R v Yanner - [2003] QCA 427

SUPREME COURT OF QUEENSLAND

CITATION: R v Yanner [2003] QCA 427
PARTIES: R
v
YANNER, Murrandoo Bulanyi Mungabyi
(applicant)
FILE NO/S: CA No 146 of 2003
DC No 06 of 2003
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Townsville
DELIVERED EX 25 September 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 25 September 2003
JUDGES: Davies and Jerrard JJA and Holmes J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application for leave to appeal against sentence dismissed
CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where applicant convicted of assault occasioning bodily harm - where sentenced to six months imprisonment wholly suspended for two years - where, at time of conviction, applicant serving wholly suspended sentence of 18 months imprisonment - where learned sentencing judge ordered applicant to serve nine months of this suspended sentence - where criminal history of applicant one of intermittent violence of varying degrees - whether learned sentencing judge erred in exercise of his discretion in requiring the applicant to serve nine months of the wholly suspended sentence
Penalties and Sentences Act 1992 (Qld), s 147
COUNSEL: M J Byrne QC for applicant
M J Copley for respondent
SOLICITORS: Legal Aid Queensland for applicant
Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: On 10 April 2003 the applicant was convicted after a trial by jury of assault occasioning bodily harm on 8 December 2001. He was sentenced to six months imprisonment, wholly suspended for a period of two years. However at the time of his conviction, the applicant was serving a wholly suspended sentence of 18 months imprisonment, imposed for four assaults occasioning bodily harm, one of which had the aggravating circumstance of being committed in company. In respect to those sentences the learned sentencing judge on 10 April 2003, acting pursuant to Part 8 of the Penalties and Sentences Act, ordered that the applicant serve nine months of the suspended sentence. The applicant does not contest the wholly suspended sentence of six months imposed for the offences of which he was convicted on 10 April 2003, but seeks to contest the order by the learned sentencing judge pursuant to s147(1)(c) of the Act, that he serve nine months of his suspended sentence. In order to consider that question it is necessary to say something of the circumstances in which the offences the subject to the now activated suspended sentence were committed and also of the applicant's prior criminal history.

The offences the subject of activated suspended sentence, were committed in May 1997 and the suspended sentences were imposed after a trial on 30 July 1999. They were imposed, as I have already said, for four offences of assault occasioning bodily harm, one of them being in company.

At about the same time as the applicant committed these offences he…

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 Yanner

Details

AGLC: R v Yanner [2003] QCA 427
Case: [2003] QCA 427
Decision Date: 25/09/2003

CaseChat Overview and Summary

The case of R v Yanner involved an applicant who had been convicted of assault occasioning bodily harm and sentenced to six months imprisonment, wholly suspended for two years. At the time of this conviction, the applicant was already serving a wholly suspended sentence of 18 months imprisonment. The learned sentencing judge ordered the applicant to serve nine months of the 18-month suspended sentence. The applicant's criminal history was marked by intermittent violence of varying degrees. The primary legal issue was whether the sentencing judge erred in his exercise of discretion by requiring the applicant to serve nine months of the wholly suspended sentence.

The court examined the sentencing principles and the discretion available to the judge. It considered the nature and circumstances of the offence, the applicant's criminal history, and the appropriateness of the sentence imposed. The court held that the sentencing judge had not erred in his exercise of discretion. The judge had considered the relevant factors, including the applicant's history of violence and the need for the sentence to have a punitive and deterrent effect. The court found that the sentence was proportionate to the offence and did not constitute an error in the exercise of judicial discretion.

As a result of this reasoning, the application for leave to appeal against the sentence was dismissed. The court confirmed that the sentence imposed was appropriate and that there was no basis for interference with the discretion exercised by the sentencing judge. The applicant was required to serve nine months of the 18-month suspended sentence as ordered by the sentencing judge.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

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 Yanner [2003] QCA 427
PARTIES:	R v YANNER, Murrandoo Bulanyi Mungabyi (applicant)
FILE NO/S:	CA No 146 of 2003 DC No 06 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED EX	25 September 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2003
JUDGES:	Davies and Jerrard JJA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where applicant convicted of assault occasioning bodily harm - where sentenced to six months imprisonment wholly suspended for two years - where, at time of conviction, applicant serving wholly suspended sentence of 18 months imprisonment - where learned sentencing judge ordered applicant to serve nine months of this suspended sentence - where criminal history of applicant one of intermittent violence of varying degrees - whether learned sentencing judge erred in exercise of his discretion in requiring the applicant to serve nine months of the wholly suspended sentence
Penalties and Sentences Act 1992 (Qld), s 147
COUNSEL:	M J Byrne QC for applicant M J Copley for respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for respondent