R v S - [1999] QCA 499

COURT OF APPEAL

[1999] QCA 499

de JERSEY CJ
McMURDO P

THOMAS JA

CA No 323 of 1999
THE QUEEN
v.

BRISBANE

..DATE 01/12/99

JUDGMENT
011299 T10/AW20 M/T COA 295/99

THE PRESIDENT: The applicant pleaded guilty in the Cairns District Court to six counts of housebreaking, two counts of attempted break and enter with intent and one count of grievous bodily harm. These offences were committed between 30 November 1998 and 27 March 1999.

As the offender was a child he had to be sentenced under The Juvenile Justice Act 1992 and a pre-sentence report was ordered. The applicant was sentenced on 27 August 1999 to six years detention for the offence of grievous bodily harm and to concurrent periods of detention ranging from one month to six months on the remaining property charges. It was ordered that he be released from detention after serving 50 per cent of that period.

The applicant is 15 years old and had a prior criminal history most of which occurred at about the same time as the offences the subject of this appeal. In January 1999 he was reprimanded for two counts of entering a dwelling house with intent and stealing. On 19 February 1999 he was placed on a good behaviour bond for six months without conviction for being drunk in a public place. The offence of grievous bodily harm constituted a breach of that order. On 24 March 1999 he was convicted of two counts of entering a dwelling house with intent on 2 March 1999, two counts of entering a dwelling house with intent on 19 November 1998, two charges of entering or being in a dwelling house and committing an indictable offence on 10 and 28 November 1998, one count of

2 JUDGMENT

011299 T10/AW20 M/T COA 295/99

unlawful use of a motor vehicle on 28 November 1998 and one count of receiving between 19 and 21 November 1998. He was convicted and placed on nine months probation and 100 hours community service. On the same day he was convicted of stealing and sentenced to probation and 100 hours community service and he was also dealt with for unauthorised dealing with shop goods by a reprimand.

The property offences the subject of this application totalled over $5,400 but in practical terms this application is only concerned with the most serious count, that of grievous bodily harm, the facts of which are as follows.

The complainant was a 26-year-old high school teacher who had been drinking with friends at the RSL. Some time after 1 a.m. the complainant had passed out in a garden in Lake Street. An eye witness saw the applicant nudge the complainant with his leg and foot and then kick him in the chest rolling him off the garden kerbing and onto the street whilst continuously kicking him towards the kerb.

The applicant and another smaller child kicked him about six or seven times. The complainant tried to push himself up off the ground but…

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 S

Details

AGLC: R v S [1999] QCA 499
Case: [1999] QCA 499
Decision Date: 1/12/1999

CaseChat Overview and Summary

In the case of R v S, the applicant, a 15-year-old child with a prior criminal history, pleaded guilty to multiple counts of housebreaking, attempted break and enter with intent, and grievous bodily harm. The grievous bodily harm charge involved a severe and unprovoked attack on a 26-year-old high school teacher, resulting in significant facial fractures and long-term injuries. The Cairns District Court sentenced the applicant to six years detention for the grievous bodily harm charge and concurrent periods of detention for the other offences, with an order for release after serving 50 per cent of the sentence.

The primary legal issue before the Court of Appeal was whether the six-year detention sentence imposed by the District Court was manifestly excessive. The applicant argued that a more appropriate sentence would be three and a half years detention, to serve 50 per cent. The Court reviewed several comparable cases involving grievous bodily harm and found that the sentence imposed, even considering the applicant's age and the nature of the offence, was outside the appropriate range. The Court considered that the six-year sentence did not align with other sentences for similar offences, particularly given the applicant's age and lack of prior convictions for violent offences.

The Court of Appeal held that the six-year detention sentence was manifestly excessive. While acknowledging the seriousness of the offence, the Court determined that a sentence of four and a half years detention, to serve 50 per cent, was appropriate. The Court emphasized the need for consistency in sentencing and cautioned that this decision should not be regarded as an upper limit, suggesting that higher sentences might be appropriate in the future for similar offences. The Court allowed the appeal, set aside the original sentence, and imposed a new sentence of four and a half years detention, to serve 50 per cent.

Orders