R v Wiggins

[2003] QCA 367

SUPREME COURT OF QUEENSLAND

CITATION:	R v Wiggins [2003] QCA 367
PARTIES:	R v WIGGINS, Kyle Peter (applicant/appellant)
FILE NO/S:	CA No 134 of 2003 DC No 1638 of 2002 DC No 1900 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED EX	27 August 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2003
JUDGES:	McMurdo P, Dutney and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence granted. Appeal allowed and instead of the sentence imposed for the offence of grievous bodily harm substitute a sentence of six years and nine months imprisonment
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANOUS MATTERS – where applicant convicted of grievous bodily harm and sentenced to seven years imprisonment – where offence committed whilst applicant on suspended sentence – whether learned primary judge erred in the manner in which he approached the sentence – where learned primary judge failed to make allowance for the applicant’s limited co-operation in the administration of justice
R v Bryan ex parte A-G (Qld) [2003] QCA 133; CA Nos 339 and 319 of 2002, 19 March 2003, followed R v Marshall [1994] QCA 161; CA No 78 of 1994, 20 May 1004, followed
COUNSEL:	P J Callaghan for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant was convicted after a nine-day trial of the offence of grievous bodily harm. He was sentenced to seven years' imprisonment and 599 days was declared as presentence custody. He applies for leave to appeal against sentence and contends that the learned trial Judge erred in the manner in which he approached the sentence. He no longer contends that the sentence was manifestly excessive.

The applicant was originally charged with a count of grievous bodily harm (count 1) alternatively assault occasioning bodily harm (count 2) and grievous bodily harm with intent (count 3). During the trial the learned primary Judge ordered that there was no case to answer on count 1. The applicant was acquitted on count 2. He was also acquitted on count 3 but convicted of the alternative count of doing grievous bodily harm simpliciter. The maximum penalty is 14 years' imprisonment.

Early in the trial his counsel made admissions on his behalf had been extensive negotiations with the prosecution as to the final form of the indictment. The applicant had indicated that he was willing to plead guilty to one count of doing grievous bodily harm simpliciter in full discharge of the indictment. That offer was not accepted by the prosecution and it is on that count alone that he was ultimately convicted. There was, however, a factual dispute as to whether the applicant had the knife in his possession or whether he disarmed the complainant and then…