R v Weare - [2002] QCA 183

SUPREME COURT OF QUEENSLAND

CITATION:

R v Weare [2002] QCA 183

PARTIES:

R
v
WEARE, Arsun Daniel
(applicant)

FILE NO/S:

CA No 54 of 2002
DC No 588 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

31 May 2002

DELIVERED AT:

Townsville

HEARING DATE:

29 May 2002

JUDGES:

Williams JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

1. Grant the application and allow the appeal;
2. Vary the sentence imposed by the learned sentencing judge by ordering that the imprisonment be suspended after 12 months;
3. Fix an operational period of three and a half years.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM – SENTENCING – where applicant pleaded guilty to unlawfully doing grievous bodily harm and received a sentence of three and a half years imprisonment with no recommendation for early release – where victim was struck from behind with the branch of a tree causing serious damage to the victim’s eye – whether sentence manifestly excessive – term of imprisonment allowed to stand but ordered that it be suspended after 12 months with an operational period of 3 ½ years

Amituanai v R (1995) 78 A Crim R 588, considered
R v Biersteker [1995] QCA 266; CA No 134 of 1995, 18 May 1995, considered
R v Milnarek , unreported, Court of Appeal, Qld, 27 August 1992, considered
R v Wright [1998] QCA 184, CA No 131 of 1998, 16 June 1998, considered

COUNSEL:

A W Moynihan for the applicant
L J Clare for the respondent

SOLICITORS:

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

WILLIAMS JA: I agree with the reasons for judgment of Cullinane J and with the orders proposed.

CULLINANE J: The Applicant seeks leave to appeal against a sentence of three and a half years imprisonment imposed by the District Court at Townsville on 12 February 2002 for an offence of unlawfully doing grievous bodily harm. The applicant pleaded guilty to the offence which was committed on or about 5 June 2001 at Home Hill. There was no recommendation for eligibility for early release.

The applicant was born on 22 October 1981 and was thus 19 at the time of the offence.

He has some previous convictions but these do not include any offence of violence. His convictions are for street offences and drug offences.

The complainant, a 32 year old man, was at a hotel in Home Hill on the evening of 15^th June. In the course of the evening there had been something of an exchange between a group of people inside the hotel and a group of people outside. The applicant was with the group outside and it seems the complainant was with those 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 Weare

Details

AGLC: R v Weare [2002] QCA 183
Case: [2002] QCA 183
Decision Date: 31 May 2002

CaseChat Overview and Summary

The appeal in R v Weare involved the applicant who had pleaded guilty to an offence of unlawfully causing grievous bodily harm. The particulars of the offence were that the applicant had struck the victim from behind with a branch of a tree, causing serious damage to the victim’s eye. The sentence imposed by the sentencing judge was a term of imprisonment of three and a half years, with no recommendation for early release. The applicant sought to appeal against the sentence, arguing that it was manifestly excessive.

The legal issues before the court were whether the sentence imposed by the sentencing judge was manifestly excessive and whether the sentence should be varied in light of this argument. The court needed to consider the relevant principles of sentencing and whether the sentence imposed by the sentencing judge was outside the range of reasonable responses.

The court found that the sentence imposed by the sentencing judge was on the higher end of the range of sentences that could be imposed for the offence. However, the court found that the sentence was not manifestly excessive, as it was within the range of reasonable responses. The court did, however, find that the sentence was not appropriate in all of the circumstances of the case, as the operational period of the sentence was longer than necessary. The court therefore varied the sentence by ordering that the term of imprisonment be suspended after 12 months and that the operational period of the sentence be fixed at three and a half years. The applicant’s appeal was allowed and the sentence was varied as per the orders.

Orders

Orders of the court

1. Grant the application and allow the appeal;

2. Vary the sentence imposed by the learned sentencing judge by ordering that the imprisonment be suspended after 12 months;

3. Fix an operational period of three and a half years.

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 Weare [2002] QCA 183
PARTIES:	R v WEARE, Arsun Daniel (applicant)
FILE NO/S:	CA No 54 of 2002 DC No 588 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	31 May 2002
DELIVERED AT:	Townsville
HEARING DATE:	29 May 2002
JUDGES:	Williams JA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	1. Grant the application and allow the appeal; 2. Vary the sentence imposed by the learned sentencing judge by ordering that the imprisonment be suspended after 12 months; 3. Fix an operational period of three and a half years.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM – SENTENCING – where applicant pleaded guilty to unlawfully doing grievous bodily harm and received a sentence of three and a half years imprisonment with no recommendation for early release – where victim was struck from behind with the branch of a tree causing serious damage to the victim’s eye – whether sentence manifestly excessive – term of imprisonment allowed to stand but ordered that it be suspended after 12 months with an operational period of 3 ½ years Amituanai v R (1995) 78 A Crim R 588, considered R v Biersteker [1995] QCA 266; CA No 134 of 1995, 18 May 1995, considered R v Milnarek , unreported, Court of Appeal, Qld, 27 August 1992, considered R v Wright [1998] QCA 184, CA No 131 of 1998, 16 June 1998, considered
COUNSEL:	A W Moynihan for the applicant L J Clare for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent