R v. Ryan - [2008] QCA 134

[2008] QCA 134

COURT OF APPEAL

MUIR JA
MACKENZIE AJA
JONES J

CA No 59 of 2008

THE QUEEN
and
MICHAEL STEPHEN RYAN	Applicant

TOWNSVILLE

DATE 29/05/2008

JUDGMENT

MUIR JA: The applicant was convicted on his own plea of guilty of one count of unlawful assault causing bodily harm in company with another person in the District Court at Cairns and sentenced on 7 February 2008 to 18 months' imprisonment with a parole release date of 6 November 2008.

He was 28 years of age at the time of the offence. He had two prior convictions for breaching domestic violence orders; a conviction in October 1997 for breaking an entering and wilfully setting fire to a building; a conviction in January 2004 for behaving in a disorderly manner and a conviction in December 2004 for being drunk and disorderly on licensed premises. The circumstances of the domestic violence offences are unknown.

At about 2 am on 9 June 2007 a security camera filmed the applicant approach the complainant who was sitting on a step outside a nightclub. A brief conversation took place and the applicant unsuccessfully attempted to punch the complainant twice in the head. The applicant went into the nightclub. The complainant remained seated for a few minutes and then walked away from the club. The applicant and his co-accused started to follow the complainant and after a while ran after him. The applicant caught up with the complainant and punched him several times in the head.

The complainant managed to escape for a short distance but was caught and punched to the ground by the applicant. The complainant regained his feet and attempted to run away but the applicant again punched him several times to the head causing him to fall. The co-offender then kicked the complainant in the head and the applicant and the co-offender walked away. The evidence does not reveal the extent of the injuries inflicted on the complainant but it was common ground that any serious injuries were caused by the co-offender's kicking.

The applicant seems to have been in regular employment. He had two young children by a woman with whom he was in a longstanding de facto relationship.

Three grounds of appeal are relied on. The first is that the learned primary Judge erred in finding that the applicant's criminal history suggests ill-temper. Mr Collins, who appeared for him, advanced no oral submissions in that regard, probably because there was no substance in the point.

The next complaint is that the primary Judge erred in not taking into account the applicant's claims that the incident commenced after an earlier "off-camera" assault by the complainant on the applicant. It was submitted that the primary Judge should have acquired evidence from the parties on the point or at least given the applicant the opportunity to lead evidence. That ground is without substance also.

The primary Judge watched the video recording referred to earlier. The applicant's version of events, advanced by his counsel from the…

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. Ryan

Details

AGLC: R v Ryan [2008] QCA 134
Case: [2008] QCA 134
Decision Date: 29 May 2008

CaseChat Overview and Summary

In the Court of Appeal, the applicant, Michael Stephen Ryan, appealed against his sentence for an unlawful assault causing bodily harm in company. The applicant had pleaded guilty to the charge and was sentenced to 18 months' imprisonment with a parole release date of 6 November 2008. The applicant had a history of domestic violence, property, and public disorder offences. The court needed to decide whether the primary judge had erred in failing to take into account the applicant's plea of guilty when passing sentence and whether the sentence was manifestly excessive.

The court found that the primary judge had not given sufficient consideration to the applicant's plea of guilty when passing sentence. The court held that the primary judge failed to reduce the sentence to account for the applicant's guilty plea, as required by section 13(1) of the Penalties and Sentences Act 1992 (Qld). The court also held that the sentence was manifestly excessive given the facts of the case, including the lack of premeditation and the relatively minor injuries suffered by the complainant. The court substituted a sentence of 12 months' imprisonment with a parole release date of 6 June 2008. The Court of Appeal allowed the appeal and set aside the sentence imposed below.

Orders