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R v Ainsworth

R v Ainsworth

Case [2000] QCA 163 5 May 2000

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[2000] QCA 163

COURT OF APPEAL

McMURDO P
DAVIES JA
FRYBERG J

[R v AINSWORTH]

CA No 26 of 2000

THE QUEEN

JUSTIN ALASTAIR AINSWORTH Applicant

BRISBANE

..DATE 05/05/2000

JUDGMENT

THE PRESIDENT: Justice Davies will deliver his reasons first.

DAVIES JA: The applicant pleaded guilty in the Supreme Court on 6 January last to the offence of wounding with intent to do grievous bodily harm on 19 February 1998. On 14 January he was sentenced to imprisonment for six years for that offence. He seeks leave to appeal against that sentence.

The applicant is 27 years of age, having been born on
26 July 1972. He has an extensive prior criminal history. This dates from 1989 and consists mostly of offences of dishonesty. He was first sentenced to gaol for offences of that kind in early 1991, being then imprisoned for 18 months with a recommendation for parole after nine months for a number of offences, including breaking and entering with intent. Thereafter he has been in prison on numerous occasions.

In addition to those offences the applicant has been convicted of three offences of assault. On 23 August 1991 he was convicted of assault occasioning bodily harm and sentenced to two months imprisonment. On the same day he was convicted of a further offence of assault. Then on
25 June 1996 he was again convicted of assault occasioning bodily harm and sentenced to 12 months imprisonment.

On the present occasion the applicant stabbed his helpless victim four times with a 10 inch boning knife, once in the chest, twice on the arm and once on the leg. The victim bled profusely but has fortunately made a complete recovery.
The circumstances in which this offence occurred are extremely serious. On the day in question the applicant, his co-offenders Lopez and O'Malley and the victim, Agius, attended Court for the trial of a man, Nuendorf, who was charged with an offence which involved a home invasion. Nuendorf was apparently a friend of the applicant and at least of Lopez and was also known to Agius.

Agius was also apparently friendly with Nuendorf's victims and the applicant and his co-offender, Lopez, had expected that Agius would in some way have prevented those victims from giving evidence against Nuendorf, thereby ensuring his acquittal. That did not occur, the victims attended Court to give evidence and Nuendorf accordingly pleaded guilty.

After the Court hearing the applicant and his companions offered to drive Agius home. Agius unwisely accepted the offer. The car was driven by the applicant's 22 year old girlfriend, O'Malley. The applicant sat in the front seat and Agius and Lopez occupied the rear seats.

During the course of the journey both the applicant and Lopez made threats against the victims of Nuendorf's home invasion, saying things like, "They're all fucking dead." They demanded to know where those victims were living. Agius refused to answer. Then, apparently at Agius's request, the car was brought to a halt, whereupon Agius attempted to alight.…

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.

Continue reading R v Ainsworth

Details

AGLC: R v Ainsworth [2000] QCA 163
Case: [2000] QCA 163
Decision Date: 05/05/2000

CaseChat Overview and Summary

In the Court of Appeal, McMurdo P, Davies JA, and Fryberg J heard an application by Justin Alastair Ainsworth against the sentence imposed on him by the Supreme Court. The applicant had pleaded guilty to an offence of wounding with intent to cause grievous bodily harm, which he committed on 19 February 1998. The Supreme Court sentenced the applicant to imprisonment for six years. The applicant sought leave to appeal against that sentence.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the Supreme Court was manifestly excessive, having regard to the plea of guilty and the period of pre-sentence custody. The applicant argued that the sentence was manifestly excessive because the learned sentencing judge failed to give sufficient weight to his plea of guilty and the period of pre-sentence custody in imposing the sentence. The applicant submitted that the sentence of six years imprisonment would have been the appropriate starting point before taking those matters into account, and that a sentence of four years imprisonment would have been the appropriate sentence.

The Court of Appeal found that the submissions involved two errors. The first was in thinking that the period of six years would have been the maximum appropriate sentence for the offence before taking into account the plea of guilty and the period of pre-sentence custody. The second was in assuming that the guilty plea and the pre-sentence custody should have reduced this sentence by as much as a third. The Court found that the offence was a very serious one of its kind, involving a vicious and cold-blooded attack on a man because he had failed to prevent victims of a home invasion from giving evidence against their assailant. The Court also found that the applicant's prior criminal history, which involved prior convictions for offences of violence, was another serious aspect of the matter. The Court found that the sentence imposed by the Supreme Court properly reflected the seriousness of the offence and the time spent in pre-sentence custody and the applicant's late plea of guilty.

The Court of Appeal refused the applicant's application for leave to appeal against sentence.

Orders