R v Samad

[2012] QCA 63

SUPREME COURT OF QUEENSLAND

CITATION:

R v Samad [2012] QCA 63

PARTIES:

R
v
SAMAD, Mohammed Abdus
(applicant)

FILE NO/S:

CA No 12 of 2012
DC No 1156 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2012

JUDGES:

Muir JA and Margaret Wilson AJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to five counts of common assault, four counts of assault occasioning bodily harm and two counts of assault occasioning bodily harm whilst armed – where applicant received a head sentence of three years imprisonment for the two counts of assault occasioning bodily harm, suspended after four months for an operational period of three years – where lesser concurrent sentences were imposed for the other offences – where applicant contends that the sentencing judge misapprehended the maximum penalty for one of the assaults occasioning bodily harm – where the offences involved a gross breach of trust and extended over a long period – whether the sentencing judge’s misapprehension as to the maximum penalty applicable to one of the offences had an affect on the fixing of the head sentence and the sentence for that particular offence – whether sentence manifestly excessive in all the circumstances

Criminal Code 1899 (Qld), s 320A(2)
Criminal Law Amendment Act 1997 (No 3 of 1997)(Qld), s 59(2)

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

COUNSEL:

L Falcongreen for the applicant
S P Vasta for the respondent

SOLICITORS:

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

1. MUIR JA:  I agree that the application for leave to appeal should be refused for the reasons given by Margaret Wilson AJA.

1. MARGARET WILSON AJA:  The applicant pleaded guilty to five counts of common assault, four counts of assault occasioning bodily harm and two counts of assault occasioning bodily harm whilst armed.  He was sentenced on 19 December 2011.  Two of the assault occasioning bodily harm offences attracted the head sentence of three years imprisonment, suspended after four months for an operational period of three years.  Lesser concurrent sentences were imposed for the other offences.

1. He seeks leave to appeal against sentence on two grounds –

(a)that the sentencing judge misapprehended the maximum penalty for one of the assaults occasioning bodily harm;

(b)        that the sentence was manifestly excessive.

The facts

1. The applicant lived with his wife and seven children.  He was the step-father of four of the children, and the natural father of the other three.

1. The applicant committed the offences between June 1996 and December 2004.  the complainants were three of the applicant’s step-children, all boys, two of…