Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Vennard v Delorain P/L as Trustee for the Delorain Trust [2010] QCA 309 de Jersey CJ, Fraser JA and Philippides J 5/11/2010

General Civil Appeal from the Supreme Court, Trial Division — Conveyancing — Statutory Obligations or Restrictions Relating to Contract for Sale — Protection of Purchasers — By contract dated 19 September 2007 the appellant agreed to buy a proposed lot in a community title scheme to be established by the respondent — In subsequent correspondence the appellant purported to terminate the contract under various statutory provisions, misrepresentation or that the contract was void for uncertainty — On Appeal — The appeal was confined to challenges to the primary judge’s conclusions that the appellant was not entitled to avoid or not complete the contract pursuant to the Land Sales Act 1984 (Qld) or the Body Corporate and Community Management Act 1997 (Qld) — The land the subject of the proposed scheme was identified under s 213 of BCCMA and annexed plans by the residential address “Delor Vue Apartments” at “1 Deloraine Close, Cannonvale” — Section 21 of LSA does not require a clear description of the proposed lot, but merely that it be clearly “identified” — The lot to be purchased was clearly identified in the disclosure under s 21 — Decisions upon s 49 of the Building Units and Group Titles Act 1980 (Qld) support the conclusion that s 21 of LSA did not require any more elaborate or precise identification — Section 25(1) of LSA conferred a right upon the appellant to avoid the contract for non-compliance with s 21(1) only if the appellant had been “materially prejudiced by the failure” to clearly identify the lot to be purchased — The onus lay upon the appellant to prove that she was materially prejudiced by the failure and she failed to fulfil that onus — Shortly after this Court’s decision in Bossichix on 5 June 2009, BCCMA was amended — The appellant did not seek a declaration that she had validly terminated the contract because of non-compliance with the former s 212 — Accordingly the only legal proceeding which qualifies under s 362A(3)(b)(ii) is a proceeding which relates to the lawfulness of a purported cancellation before 5 June 2009 — The application for a declaration concerning the former s 212 did not fit that description because the claimed declaration did not relate to any purported cancellation — Under s 362A(2), that amendment also applies in relation to legal proceedings which were started before the commencement of the amendment, subject only to the effect of s 362A(3) — That exception applies only in relation to one category of lawful cancellations, namely, a cancellation because of non-compliance with the former s 212 — The Amendment Act afforded to purchasers in the appellant’s position the same right to fourteen days’ notice of the establishment of the community management scheme which had been the object of the former s 212 — The Amendment Act narrowly confined the exception to the retrospective operation of the new provision — I would hold that s 362A(3)(b)(i) does not comprehend a cancellation which was expressed to be made only under and for non-compliance with provisions other than the former s 212 — Upon that construction the new s 212 applied in relation to the contract to the exclusion of former s 212 — The appellant had no entitlement to terminate the contract under the new s 212 — HELD: Appeal dismissed with costs.

Legal Services Commissioner v Wright [2010] QCA 321 (10/6248) Brisb Holmes and White JJA and McMurdo J 19/11/2010

General Civil Appeal from the Supreme Court, Trial Division — Professions and Trades — Lawyers — Remuneration — Taxation and Assessment of Costs — The firm of DM Wright & Associates performed the conveyancing work upon the sale of a house which was the subject of proceedings in the District Court between a former de facto couple, one of whom was the respondent’s client — Ms Wright, a practising solicitor, charged $7,179.76 for this work, which she paid to herself from the balance of the proceeds of sale held in her trust account — Most of the burden of her fees fell upon someone who had not retained her, whom for the purposes of the judgment is called Ms A — Ms A complained to the Legal Services Commissioner about the fee and asked Ms Wright for an itemised account which Ms Wright refused to give — The Commissioner then brought these proceedings, seeking that Ms A was at all material times a client of the respondent for the purposes of Part 3.4 of the Legal Profession Act 2007 (Qld) or alternatively, that she was a “third party payer” under that Part — Both arguments failed — On Appeal — The argument that Ms A was a client of the respondent was not pressed — The issue is whether Ms A was a “third party payer” as that term is defined in s 301 of the Act — The primary facts were uncontroversial — Ms A brought proceedings in the District Court against her former de facto partner Mr A — The respondent acted for Mr A — The matter was settled and consent orders made in August 2008 — One of the consent orders provided for the distribution of the proceeds from the sale of a house that was registered in the name of Mr A alone, however both parties were borrowers of the mortgage debt — The respondent had been retained by Mr A in relation to the sale — On 28 August 2008, the respondent paid the relevant sum of $7,179.76 to herself and distributed the remainder in the shares of 75% and 25% according to the consent order — Where the line is to be drawn, in defining who apart from the client should be entitled to an assessment, has been decided by the Parliament in unambiguous terms: it is according to the existence or otherwise of a legal obligation to pay the costs — The order here was unambiguously one which required both Mr A and Ms A to cause the proceeds of sale to be distributed — The obligation of Ms A, to cause the proceeds of sale to be paid in the various ways according to the order, was enforceable against her — The legal obligation to cause the proceeds of sale to be applied in accordance with the order had its basis and thereby its enforceability primarily from the force of the order itself, as well as its contractual force — It was thereby an obligation enforceable not only by a money claim, but also by proceedings to compel compliance with the Court’s order — Held: Appeal allowed, Declare that upon the proper construction of the LPA that Ms A was at all material times a “third party payer” who was entitled to apply for an assessment of the legal costs charged and drawn by the respondent from the proceeds of sale of the real property, No order as to costs

Mirvac Queensland Pty Ltd v Wilson [2010] QCA 322 Brisb Margaret McMurdo P, Fraser JA and Jones J 19/11/2010

General Civil Appeal from the Supreme Court, Trial Division — Conveyencing —Statutory Obligations or Restrictions Relating to Contract for Sale — Protection of Purchasers — Obligations on Vendor: Disclosure, Warnings and Like Matters — By contract dated 4 December 2007, Ms Wilson had agreed to purchase a proposed lot in a staged community titled scheme development — The contractual process was governed by the requirements of Chapter 5 Part 2 of the Body Corporate and Community Management Act 1997 (Qld) — The learned primary judge found Ms Wilson to have been materially prejudiced by changed information and declared the contract was validly cancelled — On Appeal — The development project included the construction of a proposed building identified by the name “Farringford” — The community title scheme was established upon the completion of Stage 1 on 27 April 2009 — Ms Wilson acknowledged that prior to the signing of the contract she received various documents as required by the Act including a disclosure statement dated 4 December 2007 of some 215 pages — The disclosure statement in Chapter 1 dealt with the setting up of a body corporate to which Mirvac would provide certain assets including “4.4…General…(b) CCTV, cameras and security monitoring equipment…” — In Chapter 3 of the disclosure statement a schedule of standard inclusions and finishes for a typical apartment in the Farringford building included an entry “CCTV: Provided to select locations within the common property” — On 6 August 2009, Mirvac provided a further statement as required by s 214 of the Act to rectify inaccuracies in the original disclosure statement — This was received by Ms Wilson on 11 August 2009, with Ms Wilson giving notice that she was cancelling the contract on 24 August 2009 — Foremost amongst the concerns raised by the respondent was the absence in the further statement of the provision of CCTV, cameras and security monitoring equipment to which reference had been made in clause 4.4 of the disclosure statement — In this instance there was inconsistency in the information contained in the two statements — The buyer was entitled to regard the most recent statement as the warranted information — The inaccuracy was a result of the seller’s conduct — There is no statutory provision obliging the buyer to make inquiries to resolve any inaccuracy and there are good reasons why no such obligation should be inferred — Imposing an obligation to inquire may well lead to uncertainty, either as to the facts upon which an election could be made or whether the right of election continues to exist — The time within which the election must be made, if it is not to be lost, is relatively short — But at any time prior to cancellation, the seller has the power to remove any inaccuracy — The Farringford building was in close proximity to a public arena, parklands, car-parks and a transport hub — At times the area would be used by large numbers of non-residents — Mirvac conceded that the security system was promoted as part of its marketing effort — The security of her residence was a very important matter for the respondent as was acknowledged by Mirvac in the course of argument — The material prejudice for the purpose of s 214 (and s 217), has to be assessed in the context of the buyer’s personal circumstances being required to complete the contract on its changed terms — The evaluation of whether any disadvantage or detriment reaches the level of material prejudice such as to warrant cancellation of the contract, must be objectively determined in accordance with community standards — The finding of the learned primary judge that “viewed objectively, a person in the (respondent’s) circumstances in August 2009 would be disadvantaged in a substantial way” was clearly open on the evidence — HELD: Appeal dismissed with costs.

State of Queensland v RAF [2010] QCA 332 Margaret McMurdo P, White JA and McMeekin J 26/11/2010

General Civil Appeal from the Supreme Court, Trial Division — Limitation of Actions — Extension or Postponement of Limitation Periods — Disability — Unsoundness of Mind — What Constitutes — The respondent commenced proceedings on 12 February 2007 for damages against the State of Queensland for personal injury consequent upon the sexual abuse that she had suffered at the hands of her step father — The abuse commenced when the respondent was aged 10 years — She is now 48 years old — There were two applications before the primary judge — In one the respondent sought a declaration pursuant to s 29 of the Limitation of Actions Act 1974 (Qld) that she was under a relevant disability at all material times and hence the limitation period did not run against her — In the other she sought an extension of the limitation period pursuant to s 31 of the Act, asserting that a material fact of a decisive character was not within her means of knowledge until a date within a year of commencing proceedings — She was successful in both applications — On Appeal — It is common ground that the respondent was under the disability of infancy until 5 June 1980, her 18th birthday — Thereafter the respondent contends, and the primary judge found, that the relevant disability was unsoundness of mind — The primary judge’s decision was based on the evidence of an experienced psychiatrist, Professor James — The appellant’s criticism of his Honour’s finding centred on evidence elicited in cross examination — The relevant passage is as follows: “So at that stage she wouldn’t be suffering from – would she, from an unsoundness of mind?– At – at that stage probably not.” — I have no difficulty with the proposition that to constitute unsoundness of mind under the Act the condition from which the respondent was suffering needs to be more or less continuous — The relevant test is whether the periods of any “lucidity” were such as to enable her to manage her affairs in relation to these proceedings in the manner that a reasonable person would achieve — I do not think it possible or desirable to attempt to lay down any rule, but plainly evidence that brief periods of amelioration of the disability occurred, too short to enable comprehension of all relevant matters or action upon them, would not remove the protection provided by the section as such an interpretation would hardly meet the beneficial purpose of the statute — When one looks at the evidence overall I think it clear that Professor James was not suggesting, by the answer I have referred to, that there was any such lifting or amelioration of the respondent’s condition so as to enable her to reasonably manage her affairs in relation to the matter of the prosecution of a case for damages arising out of the sexual abuse that she had suffered — It is not to the point to argue that the respondent can do some of the normal things in life, nor that she managed to complain to the police about her step father — It is quite evident that Professor James considered that the episode of reporting the matter to the police did not evidence any significant alteration of the respondent’s condition, but rather at the most, a transient amelioration, and not one giving rise to an ability to effectively pursue her interests — In my view there was ample evidence on which the finding by the primary judge of a disabling “unsoundness of mind” could be based — In order to succeed on an application to have the limitation period extended the applicant must show that “a material fact of a decisive character relating to the right of action was not within [her] means of knowledge” until a date after, in this case, 12 February 2006: s 31(2)(a) of the Act — There must be evidence to establish the right of action: s 31(2)(b) of the Act — The material fact relied on was that the respondent was unaware that there existed evidence in the Departmental records that her step father had admitted to the conduct of which she complained — That record showed that there had been no referral of the matter to the police for the prosecution of the step father’s grossly criminal conduct towards her, but rather an arrangement was entered into that the step father be permitted to remain in the home with her on his undertaking to seek psychiatric treatment from a named specialist — The records suggest that there was no monitoring of the situation or attempt to ascertain whether her welfare was in fact protected by the arrangement entered into — It was not contended that there was not evidence to establish the right of action — It was common ground that that disclosure occurred after the critical date — The primary judge concluded that “[g]iven her psychiatric condition and her stated knowledge she could not reasonably have been expected to seek legal advice or pursue an action before she did.” — It needs to be borne in mind that such findings by primary judges are not to be too readily interfered with — HELD: Appeal dismissed with costs.

Metroplex Management P/L v Brisbane City Council & Ors [2010] QCA 333 (09/14513) Brisb Margaret McMurdo P, Chesterman JA and Atkinson J 26/11/2010

Application for Leave to Appeal from the Planning and Environment Court — Environment and Planning — Powers on Appeal — Other Powers — On 24 July 2006 the applicant sought preliminary approval from the Brisbane City Council pursuant to s 3.1.5 of the Integrated Planning Act 1997 for the development of the site commonly known as the Wacol Army Barracks — The Brisbane City Council did not decide the application and the applicant appealed to the Planning and Environment Court (“P & E Court”) against the deemed refusal of the application — The appeal in the P & E Court occupied 14 days and the subsequent delivery of substantial written submissions — The learned primary judge found that his power in determining the appeal and in deciding whether to approve part only of Metroplex’s application was: “subject to an implied limitation. Where a matter is before the court, that limitation is to be derived, by analogy, from s 4.1.52. If the court is not to consider a change to an application which is more than minor and if the court’s power to impose conditions is to be read as subject to an implied limitation that those conditions cannot effect more than a minor change, it would seem appropriate to imply the same limitation with respect to the court’s other decisionmaking powers, including the power to approve in part.” — On Appeal — His Honour’s decision preceded the decision of this Court in SLS Property Group Pty Ltd v Townsville City Council & Anor; Catchlove & Ors v Townsville City Council & Ors [2009] QCA 380 which is inconsistent with the primary judge’s construction of s 3.5.11 and the effect on that section of s 4.1.52 — In SLS Property Group, this Court refused leave to appeal from an order of the P & E Court declaring valid the Townsville City Council’s decision to approve only stage 1 of an application for a material change of use of vacant land consisting of stage 1 and stage 2 — The P & E Court did not accept the applicants’ contention that the Council had no power to approve only the first stage of the application — Keane JA, with whom Holmes JA and Daubney J agreed, also rejected the approach contended for by the applicants that s 4.1.52(2)(b) informed the correct construction of s 3.5.11(1)(b) — Keane JA considered that: “… Rather, s 4.1.52(2)(b) is concerned to ensure that the earlier stages of an application are not set at nought by a late change to the application… For a viable argument to arise that the case is outside s 3.5.11(1), there must be features of the development which is approved which justify characterising that development as something materially different from that which was applied for, other than the mere fact that it is part of what was applied for.” — Before determining the construction of s 3.5.11(1) and its relationship with s 4.1.52(2)(b), Keane JA in SLS Property Group referred to the P & E Court judge’s reasoning in the present case — Keane JA distinguished the present case from SLS Property Group because of the judge’s factual findings that Metroplex’s proposed development was “integrated” and that “as a matter of fact and degree” the deleted part of the proposed development was the “most significant employment generator” in it — I consider that this Court’s construction in SLS Property Group of s 3.5.11(1) and its interaction with s 4.1.52(2)(b) is correct — In my opinion, this Court should construe s 3.5.11 as it did in SLS Property Group — It follows that his Honour erred in law in considering that the power under s 3.5.11 to approve an application in part was qualified on an appeal to the P & E Court by the requirement of s 4.1.52(2)(b) that the court must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change — HELD: Application for leave granted, Appeal allowed, Set aside the order of the primary judge, Matter remitted to the P & E Court to be determined according to law.

CRIMINAL APPEALS

R v AAM; ex parte A-G (Qld) [2010] QCA 305 McMurdo P, White JA and Cullinane J 5/11/2010

Reference under s 672A Criminal Code — Pardon, Commutation of Penalty, Reference on Petition for Pardon and Inquiry after Conviction — Reference to Court — The appellant pleaded guilty in the Toowoomba Magistrates Court to several property offences and breaching a probation order between 2001 and 2003 — On 2 June 2009, the appellant, with the authority of her formal guardians who are her parents, petitioned Her Excellency, Ms Penelope Wensley AO, Governor of Queensland, under s 36 Constitution of Queensland 2001, for a pardon in respect of all of the offences contained in the appellant’s Queensland criminal history as of 2 June 2009 — On 31 March 2010, the Hon Cameron Dick MP, Attorney-General and Minister for Industrial Relations, referred the case to the Court of Appeal under s 672A(a) Criminal Code — The appellant is now 41 years old — It is common ground that, at least since childhood, she has had a significant intellectual impairment — It is common ground in this appeal that the psychiatric evidence at the two Mental Health Court hearings for other offences not the subject of this appeal unequivocally established both that the appellant’s intellectual disability affecting her fitness to plead pre-dated the offences the subject of this appeal, and that her intellectual disability is permanent — The Director of Public Prosecutions cannot refer a patient who is charged only with simple offences to the Mental Health Court (s 240(3) and s 247(2) Mental Health Act) — It seems unsatisfactory that the laws of this State make no provision for the determination of the question of fitness to plead to summary offences — The legislature may wish to consider whether law reform is needed to correct this hiatus in the existing criminal justice system — It is common ground that this Court should infer, from the material before, and the findings of, the Mental Health Court that the appellant was unfit to plead at the time she pleaded guilty to and was sentenced for the offences the subject of this appeal — She therefore did not enter these guilty pleas in the exercise of a free choice — HELD: Allow the appeals, Convictions or findings of guilt in respect of specified offences be set aside, Instead in each case verdicts of acquittal be entered.

R v Melling & Baldwin [2010] QCA 307 McMurdo P, Holmes JA and Applegarth J 5/11/2010

Appeal against Conviction and Sentence from the District Court — Miscarriage of Justice — Generally — Sentence Manifestly Excessive or Inadequate — The appellants, Melling and Baldwin, were arraigned before a jury on an indictment which charged them jointly with one count of torturing Terence Murray; one count of entering Murray’s dwelling house with intent to commit an indictable offence, with various circumstances of aggravation; and one count of doing grievous bodily harm to Murray with intent to do grievous bodily harm — Each of the three counts on the indictment referred, by way of margin note, to ss 7 and 8 of the Criminal Code 1899 (Qld) — The appellants pleaded guilty to the counts of torture and burglary — Both men were convicted by the jury of grievous bodily harm with intent — The Crown prosecutor, in addressing the jury, did not differentiate between the two appellants or make any reference to accessorial liability — On Appeal — In order for the Crown to succeed in establishing criminal responsibility on the part of both appellants under s 7(1)(a), it was necessary that against each there be proved an act causing injuries amounting to grievous bodily harm, as well as the necessary intent — There was no evidence as to when that injury was inflicted and no basis on which a jury could be satisfied as to which of the two men had inflicted it — Apparently through oversight, no evidence was adduced from Dr Hazelton, the brain injury rehabilitation unit director where Mr Murray was admitted, as to whether the facial injuries met the definition of “grievous bodily harm” — I do not think that Mr Copley’s argument that they were life-threatening because they prevented ventilation through the nose or mouth is tenable, although it is certainly ingenious — The evidence was clear that Mr Murray had suffered the skull fracture, which unquestionably did amount to grievous bodily harm, at a time when he was in the company of both men; and a jury could infer, from the evidence of their conduct towards him, that whoever inflicted the injury did so with the necessary intent, while the other aided (by assistance in restraining or detaining Mr Murray, or at the very least, encouragement) with the knowledge of that intent — It was not essential that the Crown establish which of the two was the principal actor and which the aider — Both could properly have been convicted on the same evidence on a Crown case advanced pursuant to a combination of s 7(1)(a) and s 7(1)(c) — But although both s 7 and s 8 were referred to in the indictment, that was not the basis on which the prosecutor sought the conviction, nor was it the subject of direction — The evidence was not such as to permit guilty verdicts on a case that each man was criminally responsible as having committed the act constituting the offence — On the evidence put before the jury here, verdicts of guilty could properly have been entered on the count of grievous bodily harm with intent, on the basis that one appellant committed the offence, aided by the other — It is important that there is no suggestion that in a new trial any markedly different evidence would be presented — Instead, the Crown will, presumably, embark on some particularisation in its opening and address as to the appellants’ liability as principal and aider, without it being necessary to identify who performed which role — It should be noted that the trial judge in this case made a valiant attempt, against the apparent indifference of both Crown and defence counsel, to obtain particulars of the charges of grievous bodily harm with intent and torture — It is, I consider, necessary to reconsider the sentences imposed in respect of the torture and burglary charges — Unfortunately, because of the focus on the most serious conviction, relatively little attention was paid to the facts constituting those offences and any possible allowance for co-operation seems to have been overlooked — In the circumstances of this case, having regard to the limited period of time over which the appellants’ abuse of Mr Murray occurred, the fact that their actions were, although appallingly cruel, not motivated by an abstract pleasure in cruelty, and their lack of any previous convictions for violence and their co-operation, I would set aside the sentence of eight years imprisonment on the torture count and, in each case, substitute a sentence of six years imprisonment without any recommendation for eligibility for parole — In imposing that sentence, I would not distinguish between the appellants: any credit which might be given to Melling for his additional co-operation in identifying the location of his firearm is off-set by his greater age and the probability that Baldwin was led into the offending by him — HELD: (Abridged) Verdicts against each appellant of grievous bodily harm with intent set aside, New trial is ordered on that count, Sentences reduced on all counts except for the three years imprisonment imposed for the burglary offence which was confirmed.

R v Fardon [2010] QCA 317 Muir and Chesterman JJA and McMeekin J 12/11/2010

Appeal against Conviction and Sentence from the District Court — Verdict Unreasonable or Insupportable Having Regard to the Evidence — The appellant was convicted of rape after a two day trial and on 14 May 2010, was sentenced to 10 years’ imprisonment — It was declared, pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld), that he had been convicted of a serious violent offence — The rape offence was particularised by the prosecution as an act of anal penetration with the penis or another body part — The appellant was sentenced on the basis that the anal penetration was digital — In an interview with a police officer on 3 April 2008, the complainant gave evidence to the following effect — She was born in 1947 and was in a sexual relationship with the appellant at the time of the alleged rape — They had known each other since she was 13 and they had been “sort of teenage lovers” — The complainant, who had been drinking heavily, was a willing participant in sexual intercourse which continued “for quite some time” — The complainant told the appellant that she had “enjoyed it because [she] did but [she] didn’t realise that, that he done what he did to [her] up the backside” — The complainant later said she was “paralytic drunk” at the time of the incident — She explained that she meant she wasn’t herself, she “was sort of drunk” — On Appeal — There were some obvious difficulties with the prosecution case — The complainant, as the transcript reveals, suffered from some intellectual impairment — The extent of the impairment and its effect, if any, on the complainant’s memory and comprehension were not the subject of evidence — It was apparent however that the complainant’s disability was productive of a lack of coherence in the narrative provided by her in her police interview — From the balance of her interview, it is clear that the complainant made no objection on 2 April 2008 to any of the sexual activity in which she and the appellant had engaged that day — Of more concern, however, is the disjointed nature of the interview, its inconsistencies, general lack of coherence, and the difficulty in identifying when relevant matters referred to by the complainant are said to have occurred or are likely to have occurred — The combination of the evidentiary difficulties identified above leads me to conclude that after making allowance for the limited advantage enjoyed by the jury, who saw a video recording of the police interview and of the complainant’s evidence-in-chief and cross-examination, there is a “significant possibility” that an innocent person has been convicted — I do not consider that it would be appropriate to order a retrial — The difficulties with the complainant’s evidence identified above would be present on any retrial — In my view the appellant has been in prison for a period as long as, if not longer than, any term of actual imprisonment likely to be imposed were he to be convicted on a retrial — HELD: Appeal allowed, Conviction set aside, Verdict of acquittal be entered.

R v Scheers [2010] QCA 318 Holmes and Fraser JJA and McMeekin J 16/11/2010

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The applicant was sentenced on 25 March 2010 to terms of imprisonment totalling 16 years on offences contained in four indictments — The applicant belonged to a motorcycle club, and all of the offences were committed in connection with his membership of it and/or in the company of other members — The offences charged on the first indictment occurred in July 2005 — Soon after the presentation of an indictment against him in 2007, the applicant intimated that he would plead guilty to the charges it contained, of extortion, assault occasioning bodily harm in company and wilful damage — He was sentenced to 12 months imprisonment on each of the assault and damage charges, and two and a half years in respect of the extortion — While on bail in respect of those charges, the applicant committed the offences the subject of the second indictment — The applicant pleaded guilty to entering premises with intent to commit an indictable offence, for which he was sentenced to two years imprisonment, and wilful damage and common assault, which resulted in sentences of 12 months imprisonment — The offences the subject of the third indictment were committed while the applicant was on bail in respect of the charges involved in the first two indictments — These offences were committed against a man, Holmes, who was involved in a drug transaction in which the motorcycle club had lost $40,000 — The applicant used a knife to sever one of Holmes’ ears and cut off the bottom half of his other ear; then he sliced across his forehead and down his cheek — As a result of those events, the applicant was charged with and pleaded guilty to kidnapping, assault occasioning bodily harm while armed and in company, and grievous bodily harm with intent to disfigure — He was sentenced to four years imprisonment in respect of the charges of kidnapping and assault, and 13 years imprisonment in respect of the grievous bodily harm with intent — The applicant was to face a committal for those charges in September 2008, but Holmes advised the police by text message that he would not attend to give evidence and disappeared — It transpired that the applicant had paid Holmes not to give evidence, acting through family members and a former fellow prison inmate — As a result, the applicant was charged with and pleaded guilty on an ex officio indictment to attempting to pervert the course of justice — He was sentenced to three years imprisonment, to be served cumulatively upon the sentence of 13 years imprisonment — On Appeal — There are undoubtedly a number of features of this case which warranted a very substantial sentence for the offence of grievous bodily harm with intent, particularly given that that sentence had also to reflect the other offences committed by the applicant — On the other hand, the offence, although simply appalling in the cold-bloodedness of its commission, did not have the ongoing consequences for the victim physically or psychologically or in terms of his capacity to earn income involved in other such cases — Notwithstanding the absence of any very compelling sign of remorse, his pleas of guilty on all four indictments were of considerable significance in facilitating the administration of justice; they avoided a series of trials and the exposure of the victims of his conduct to the ordeal of giving evidence — The sentence of 13 years for grievous bodily harm with intent was, in my view, excessive by comparison with the sentences imposed in the precedents cited — More particularly, it is difficult to see how the mitigating circumstance of the pleas of guilty was properly reflected in a total sentence of 16 years imprisonment — HELD: Application granted, Appeal allowed, Sentence of 13 years for the offence of grievous bodily harm with intent is set aside and a sentence of 10 years is substituted.

R v Hargraves & Stoten [2010] QCA 328 Muir and Fraser JJA and Atkinson J 23/11/2010