R v Thomason; ex parte A-G (Qld) - [2011] QCA 9

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thomason; ex parte A-G (Qld) [2011] QCA 9

PARTIES:

R
v
THOMASON, Floyd Samson Henare
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 229 of 2010
DC No 305 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

11 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2011

JUDGES:

Chief Justice, Chesterman and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The appeal is allowed;

2. The sentence imposed in the District Court is set aside and in lieu thereof the following orders are made:

a. The respondent is sentenced to six years imprisonment for the offence of grievous bodily harm;

b. The respondent is declared to be convicted of a serious violent offence; and

c. That 71 days spent in pre-sentence custody between 1 July 2010 and 9 September 2010 is declared time already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCE – OFFENCES AGAINST THE PERSON – ACTS INTENDING TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY – SENTENCE – respondent attacked stranger from behind in public place with knife – complainant suffered life-threatening injuries – respondent intoxicated with alcohol at the time – respondent continued to harass complainant after attack – respondent left scene and did not surrender to police – respondent aged 18 at time of incident – respondent pleaded guilty and sentenced to four and a half years imprisonment with parole eligibility after 14 and a half months – whether sentence manifestly inadequate – whether serious violent offence declaration should be made

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES TO BE APPLIED BY APPELLATE COURT TO CROWN APPEAL – whether a serious violent offence declaration should be made when it was not imposed by the lower court

Penalties and Sentences Act 1992 (Qld), s 9, Pt 9A

R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited

R v Bryan;ex parte A-G (Qld)(2003) 137 A Crim R 489; [2003] QCA 18, followed
R v Dietz[2009] QCA 392, cited
R v Eveleigh [2003] 1 Qd R 398; [2002] QCA 219, considered
R v Henriott[2004] QCA 346, considered
R v Honeysett; ex parte A-G (Qld)[2010] QCA 212, cited
R v Johnstone[2004] QCA 12, cited
R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, applied
R v Mikaele[2008] QCA 261, considered
R v Nguyen[2006] QCA 542, cited
R v Price [2006] QCA 180, distinguished
R v Taylor and Napatali; ex parte A-G (Qld) (1999) 106 A Crim R 578; [1999] QCA 323, cited
R v Wiggins[2003] QCA 367, cited

COUNSEL:

A W Moynihan SC…

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: [2011] QCA 9
Decision Date: 11/02/2011

CaseChat Overview and Summary

In the case of R v Thomason, the respondent, aged 18 at the time of the incident, attacked a stranger from behind in a public place with a knife, causing the complainant life-threatening injuries. The respondent was intoxicated with alcohol during the attack and continued to harass the complainant post-incident. The respondent subsequently left the scene and did not surrender to the police. He pleaded guilty to grievous bodily harm and was sentenced to four and a half years imprisonment with parole eligibility after 14 and a half months. The Attorney-General of Queensland appealed against the sentence, arguing it was manifestly inadequate and sought the imposition of a serious violent offence declaration.

The legal issues before the court were whether the sentence was manifestly inadequate and whether a serious violent offence declaration should be made despite it not being imposed by the lower court. The court had to consider the principles applicable to appeals by the Crown against sentence and the gravity of the offence, including the nature of the attack, the vulnerability of the victim, the respondent's intoxication, and his failure to surrender. The court needed to determine if the sentence and the absence of a serious violent offence declaration represented a substantial miscarriage of justice.

The court found the sentence to be manifestly inadequate and allowed the appeal. It set aside the original sentence and imposed a six-year imprisonment term, declared the respondent convicted of a serious violent offence, and declared that 71 days spent in pre-sentence custody between 1 July 2010 and 9 September 2010 was time already served under the sentence. The court considered the attack to be of extreme gravity, the respondent's intoxication and subsequent actions exacerbating the severity of the crime, and the need for the sentence to reflect the seriousness of the offence and deter similar conduct in the future.

Orders

Orders of the court

1. The appeal is allowed;

2. The sentence imposed in the District Court is set aside and in lieu thereof the following orders are made:

a. The respondent is sentenced to six years imprisonment for the offence of grievous bodily harm;

b. The respondent is declared to be convicted of a serious violent offence; and

c. That 71 days spent in pre-sentence custody between 1 July 2010 and 9 September 2010 is declared time already served under the sentence.

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 Thomason; ex parte A-G (Qld) [2011] QCA 9
PARTIES:	R v THOMASON, Floyd Samson Henare (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 229 of 2010 DC No 305 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	11 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2011
JUDGES:	Chief Justice, Chesterman and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The appeal is allowed; 2. The sentence imposed in the District Court is set aside and in lieu thereof the following orders are made: a. The respondent is sentenced to six years imprisonment for the offence of grievous bodily harm; b. The respondent is declared to be convicted of a serious violent offence; and c. That 71 days spent in pre-sentence custody between 1 July 2010 and 9 September 2010 is declared time already served under the sentence.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCE – OFFENCES AGAINST THE PERSON – ACTS INTENDING TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY – SENTENCE – respondent attacked stranger from behind in public place with knife – complainant suffered life-threatening injuries – respondent intoxicated with alcohol at the time – respondent continued to harass complainant after attack – respondent left scene and did not surrender to police – respondent aged 18 at time of incident – respondent pleaded guilty and sentenced to four and a half years imprisonment with parole eligibility after 14 and a half months – whether sentence manifestly inadequate – whether serious violent offence declaration should be made CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES TO BE APPLIED BY APPELLATE COURT TO CROWN APPEAL – whether a serious violent offence declaration should be made when it was not imposed by the lower court Penalties and Sentences Act 1992 (Qld), s 9, Pt 9A R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Bryan;ex parte A-G (Qld)(2003) 137 A Crim R 489; [2003] QCA 18, followed R v Dietz[2009] QCA 392, cited R v Eveleigh [2003] 1 Qd R 398; [2002] QCA 219, considered R v Henriott[2004] QCA 346, considered R v Honeysett; ex parte A-G (Qld)[2010] QCA 212, cited R v Johnstone[2004] QCA 12, cited R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, applied R v Mikaele[2008] QCA 261, considered R v Nguyen[2006] QCA 542, cited R v Price [2006] QCA 180, distinguished R v Taylor and Napatali; ex parte A-G (Qld) (1999) 106 A Crim R 578; [1999] QCA 323, cited R v Wiggins[2003] QCA 367, cited
COUNSEL:	A W Moynihan SC…