Hofmeir v Brewster - [1997] QCA 68

[1997] QCA 068

COURT OF APPEAL
DAVIES JA
McPHERSON JA

WHITE J

CA No 549 of 1996
R E HOFMEIR
v.

CALVIN JOHN BREWSTER

BRISBANE
..DATE 20/03/97
200397 T8/JAP/20 M/T COA 45/97
WHITE J: The applicant seeks leave to appeal against sentence
which was imposed upon him in the Magistrates Court at Ipswich
on 19 November 1996 after he pleaded guilty to one count of
assault occasioning bodily harm.

The Magistrate imposed a sentence of nine months' imprisonment suspended after four months with an operational period of three years. He ordered the applicant to pay compensation in the sum of $1500 to the complainant within 12 months; in default three months' imprisonment.

The applicant maintains that in all the circumstances the sentence was manifestly excessive. The applicant is aged 33 years with a minor prior history of wilful damage to property which occurred on 6 February 1994 and for which he was fined $200 with no conviction recorded and for which he was ordered to pay the sum $2,999.64 by way of compensation.

The applicant and the complainant had resided in a de facto relationship for some nine and a half years. They had separated some weeks prior to the incident giving rise to this application for leave to appeal. On that day the complainant visited the applicant's residence to collect their 22 month old son who had been visiting the applicant.

A discussion commenced between the applicant and the complainant about their relationship and when the complainant indicated she did not wish the relationship to continue the applicant became upset and threatened her. The complainant hit the applicant with a plastic bottle. The applicant pushed the complainant in 200397 T8/JAP/20 M/T COA 45/97

the chest and she tried to back away. She fell on to a lounge as she backed away and the applicant commenced to punch her with a closed fist to the face. She was struck a number of times then fell to the floor and curled up to protect herself.

The applicant continued to punch at her several times and she protected herself by raising her arms. He then realised the enormity of what he had done and desisted. He then gave the complainant assistance, rang the ambulance which was unable to attend immediately so he took her to the hospital and the police were called there. He cooperated with the police.

The complainant suffered quite severe injuries that included two black eyes, a swollen lip, a broken nose, extensive bruising to the face, arms and chest and a hairline fracture to the jaw. She suffered severe pain for a week or so and had difficulty eating normally for several weeks thereafter.

The learned stipendiary Magistrate noted the applicant's early plea of guilty, his remorse which was demonstrated by the assistance which he rendered to the complainant and that he had no previous criminal history which included violence. But he also commented on the extent of the injury caused and the prolonged nature of the assault…

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.

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Details

Case: [1997] QCA 68
Decision Date: 20/03/1997

CaseChat Overview and Summary

In the case of Hofmeir v Brewster, the applicant, Calvin John Brewster, sought leave to appeal against a sentence imposed by the Magistrates Court at Ipswich. The sentence was for a single count of assault occasioning bodily harm, with a term of nine months imprisonment suspended after four months, an operational period of three years, and an order for compensation of $1,500 to the complainant within 12 months, in default of which there would be an additional three months' imprisonment. The applicant argued that the sentence was manifestly excessive in all the circumstances. The applicant had a minor prior history of wilful damage to property, which occurred in 1994 and resulted in a fine of $200 with no conviction recorded, along with an order for compensation of $2,999.64. The applicant and the complainant had been in a de facto relationship for nine and a half years before the incident. The complainant visited the applicant to collect their 22-month-old son, and a discussion about their relationship turned into an assault when the complainant indicated she did not wish to continue the relationship. The applicant pushed and punched the complainant, resulting in severe injuries, including two black eyes, a swollen lip, a broken nose, extensive bruising, and a hairline fracture to the jaw.

The court was required to determine whether the sentence imposed by the Magistrate was manifestly excessive and whether it should be altered. The court noted the applicant's early plea of guilty, his remorse demonstrated by his assistance to the complainant, and the lack of a previous criminal history involving violence. However, the court also considered the extent of the injuries caused, the prolonged nature of the assault, and the need for a sentence that might serve as a deterrent to others. The court observed that the total sentence imposed, including the suspended sentence, compensation order, and operational period, seemed to be on the high side. The court also noted the disadvantages of a suspended sentence, as it did not allow for a graduated form of release, such as home detention.

The court decided that the appropriate sentence would be to remove the order for a suspended sentence and retain the term of imprisonment of nine months. The court held that the sentence should not be altered beyond removing the suspended sentence component. The appeal was allowed to the extent of removing the part of the order suspending the sentence after four months for an operational period of three years. The warrant for the applicant's arrest was to lie in the Registry for seven days.

Orders