R v SAV; ex parte - [2006] QCA 328

SUPREME COURT OF QUEENSLAND

CITATION: R v SAV; ex parte A-G (Qld) [2006] QCA 328
PARTIES: R
v
SAV
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)
FILE NO/S: CA No 202 of 2006
DC No 3651 of 2005
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by A-G (Qld)
ORIGINATING
COURT: District Court at Brisbane
DELIVERED ON: 1 September 2006
DELIVERED AT: Brisbane
HEARING DATE: 23 August 2006
JUDGES: McMurdo P, Wilson and Atkinson JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER: 1. Appeal allowed

2. Set aside the sentence imposed on each count
3. On count 1, order that, subject to compliance with

s 95 and s 96 Penalties and Sentences Act 1992 (Qld), the respondent is sentenced to 12 months imprisonment and three years probation on the terms and conditions set out in s 93 Penalties and Sentences Act

4. On count 2, the respondent is sentenced to five years
imprisonment suspended after serving 12 months
imprisonment with an operational period of five years

5. The period of 173 days from 4 November 2004 until
26 April 2005 during which the respondent has been in
pre-sentence custody is declared to be imprisonment
already served under the sentence

6. A warrant is issued for the arrest of the respondent
but it is to lie in the registry for seven days

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 - where respondent was sentenced to 12 months imprisonment on one count of assault occasioning bodily harm whilst armed and four years imprisonment suspended after serving 173 days with an operational period of four and a half years on one count of doing grievous bodily harm - where respondent's two year old son received injuries resulting in significant brain damage and permanent physical disabilities - where sentencing judge took into account many mitigating factors - where Attorney-General contends that sentence imposed on count 2 is manifestly inadequate - whether respondent's sentence was within the appropriate range in all the circumstances
Criminal Code 1899 (Qld), s 669A
Penalties and Sentences Act 1992 (Qld), s 93, s 95, s 96
R v Amituanai (1995) 78 A Crim R 588, applied
R v FJ; ex parte A-G (Qld) [2005] QCA 15; CA No 338 of
2004, 9 February 2005, applied
R v K [2003] QCA 368; CA No 168 of 2003, 27 August
2003, applied
R v Sittczenko; ex parte Cth DPP [2005] QCA 461; CA No
221 of 2005, 9 December 2005, applied
R v Smith [1997] QCA 350; CA No 29 of 1997, 10 October
1997, applied
R v Solway; ex parte A-G (Qld) [1995] QCA 374; CA No
164 and No 187 of 1995, 22 August 1995, applied
R v W [1999] QCA 202

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 SAV; ex parte

Details

AGLC: R v SAV; ex parte A-G (Qld) [2006] QCA 328
Case: [2006] QCA 328
Decision Date: 1/09/2006

CaseChat Overview and Summary

The case involved the Attorney-General of the Commonwealth appealing against the sentence of the respondent, SAV, who had been convicted on two counts: one of assault occasioning bodily harm whilst armed and another of doing grievous bodily harm. The respondent's two-year-old son suffered significant brain damage and permanent physical disabilities as a result of the attack. The respondent was sentenced to 12 months imprisonment for the first count and four years imprisonment, suspended after 173 days, with an operational period of four and a half years for the second count. The Attorney-General argued that the sentence imposed for the second count was manifestly inadequate.

The court had to determine whether the sentence imposed by the trial judge was appropriate and within the range of sentences that could be considered just and appropriate in the circumstances. The court considered the severity of the harm caused to the child, the respondent's mitigating factors, and whether the sentence was an acceptable response to the crime committed. The appeal focused on the adequacy of the sentence for the grievous bodily harm charge, given the significant harm caused to the victim.

The court found that the sentence imposed for the grievous bodily harm was manifestly inadequate, taking into account the severe and long-lasting impact on the victim. The court considered that the sentence did not adequately reflect the gravity of the offence and the harm caused. Consequently, the appeal was allowed, and the sentence was set aside. The case was remitted for the respondent to be re-sentenced on the second count.

Orders

Orders of the court

1. Appeal allowed

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.