R v McGrady[2001] QCA 302

COURT OF APPEAL

de JERSEY CJ

McPHERSON JA

WILLIAMS JA

CA No 44 of 2001

CA No 45 of 2001

THE QUEEN

v.

RAYMOND BARRY McGRADY and Appellant

STEVEN JAMES McGRADYApplicant

BRISBANE

DATE 27/07/2001

JUDGMENT

THE CHIEF JUSTICE:  I will deal first of all with the appeal against conviction brought by Raymond McGrady.  The jury's convicting the appellant of doing grievous bodily harm depended on the jury's accepting the evidence of the complainant, Mr Sandy, which was to the effect that both Raymond and his brother Steven assaulted him.  And, also, rejecting the evidence of Steven that it was he, Steven, alone, who carried out the assault.

Steven pleaded guilty to doing grievous bodily harm to Mr Sandy.  Raymond's grounds of appeal are essentially that the conviction is unsafe and perverse and there was oral mention this morning of a contention that the verdict was biased.  The only live issue for the jury was whether Raymond joined in the attack. 

Mr Sandy gave evidence that Raymond participated throughout until Craig Mason came along and intervened.  Steven said that after his and Raymond's initial verbal confrontation with Mr Sandy, he, Steven, stepped in and took over with Raymond then getting back into his car.

APPELLANT R McGRADY:  Your Honour - your Honour, I'd like to point out one more thing.

THE CHIEF JUSTICE:  Yes, all right.

APPELLANT R McGRADY:  That the witness, he never saw me or my brother on the scene - at the scene of the crime.

THE CHIEF JUSTICE:  Right.  Thank you.  Although he gave evidence to the contrary of that, but I note what you say.

Mr Sandy conceded problems with his memory following the attack but denied having had previous problems, acknowledging, however, that over previous years he had substantially abused alcohol.

The learned Judge cautioned the jury quite comprehensively about the need to look critically at Mr Sandy's evidence, to be, as the Judge put it, "very, very careful indeed".  There must, as his Honour said to the jury, "be dangers in being too quick to accept Mr Sandy's evidence".

The Judge drew attention to discrepancies within Mr Sandy's detailed accounts given at various times and properly directed the jury as to their possible significance.  He reminded the jury also of Dr Hall's confirmation, in his evidence, that alcohol "classically affects memory".  Notwithstanding this comprehensive caution, the jury accepted Mr Sandy's evidence.

On the other hand, the jury rejected Steven McGrady's evidence, excluding involvement on the part of his brother, the appellant.  The Judge referred likewise to discrepancies within Steven's evidence and properly directed the jury as to the possible significance of those discrepancies and, in relation to Steven's credibility, as to Steven's past convictions for offences involving dishonesty and violence.

The jury were carefully instructed by the learned Judge as to their task and, in relation to their assessment of the conflicting evidence of the complainant and Steven McGrady, they were given orthodox directions as to the lack of significance of Raymond's not having given evidence himself.

Proceeding reasonably, the jury were, in my view, entitled to accept the complainant's evidence and, consequently, find Raymond guilty.  I identify no flaw in the summing-up.  I would dismiss the appeal against conviction.

McPHERSON JA:  I agree.

WILLIAMS JA:  I agree.

THE CHIEF JUSTICE:  The appeal against conviction is dismissed.

...

THE CHIEF JUSTICE:  The applicants are brothers.  Steven pleaded guilty to doing grievous bodily harm to one, Sandy.  His brother, Raymond, pleaded not guilty and was convicted by a jury.  Steven gave evidence at Raymond's trial that he, Steven, was the only offender.  He was disbelieved by the jury.

The learned Judge sentenced each of the applicants to six years imprisonment.  The offence had its genesis in Steven's being asked to leave a party at a time when he was affected by liquor.  Later in the day he and Raymond were driving their respective vehicles about the neighbourhood.  In their possession they had at least an iron bar and a knife. 

They came upon the complainant householder Mr Sandy and beat him severely.  The Judge described the attack as a cowardly act of thuggery.  Weapons were, on Mr Sandy's account, used.

Evidence of residual consequences for Mr Sandy was scant, though he claimed subsequent problems with memory.  They may, however, have been the result of previous alcohol abuse.

Each of the applicants had a significant prior criminal history including convictions for acts of violence.  For example Raymond's included a rape conviction in 1995 for which he was sentenced to seven years imprisonment, and Steven's included a conviction in the same year for grievous bodily harm which attracted two years imprisonment.

The Judge acceded to the Crown Prosecutor's submission that six years imprisonment was appropriate.  He declined to declare the applicants serious violent offenders and, on the other hand, he declined to order early eligibility for parole.

As to Raymond, the Judge observed that there was no suggestion of remorse.  A mitigating aspect of Steven's guilty plea was, in the Judge's view, negated by his having given evidence favourable to Raymond which the jury disbelieved, that being an indication of Steven's lack of remorse.

Steven, additionally, had been granted bail after a previous trial adjournment which had led into a more stable period in his life and his counsel submitted that it would be harsh to return him to prison.

The Judge took account of that, but it was insufficient to dissuade him from imposing a substantial term of imprisonment. The Judge also noted that while Steven's criminal history was somewhat less serious than Raymond's, Steven might be, should be regarded as the instigator.

Steven complains now that the Judge failed properly to distinguish his position from that of his brother, and that a sentence of six years imprisonment was otherwise manifestly excessive.

In the outline of submissions prepared by Raymond's previous counsel, the focus tended to dwell on Raymond's deprived upbringing, previous problems with drugs and a stable domestic situation which had prevailed prior to imprisonment.

There was also emphasis on the part of both applicants on the limited evidence of residual effect upon the complainant.  Mr Hunter, for Steven, directly submitted that six years imprisonment should, generally, be reserved for cases of much more serious residual injury and disability, but as Justice Williams pointed out during the hearing, there were other countervailing aggravating circumstances in, for example, the applicant's being in company and with the use of weapons and their prior criminal histories.

It is also important, in my view, to have regard to section 9, subsections 3 and 4 of the Penalties and Sentences Act when one approaches previous decisions in relation to penalty for these offences, decisions which pre-dated the amendments to those sections.

The stark reality is that this was a serious unprovoked attack which could have had drastic ramifications for the complainant.  It was committed by persons with serious past criminal histories, including convictions for crimes of violence. 

The Judge gave careful consideration to the comparative positions of the applicants and I ultimately identify no error in his treating them the same way.  The sentences of six years imprisonment were, obviously, substantial, but not, in my view, in all the circumstances, manifestly excessive.  I would consequently refuse the applications.

McPHERSON JA:  I agree.

WILLIAMS JA:  I agree.

THE CHIEF JUSTICE:  The applications are refused.

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