R v Scheers - [2010] QCA 318

SUPREME COURT OF QUEENSLAND

CITATION:

R v Scheers [2010] QCA 318

PARTIES:

R
v
SCHEERS, Aaron Drew
(applicant)

FILE NO/S:

CA No 81 of 2010
DC No 386 of 2007
DC No 603 of 2007
DC No 16 of 2009
DC No 180 of 2009
DC No 127 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

16 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2010

JUDGES:

Holmes and Fraser JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Leave to appeal against sentence is granted;1.

The appeal is allowed;2.

The sentence of 13 years for the offence of grievous bodily harm with intent is set aside and a sentence of 10 years is substituted;3.

A period of 1070 days is declared as time already served under the sentence for grievous bodily harm with intent.4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to 16 years for offences contained in four indictments – where applicant pleaded guilty to grievous bodily harm with intent, assault occasioning bodily harm charges and kidnapping charges contained in indictment 3 – where applicant had cut off one of the complainant’s ears and severed another in the course of an enforcement action for a motorcycle gang – where applicant had, through prison contacts and family members, given the complainant money inducing him not to give evidence – where applicant pleaded guilty on an ex officio indictment (indictment 4) to the offence of attempting to pervert the course of justice – where applicant pleaded guilty to extortion, assault occasioning bodily harm and wilful damage charges contained in indictment 1 – where applicant pleaded guilty to entering premises with intent to commit an indictable offence, wilful damage and common assault charges contained in indictment 2 – where offences contained in indictments 2 and 3 were committed whilst the applicant was on bail for the offences contained in indictment 1 – where applicant sentenced to eight months imprisonment for contempt of court after refusing to give evidence in relation to indictment 4 at a Crime and Misconduct Commission hearing – where sentence for the grievous bodily harm with intent count structured to reflect the criminality of the remaining, less serious offences – where applicant sentenced to 13 years for the grievous bodily harm with intent count and three years for the attempting to pervert the course of justice count – where applicant argued that the grievous bodily harm suffered, while disfiguring, was not disabling – whether sentence manifestly excessive

R v Clements (1993) 68 A Crim R 167; [1993] QCA 245, cited
R v Eade[2005] QCA 148, considered
R v Keenan[2009] QCA 236, considered
R v King & Morgan; ex parte Attorney-General of Queensland[2002] QCA 376, considered

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 Scheers

Details

AGLC: R v Scheers [2010] QCA 318
Case: [2010] QCA 318
Decision Date: 16 November 2010

CaseChat Overview and Summary

The applicant, Scheers, was sentenced to 16 years in total for offences contained within four separate indictments. He pleaded guilty to a range of serious charges, including grievous bodily harm with intent, assault occasioning bodily harm, kidnapping, extortion, entering premises with intent to commit an indictable offence, wilful damage, common assault, and attempting to pervert the course of justice. The applicant sought leave to appeal against his sentence, arguing that the 13-year sentence for grievous bodily harm with intent was manifestly excessive.

The court was required to determine whether the sentence for the grievous bodily harm with intent count was manifestly excessive. This involved weighing the severity of the offence against the cumulative sentence imposed for all charges. The applicant contended that the disfigurement caused, while significant, did not result in a disabling injury. The court had to consider the totality of the applicant's offending and his criminal history, including the commission of serious offences while on bail and attempts to pervert the course of justice.

In allowing the appeal, the court held that the 13-year sentence for grievous bodily harm with intent was manifestly excessive. The court noted the seriousness of the offence but found that the severity of the sentence was disproportionate when considering the totality of the offending and the lesser seriousness of some of the other charges. The court substituted a sentence of 10 years for the grievous bodily harm with intent count and declared a period of 1070 days as time already served under that sentence.

The court granted leave to appeal against sentence, allowed the appeal, set aside the 13-year sentence for grievous bodily harm with intent, and substituted a sentence of 10 years for that offence. The court also declared a period of 1070 days as time already served under the original sentence for grievous bodily harm with intent.

Orders

Orders of the court

Leave to appeal against sentence is granted;1.

The appeal is allowed;2.

The sentence of 13 years for the offence of grievous bodily harm with intent is set aside and a sentence of 10 years is substituted;3.

A period of 1070 days is declared as time already served under the sentence for grievous bodily harm with intent.4.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Scheers [2010] QCA 318
PARTIES:	R v SCHEERS, Aaron Drew (applicant)
FILE NO/S:	CA No 81 of 2010 DC No 386 of 2007 DC No 603 of 2007 DC No 16 of 2009 DC No 180 of 2009 DC No 127 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	16 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	26 October 2010
JUDGES:	Holmes and Fraser JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Leave to appeal against sentence is granted;1. The appeal is allowed;2. The sentence of 13 years for the offence of grievous bodily harm with intent is set aside and a sentence of 10 years is substituted;3. A period of 1070 days is declared as time already served under the sentence for grievous bodily harm with intent.4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to 16 years for offences contained in four indictments – where applicant pleaded guilty to grievous bodily harm with intent, assault occasioning bodily harm charges and kidnapping charges contained in indictment 3 – where applicant had cut off one of the complainant’s ears and severed another in the course of an enforcement action for a motorcycle gang – where applicant had, through prison contacts and family members, given the complainant money inducing him not to give evidence – where applicant pleaded guilty on an ex officio indictment (indictment 4) to the offence of attempting to pervert the course of justice – where applicant pleaded guilty to extortion, assault occasioning bodily harm and wilful damage charges contained in indictment 1 – where applicant pleaded guilty to entering premises with intent to commit an indictable offence, wilful damage and common assault charges contained in indictment 2 – where offences contained in indictments 2 and 3 were committed whilst the applicant was on bail for the offences contained in indictment 1 – where applicant sentenced to eight months imprisonment for contempt of court after refusing to give evidence in relation to indictment 4 at a Crime and Misconduct Commission hearing – where sentence for the grievous bodily harm with intent count structured to reflect the criminality of the remaining, less serious offences – where applicant sentenced to 13 years for the grievous bodily harm with intent count and three years for the attempting to pervert the course of justice count – where applicant argued that the grievous bodily harm suffered, while disfiguring, was not disabling – whether sentence manifestly excessive R v Clements (1993) 68 A Crim R 167; [1993] QCA 245, cited R v Eade[2005] QCA 148, considered R v Keenan[2009] QCA 236, considered R v King & Morgan; ex parte Attorney-General of Queensland[2002] QCA 376, considered