R v Tyson - [2006] QCA 483

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tyson [2006] QCA 483

PARTIES:

R
v
TYSON, Elizabeth Anne
(applicant)

FILE NO/S:

CA No 261 of 2006
DC No 173 of 2006
DC No 371 of 2006
DC No 372 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED EXTEMPORE ON:

20 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2006

JUDGES:

de Jersey CJ, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. That the application be allowed
2. That the sentences imposed in the District Court on 8 September 2006 be varied in these respects:

(a) by substituting for the three years’ imprisonment imposed in respect of the count of doing grievous bodily harm, two years’ imprisonment

(b) by setting 8 July 2007 as the parole release date in lieu of 8 March 2008

(c) otherwise confirming the orders then made

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPLICATION TO REDUCE SENTENCE – where the applicant pleaded guilty to one count of unlawful wounding and one count of grievous bodily harm – where the applicant was sentenced to one year for the unlawful wounding and three years for the grievous bodily harm – where the sentences were to be served cumulatively – whether all mitigating features were appropriately considered – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 147

R v Friday [2005] QCA 440; CA No 261 of 2005, 30 November 2005, followed
R v Johnston [2004] QCA 12; CA No 263 of 2003, 6 February 2004, distinguished
R v Shillingsworth [2001] QCA 172, CA No 337 of 2000, 11 May 2001; [2002] 1 Qd R 527, cited

COUNSEL:

A W Moynihan SC for the applicant
B G Campbell for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: The applicant pleaded guilty to two offences; unlawful wounding committed in Townsville on the 7th of April 2005 and grievous bodily harm committed there on the 10th of February 2006. She was on the 8th of September 2006 sentenced in the District Court to one year's imprisonment for the wounding. She had served 57 days presentence custody in respect of that and another matter, so that could not be made the subject of a declaration. For the grievous bodily harm she was sentenced to three years' imprisonment cumulatively. The overall sentence was therefore four years.

The sentencing Judge fixed 8 March 2008 as the parole eligibility date, which was 18 months into the future. In fixing that date, however, he took account of the circumstance that the applicant had served 204 days' presentence custody in respect of the count of grievous bodily harm. He emphasised that the presentence custody was not again to be taken into account. The result is that…

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 Tyson

Details

AGLC: R v Tyson [2006] QCA 483
Case: [2006] QCA 483
Decision Date: 20 November 2006

CaseChat Overview and Summary

The case of R v Tyson involved the defendant, Tyson, who pleaded guilty to one count of unlawful wounding and one count of grievous bodily harm. The sentences imposed were one year for the unlawful wounding and three years for the grievous bodily harm, to be served cumulatively. Tyson applied to the court to reduce the sentences, arguing that the sentence was manifestly excessive and that not all mitigating features were appropriately considered. The court was required to determine whether the sentences were excessive and whether the mitigating factors were adequately taken into account.

The court considered the principles of sentencing and the factors relevant to the case, including the nature and circumstances of the offences, the character of the offender, and the impact on the victim. The court also reviewed the mitigating factors presented, such as Tyson's background and the circumstances leading to the offences. The court found that the original sentences were indeed excessive and that not all mitigating features were appropriately considered. The court emphasised the importance of proportionality in sentencing and the need to ensure that sentences reflect the gravity of the offence and the individual circumstances of the offender.

As a result of the court's findings, the application to reduce the sentence was allowed. The court varied the original sentences by substituting the three years' imprisonment imposed for the grievous bodily harm with two years' imprisonment. The court also set the parole release date to 8 July 2007, in lieu of 8 March 2008, and otherwise confirmed the orders made by the District Court on 8 September 2006. The court's decision reflects the need for careful consideration of all mitigating factors and the importance of proportionality in sentencing.

Orders

Orders of the court

1. That the application be allowed

2. That the sentences imposed in the District Court on 8 September 2006 be varied in these respects:

(a) by substituting for the three years’ imprisonment imposed in respect of the count of doing grievous bodily harm, two years’ imprisonment

(b) by setting 8 July 2007 as the parole release date in lieu of 8 March 2008

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 Tyson [2006] QCA 483
PARTIES:	R v TYSON, Elizabeth Anne (applicant)
FILE NO/S:	CA No 261 of 2006 DC No 173 of 2006 DC No 371 of 2006 DC No 372 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED EXTEMPORE ON:	20 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2006
JUDGES:	de Jersey CJ, Jerrard and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. That the application be allowed 2. That the sentences imposed in the District Court on 8 September 2006 be varied in these respects: (a) by substituting for the three years’ imprisonment imposed in respect of the count of doing grievous bodily harm, two years’ imprisonment (b) by setting 8 July 2007 as the parole release date in lieu of 8 March 2008 (c) otherwise confirming the orders then made
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPLICATION TO REDUCE SENTENCE – where the applicant pleaded guilty to one count of unlawful wounding and one count of grievous bodily harm – where the applicant was sentenced to one year for the unlawful wounding and three years for the grievous bodily harm – where the sentences were to be served cumulatively – whether all mitigating features were appropriately considered – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 147 R v Friday [2005] QCA 440; CA No 261 of 2005, 30 November 2005, followed R v Johnston [2004] QCA 12; CA No 263 of 2003, 6 February 2004, distinguished R v Shillingsworth [2001] QCA 172, CA No 337 of 2000, 11 May 2001; [2002] 1 Qd R 527, cited
COUNSEL:	A W Moynihan SC for the applicant B G Campbell for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent