R v Swayn; ex parte A-G (Qld) - [2009] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

R v Swayn; ex parte A-G (Qld) [2009] QCA 81

PARTIES:

R
v
SWAYN, Anthony William
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 348 of 2008
DC No 229 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

9 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2009

JUDGES:

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

ORDERS:

1.   Appeal allowed

2.   The sentence of eight months imprisonment wholly suspended be set aside and a sentence of fifteen months imprisonment suspended after four months with an operational period of two years be substituted

3.   A warrant to issue for the arrest of the respondent to lie in the Registry for seven days

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where the respondent was sentenced to eight months imprisonment wholly suspended after being found guilty of one count of grievous bodily harm – where the respondent was tried with his brother – where the respondent’s brother was sentenced to three years imprisonment suspended after eight months with an operational period of three years on the same count – where the respondent’s brother carried out the actual attack while the respondent stood outside – whether the difference in the sentences imposed gave rise to the appearance of injustice – whether sentence was manifestly inadequate

Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Casey [2003] QCA 152, considered
R v Cuff [2001] QCA 351, distinguished
R v Kitching[2003] QCA 539, considered
R v Melano, ex parte Attorney-General [1995] 2 Qd R 186; [1994] QCA 523, cited
R v O'Grady; ex parte A-G (Qld) (2003) 138 A Crim R 273; [2003] QCA 137, considered
R v Tupou; ex parte A-G (Qld) [2005] QCA 179, considered
R v Verheyen [2008] QCA 150, considered

COUNSEL:

A W Moynihan SC, with L P Brisick, for the appellant
B G Devereaux SC, with J B Benjamin, for the respondent

SOLICITORS:

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

MUIR JA: Introduction

The appellant Attorney-General appeals against a sentence imposed on the respondent in the District Court on 27 November 2008 of eight months imprisonment with a parole release date of 27 November 2008 for an offence of grievous bodily harm. The respondent was tried with his brother, Patrick Swayn, on one count of burglary with violence while armed in company, one count of grievous bodily harm and one count of assault occasioning bodily…

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.

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Details

Case: [2009] QCA 81
Decision Date: 9 April 2009

CaseChat Overview and Summary

The case involved the respondent, who was found guilty of one count of grievous bodily harm. He was sentenced to eight months imprisonment wholly suspended by the trial judge. The respondent was tried with his brother, who was sentenced to three years imprisonment suspended after eight months with an operational period of three years for the same count. The respondent's brother carried out the actual attack while the respondent stood outside. The respondent appealed against his sentence, arguing that the difference in the sentences imposed gave rise to the appearance of injustice and that his sentence was manifestly inadequate.

The court needed to determine whether the difference in the sentences imposed created the appearance of injustice and whether the sentence imposed on the respondent was manifestly inadequate. The court considered the principles of sentencing, including the need for consistency in sentencing and the need to ensure that sentences reflect the gravity of the offence. The court also considered the role of the respondent in the offence and the need to deter future offending.

The court found that the difference in the sentences imposed did give rise to the appearance of injustice. The court held that the respondent's sentence was manifestly inadequate and that a more severe sentence was warranted. The court allowed the appeal and set aside the sentence of eight months imprisonment wholly suspended. In its place, the court substituted a sentence of fifteen months imprisonment suspended after four months with an operational period of two years. The court also ordered that a warrant to issue for the arrest of the respondent to lie in the Registry for seven days.

Orders

Orders of the court

1. Appeal allowed

2. The sentence of eight months imprisonment wholly suspended be set aside and a sentence of fifteen months imprisonment suspended after four months with an operational period of two years be substituted

3. A warrant to issue for the arrest of the respondent to lie in the Registry for seven days

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.

CITATION:	R v Swayn; ex parte A-G (Qld) [2009] QCA 81
PARTIES:	R v SWAYN, Anthony William (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 348 of 2008 DC No 229 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	9 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2009
JUDGES:	Muir and Fraser JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. The sentence of eight months imprisonment wholly suspended be set aside and a sentence of fifteen months imprisonment suspended after four months with an operational period of two years be substituted 3. A warrant to issue for the arrest of the respondent to lie in the Registry for seven days
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where the respondent was sentenced to eight months imprisonment wholly suspended after being found guilty of one count of grievous bodily harm – where the respondent was tried with his brother – where the respondent’s brother was sentenced to three years imprisonment suspended after eight months with an operational period of three years on the same count – where the respondent’s brother carried out the actual attack while the respondent stood outside – whether the difference in the sentences imposed gave rise to the appearance of injustice – whether sentence was manifestly inadequate Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Casey [2003] QCA 152, considered R v Cuff [2001] QCA 351, distinguished R v Kitching[2003] QCA 539, considered R v Melano, ex parte Attorney-General [1995] 2 Qd R 186; [1994] QCA 523, cited R v O'Grady; ex parte A-G (Qld) (2003) 138 A Crim R 273; [2003] QCA 137, considered R v Tupou; ex parte A-G (Qld) [2005] QCA 179, considered R v Verheyen [2008] QCA 150, considered
COUNSEL:	A W Moynihan SC, with L P Brisick, for the appellant B G Devereaux SC, with J B Benjamin, for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent