R v Ryan; Ex Parte - [2000] QCA 401

[2000] QCA 401

COURT OF APPEAL

de JERSEY CJ
PINCUS JA
THOMAS JA

CA No 187 of 2000

THE QUEEN

JONATHON DOUGLAS RYAN Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 28/09/2000

JUDGMENT

THOMAS JA: This is an appeal by the Attorney-General against a sentence imposed for two counts of assault occasioning bodily harm. The offences were committed at about 1 a.m. on 13 November 1999 in front of the casino in Brisbane. On each offence he was concurrently sentenced to two years' probation and, in addition, 200 hours community service. Convictions were recorded.

The circumstances are that in the early hours of 13 November 1999 the complainant, who was drunk and disorderly, was escorted from the casino by security officers. That group passed by the respondent who had previously been ejected. The respondent abused the security officers, indicating to them that they should let the complainant go. When the complainant was released at the bottom of the stairs he turned and walked up to the respondent. For no apparent reason he swung a punch at the respondent but missed by a considerable distance. The respondent them retaliated by pushing the complainant and struck him a heavy blow to the head with a closed fist. The complainant fell to the ground and, as he tried to sit up, the respondent kicked him in the head. He then lay on the ground immobile, upon which the respondent ran up to him and delivered a further kick to the head.

Video cameras record that the kick was of such force that the complainant's head and shoulders lifted and moved sideways as a result. One of the security officers described the kick as one that might be delivered to a soccer ball. Several security officers then rushed to restrain the respondent and, in the ensuing tussle the respondent struck the second complainant a couple of blows to the head and chest. That constituted the second offence. The respondent was then detained and in due course arrested.

The injuries suffered by the principal complainant were bruising in the area of the right eye and chipping of his two front teeth. The security guard suffered some general bruising to his face and some sinus pain. It is perhaps surprising that greater physical harm did not result. However, fortunately for both complainant and the respondent the case is only one of assault occasioning bodily harm.

When interviewed about an hour later the respondent admitted his actions but denied kicking the complainant a second time. He said that he had been drinking and felt sympathetic with the complainant, and had called out as a gesture of friendship. He accepted that his reaction to the complainant's punch was "probably unreasonable".

The respondent was 23 years old at the time. He has no previous criminal convictions of any significance, his history being confined to convictions for insulting words in 1994 and behaving in a disorderly manner, obstructing police and unlawful destruction of property in 1996. He was in…

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; Ex Parte

Details

AGLC: R v Ryan; Ex Parte [2000] QCA 401
Case: [2000] QCA 401
Decision Date: 28/09/2000

CaseChat Overview and Summary

In the case of the Queen versus Jonathon Douglas Ryan, the Attorney-General of Queensland, as the appellant, appealed against the sentence imposed on Ryan for two counts of assault occasioning bodily harm. The incident occurred outside a Brisbane casino in the early hours of November 13, 1999, where Ryan assaulted a complainant who had been escorted from the casino by security officers. Ryan, who had been ejected from the casino earlier, abused the security officers and retaliated against the complainant, striking him and delivering several kicks to his head. Ryan was sentenced to two years' probation and 200 hours of community service for each offence. The appeal focused on the severity of the sentence and whether it adequately addressed the need for general deterrence.

The primary legal issue was whether the sentence was inconsistent with the pattern of sentencing in similar cases and whether it sufficiently addressed the aspect of general deterrence. The Court of Appeal needed to determine if the sentence was within an acceptable range and whether it was appropriate given the circumstances of the case, including Ryan's lack of significant prior convictions, his good employment history, and the Crown Prosecutor's concession that a wholly suspended sentence would be within range.

The Court of Appeal concluded that while the sentence seemed light, it was within a fair range for cases of this kind. The Court noted that Ryan had no significant prior convictions, had a good work history, and had shown a positive attitude towards the community-based orders. The Court also considered Ryan's youth, lack of premeditation, and the plea of guilty as mitigating factors. Given these circumstances and the Crown Prosecutor's concession, the Court found that it would not be appropriate to increase the sentence or impose a custodial sentence at that stage. The appeal was dismissed, with the Court emphasizing the importance of avoiding second jeopardy and the need for vigorous restraint of drunken violence.

Orders