12 months, to be served by way of an intensive correction order. The respondent had a substantial criminal history, including breaches of domestic violence orders. The complainant was the respondent's daughter. The Attorney-General argued that the sentence was manifestly inadequate.

The court had to decide whether the sentence imposed was manifestly inadequate, taking into account the seriousness of the offence, the offender's culpability, and the need for deterrence and denunciation. The court noted that the respondent had a significant criminal history and had breached domestic violence orders in the past. The court also considered the respondent's alcohol problem and his efforts to undertake rehabilitation programs. However, the court held that the sentence was not manifestly inadequate.

The court held that the sentence was not manifestly inadequate, taking into account the totality of the circumstances. The court noted that the respondent had undertaken rehabilitation programs in between the time of the offences and the time of sentence. The court also considered that the respondent had custody of a young son. The court held that the sentence was appropriate, given the totality of the circumstances. The appeal was dismissed.

Orders

Orders of the court

Appeal 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 RY; ex parte A-G (Qld) [2006] QCA 437
PARTIES:	R v RY (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 250 of 2006 DC No 158 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	3 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2006
JUDGES:	Williams and Keane JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
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 - respondent pleaded guilty to two counts of assault occasioning bodily harm - respondent sentenced to imprisonment for 12 months to be served by way of intensive correction order - offences to which respondent pleaded guilty constituted breach of terms of previously imposed suspended sentence - suspended sentence extended further for an operational period of one year - complainant was respondent's daughter - respondent 25 at time of offences - respondent had substantial criminal history including breaching domestic violence orders - respondent has problem with alcohol - respondent undertook rehabilitation programs in between time of offences and time of sentence - respondent has custody of young son - whether sentence manifestly inadequate Penalties and Sentences Act 1992 (Qld), s 113 King & Kordick v Styles [1997] QCA 278; CA No 215 of 1997, 12 September 1997, cited R v Cuff; ex parte A-G (Qld) [2001] QCA 351; CA No 151 of 2001, 22 August 2001, cited R v H; ex parte A-G (Qld) [2001] QCA 174; CA No 290 of 2000, 8 May 2001, considered R v PZ; ex parte A-G (Qld) [2005] QCA 459; CA No 281 of 2005, 9 December 2005, cited R v R [2001] QCA 305; CA No 68 of 2001, 30 July 2001, considered R v Rann [2005] QCA 366; CA No 184 of 2005, 30 September 2005, cited
COUNSEL:	S G Bain for the appellant A W Moynihan for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent