Anderson v Pollitt

[1996] QCA 566

[1996] QCA 566

COURT OF APPEAL

DAVIES JA DOWSETT J WHITE J

CA No 419 of 1996
D J ANDERSON
v.

MARK ANTHONY POLLITT Applicant

BRISBANE
..DATE 14/11/96
141196 T 3/PEH M/T COA 284/96
DAVIES JA: The applicant pleaded guilty in the Magistrates
Court at Cooktown on 10 September last on one count of
aggravated assault and two of assault occasioning bodily harm,
all on 19 August. On each of these offences he was sentenced to
four months imprisonment to be served concurrently.

The applicant is 32 years of age, having been born on 18 May 1964. The complainant is his de facto wife. They have a five year old son. They have been living together on and off for about nine years. About four months before the date of these offences the complainant had separated from the applicant because, as she put it, she could not handle living with him any longer.

On 14 May she obtained a Domestic Violence Order against him. It is not entirely clear whether they had resumed cohabitation at the time of these offences. On the night of these offences they were with others at the Sovereign Hotel in Cooktown celebrating a birthday. The applicant had consumed a huge amount of alcohol on his own admission and was plainly very intoxicated.

Whilst at the hotel they had an argument, apparently because the applicant wanted the complainant to take their son home and she wished to stay a little longer.

...
141196 T 3/PEH M/T COA 284/96
DAVIES JA: The aggravated assault occurred on the journey home.
It involved the applicant tackling the complainant and bringing
her to the ground. The first of the assaults occasioning bodily
harm involved a similar instance although on this occasion the

complainant was injured when her head struck the ground. This

dazed her for a time and she had swelling to her left temple.

After they arrived home the applicant again attacked the complainant grabbing her by the throat and choking her. He let go only after she pretended she was unconscious. It appears that during the course of that assault he bit her on both elbows and twisted her arm behind her back. He also spat in her face and chest area approximately five times.

The applicant has no relevant criminal history, although he has been convicted and sentenced to a term of imprisonment for a drug-related offence in 1984. The most serious aspect of this case is, of course, the choking incident. It was a vicious and quite serious assault on a defenceless woman. In my view the Magistrate was entitled to think that it justified a short sentence of imprisonment.

Of course, in the applicant's favour was his plea of guilty. Plainly his prospect of rehabilitation depends very much on overcoming an alcohol problem which he accepts he has, but for which so far he has not obtained any treatment. It appears that he is given to domestic violence, at least when he is drunk, as the Domestic Violence Order testifies.

141196 T 3/PEH M/T COA 284/96

On the material before the Magistrate, in my view, he was entitled to impose a sentence which he did, although no doubt he could, in the exercise of his sentencing discretion, have imposed a non-custodial sentence. I would, therefore, refuse the application.

DOWSETT J: I agree.

WHITE J: I agree also.

DAVIES JA: The application is refused.

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