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R v Barry

 

[1981] CCA 69

IN THE COURT OF CRIMINAL APPEAL

C.A. No. 34 of 1981

Mr. Justice Lucas S.P.J.

Mr. Justice D.M. Campbell

Mr. Justice Connolly

BRISBANE, 25 JUNE 1981

(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)

-------

THE QUEEN

v.

LINDSAY JOSEPH BARRY

(Applicant)

JUDGMENT

MR. JUSTICE LUCAS: This is an application for leave to appeal against sentence imposed upon the applicant on his plea of guilty to a charge of unlawful assault occasioning bodily harm. The applicant is a resident of Palm Island, and the matter was dealt with at the Magistrates Court at Palm Island on 4 February 1981. On that occasion the applicant was also charged with stealing, an offence to which he pleaded guilty and in respect of which the magistrate imposed a term of imprisonment of four months, and there is no appeal in respect of that sentence.

The Magistrate then went on to deal with the charge of assault occasioning bodily harm, and on that charge he imposed a sentence of six months' imprisonment to be served cumulatively with the sentence which he had imposed on the stealing charge.

The facts were that the applicant wished to engage the woman with whom he was living in a defacto relationship in conversation on the occasion of a dance which was held at the Island, and upon her refusal to stop and talk to him he struck her three times on the mouth with his closed fist. Her brother then intervened, with the result that the applicant fell to the ground, and when he got up he saw that her brother was having a fight with his brother, whereupon he picked up a stick and struck the complainant on the right hip. The injuries which were sustained as a result of this assault were described by the police prosecutor as being a laceration and swelling to her lower lip and a two - inch laceration to her right groin surrounded by an area of swelling and tenderness, and it was said that she was in pain from those injuries for several days after the incident.

It appears that the applicant and the complainant have been living in this de facto relationship for about four years and that it continued for about a month after this incident, then being terminated on grounds unconnected with this occurrence.

The applicant was 20 years of age and had no previous convictions. In my opinion the Magistrate gave insufficient attention to the fact of the applicant's age and to the fact that the had no previous convictions, and in those circumstances it seems to me that to impose a cumulative term and of six months for that assault which, while reprehensible did not result in serious injury, was excessive.

In my opinion the sentence imposed by the Magistrate on this charge should be set aside, and in lieu thereof the applicant should be sentenced to imprisonment for a term of five months, that term to be served concurrently with the term imposed on the stealing charge.

MR. JUSTICE D.M. CAMPBELL: I agree.

MR. JUSTICE CONNOLLY: I agree.

MR. JUSTICE LUCAS: That will be the order of the Court.

Close

Editorial Notes

  • Published Case Name:

    The Queen v Lindsay Joseph Barry

  • Shortened Case Name:

    R v Barry

  • MNC:

    [1981] CCA 69

  • Court:

    QCCA

  • Judge(s):

    Lucas SPJ, D M Campbell J, Connolly J

  • Date:

    25 Jun 1981

Litigation History

No Litigation History

Appeal Status

No Status