McKinnon v Lorraine

[1997] QCA 324

COURT OF APPEAL

[1997] QCA 324

PINCUS JA
McPHERSON JA
de JERSEY J

CA No 235 of 1997

ADAM DREW McKINNON

v.

BRYCE VICTOR LORRAINE  Applicant

BRISBANE

..DATE 28/08/97

JUDGMENT

de JERSEY J:  The applicant was convicted on a plea of guilty of assault occasioning bodily harm whilst armed with a dangerous instrument.  He was sentenced in the Mornington Island Magistrates Court to nine months' imprisonment, suspended for two years.  He had no especially relevant prior criminal history. 

He is a 19-year-old man.  The complainant was a 17-year-old woman who had been in a relationship with him.  That had ended a few days before the date of this offence.  On the night in question the complainant was with another man in the bedroom of her house.  The applicant entered the house and banged on the locked bedroom door.  He then kicked down the door, and the man who had been with the complainant jumped out the window.  The applicant went over to the complainant and punched her in the face.  She fell onto the bed and tried to shield herself from the applicant who continued to punch her.  The applicant then picked up an axe handle and struck the complainant in the lower back.  He then left the bedroom but returned with a knife.  By this time, the complainant was standing up.  The applicant walked over to her and slashed at her with the knife cutting her across the right wrist.  He then ran from the house.

The Magistrate, rightly, took the view that the offence was serious involving as it did the applicant entering the house and breaking down the bedroom door, and although no serious injury was apparently caused, the assault was potentially dangerous. He also took account of the fact that the applicant was a young man without any relevant prior history. He referred to the principles contained in the Penalties and Sentences Act and was aware of the desirability of not imprisoning youthful offenders, but he concluded that it was the seriousness of the offence which warranted a term of imprisonment, which he then proceeded, however, to suspend in light of the applicant's age and absence of prior convictions.

I should point out that the solicitor for the applicant did, upon sentencing before the Magistrate, refer to the fact that the applicant claimed not to know that his relationship with the complainant had ended.  The solicitor pointed out that the applicant was very drunk at the time and had little recollection of the events and that the applicant, upon seeing the complainant with another man in the bed he used to share with her, naturally became greatly upset.

The submission to us, communicated in writing, was that a more lenient sentence should have been imposed, having regard to the youthfulness and immaturity of the applicant, his lack of any significant criminal history, his plea of guilty at the earliest opportunity, and the explanation for the event which was his distress upon finding another man with the woman with whom he had a relationship so recently terminated.

We were urged, in writing, to upset the sentence imposed and to order a non-custodial penalty instead.  On the other hand, bearing in mind the seriousness of the offence and notwithstanding the fact that the applicant was drunk at the time, bearing in mind that both the applicant and complainant were members of the Mornington Island community and that women who live in those communities are, just as those who live in other Queensland communities, entitled to the protection of the law, and bearing in mind that there was a range of options open to the Magistrate but that it was open to him to select a custodial response as being the appropriate response bearing in mind the gravity of the offence - the seriousness of the offence, mitigating that, however, by reference to the youth and absence of criminal history of the applicant by means of the suspension of the term, I consider that this particular penalty was within range and that we should not interfere.  I would refuse the application.

McPHERSON JA:  Yes, I agree.

PINCUS JA:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal is refused.

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