R v Swayn - [1998] QCA 171

[1998] QCA 171

COURT OF APPEAL

PINCUS JA
DERRINGTON J
WHITE J

CA No 59 of 1998

THE QUEEN

SWAYN, Patrick Lloyd Applicant

BRISBANE

DATE 08/05/98

JUDGMENT

WHITE J: The applicant pleaded guilty on 23 February 1998 in the Supreme Court at Rockhampton to one charge of grievous bodily harm on 27 September 1996 and on the following day, on a separate indictment, that on 24 May 1997 he unlawfully had possession of cannabis sativa, in excess of 500 grams.

The applicant was on bail in respect of the first charge when he committed the second offence. On 24 February 1998 he was sentenced to a period of imprisonment of five years in respect of the first charge and six months imprisonment cumulative upon the five years with respect to the possession of cannabis.

No recommendation for early parole was made. The applicant appeals against his sentences on three grounds:

1.That they were both generally manifestly excessive;
2.The penalty for the possession of cannabis ought to have been something other than a term of imprisonment or not to have been cumulative and;
3.That the failure to make a recommendation for parole earlier than the statutory scheme imposed a sentence which was manifestly excessive and failed to take into account mitigatory factors.

The applicant was aged 22 at the time of the offence and 23 when sentenced, having been born in September 1974. Initially, the applicant had been charged with attempted murder. The prosecution had offered to accept a plea of guilty to grievous bodily harm in August 1997. The applicant's plea of guilty to that offence, it seems, was on the morning of the trial.

The applicant has a minor previous criminal history. In 1992 he was convicted and fined in the Magistrate's Court at Blackall of wilful destruction to property and of being found on unlicensed premises whilst under the age of 18 years. In the Yeppoon Magistrate's Court in April 1996 he was convicted of possession of a dangerous drug and a thing used in connection with smoking a dangerous drug.

The applicant's younger brother was charged jointly with him on the first indictment and pleaded guilty to assault occasioning bodily harm and was sentenced to six months imprisonment. No issue of parity arises here. Two incidents occurred involving the complainant, one Daniel Maguire, a 22 year old young man on the night of 27 September 1996.

The applicant and complainant were in a nightclub in Yeppoon and the applicant and probably the complainant, had been drinking. A fight broke out between the applicant and the complainant. The applicant maintained that the complainant hit him first, but there were no witnesses to that incident. The complainant has no recollection of the events of the evening in so far as they involved the assaults.

At the time witnesses noticed the scuffle, the applicant was lying on top of the complainant in the bar area and they saw the applicant's younger brother run across the room and join 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 Swayn

Details

AGLC: R v Swayn [1998] QCA 171
Case: [1998] QCA 171
Decision Date: 08/05/98

CaseChat Overview and Summary

The case of R v Swayn involved the applicant, Patrick Lloyd Swayn, who pleaded guilty to one charge of grievous bodily harm and another charge of unlawfully possessing cannabis sativa in excess of 500 grams. Swayn was on bail for the first charge when he committed the second offence and was subsequently sentenced to a period of imprisonment of five years for the grievous bodily harm charge and six months imprisonment cumulative upon the five years for the possession of cannabis. The applicant appealed against his sentences on the grounds that they were generally manifestly excessive, that the penalty for the possession of cannabis ought to have been something other than a term of imprisonment or not to have been cumulative, and that the failure to make a recommendation for parole earlier than the statutory scheme imposed a sentence which was manifestly excessive and failed to take into account mitigatory factors.

The Court of Appeal considered the legal issues and examined the severity of the grievous bodily harm charge, the nature of the cannabis possession charge, and the overall sentencing approach taken by the sentencing judge. The Court concluded that the sentence for the grievous bodily harm charge was not manifestly excessive, given the serious consequences for the victim and the need to deter such conduct. However, the Court found the sentence for the cannabis possession charge to be excessive, given the minor previous conviction and sentencing trends in the trial division for offences of this kind. The Court ordered a fine of $2,000 to be paid within three months and in default six months' imprisonment. The sentence for the grievous bodily harm charge was upheld, and the sentence for the cannabis possession charge was varied as proposed by Justice White. The Court also discussed the appropriate procedure for recording a conviction when imposing a fine, and it was determined that a conviction should be recorded in respect of both offences.

The final orders of the Court were to allow the application for leave to appeal against sentence only with respect to the sentence imposed for the possession of cannabis sativa, to vary the sentence for the possession of cannabis sativa by imposing a fine of $2,000 to be paid within three months and in default six months' imprisonment, and to record a conviction in respect of both offences.

Orders