R v Anlezark - [1999] QCA 380

99.380

COURT OF APPEAL

McPHERSON JA
DERRINGTON J
CHESTERMAN J

CA No 207 of 1999

THE QUEEN

STEPHEN PATRICK ANDREW ANLEZARKApplicant

BRISBANE

..DATE 09/09/99

JUDGMENT

McPHERSON JA: The applicant was convicted on his own pleas of guilty in the District Court at Ipswich of one count of assault occasioning bodily harm and another of obstructing police. He was sentenced to imprisonment for 18 months for the assault and two months to be served concurrently for the other offence of obstructing the police.

The commission of those two offences had the consequence of activating an earlier suspended sentence of 12 months' imprisonment imposed by Judge Botting in October 1998 in respect of two counts of assault occasioning bodily harm with a circumstance of aggravation.

The effect of the sentence of 18 months imposed on this occasion, which was ordered to be served cumulatively upon the 12 months' sentence so activated, therefore was to produce an effective two and a half year head sentence; but Her Honour, in sentencing on this occasion, also made a parole recommendation in respect of the 18 months' sentence to the effect that the applicant be eligible for consideration for parole after serving four months of the sentence imposed.

The principal offence, which was committed on 14 February 1999, involved a protracted assault upon a young woman with whom the applicant had been in a relationship for several years. They had a son, aged three and a half years at the time, who was present and asleep in the house when the assault occurred.

The assault took place when the applicant, who had been drinking at the house most of the day and was intoxicated, objected to being told by his brother that he was too drunk to visit his parents' house. It can fairly be described as the by-product of drunken rage arising out of the applicant's state of mind or intoxication rather than the result of any conduct on the part of the complainant which led to the event for which he was sentenced.

The applicant pushed and shoved the complainant in various rooms around the house. He did so with considerable force and threatened her, with the result that she was put in not inconsiderable fear for herself and no doubt also for her child. She suffered some bruising and scratches but no significant or lasting physical injury. Her victim impact statement says or implies that the hurt she sustained was mainly emotional rather than physical.

The applicant's conviction for these offences had the consequence, as I have said, of raising for consideration the activation in whole or in part of the suspended sentence imposed by Judge Botting in October 1998. That sentence was attributable to two offences of assault occasioning bodily harm with circumstances of aggravation. They involved a brawl in a house in which the applicant was a visitor and, during the course of that visit, he apparently decided to settle some scores with those present resulting in the violence which…

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 Anlezark

Details

AGLC: R v Anlezark [1999] QCA 380
Case: [1999] QCA 380
Decision Date: 9/09/1999

CaseChat Overview and Summary

In the case of the Queen v. Stephen Patrick Andrew Anlezark, the applicant was convicted of one count of assault occasioning bodily harm and another of obstructing police. He was sentenced to 18 months imprisonment for the assault and two months concurrently for obstructing police. These offences activated a previously imposed suspended sentence of 12 months for two counts of assault occasioning bodily harm with a circumstance of aggravation. The combined sentences resulted in an effective head sentence of two and a half years, with a recommendation for parole eligibility after four months of the 18 months sentence. The applicant appealed against the length of the head sentence, arguing it was excessive.

The appeal court considered whether the suspended sentence should have been activated and if the cumulative extra sentence was excessive. Section 147 of the Penalties and Sentences Act limits the options for a later sentencing court dealing with a repeat offender. The court found that it was not unjust to activate the suspended sentence due to the nature and timing of the new offences. The court also considered the nature of the assault, which, while prolonged and in the presence of a child, did not result in significant physical injury, mainly causing emotional harm. The court acknowledged the assault was not particularly violent and that the applicant had suffered a troubled childhood. Despite this, the court found the head sentence of 18 months cumulative on the other sentence was excessive for an assault of this nature and consequences.

The court reduced the sentence from 18 months to six months, while maintaining the recommendation for parole eligibility after four months. The applicant's time already spent in detention meant that, if the parole recommendation was followed, he would serve very little additional time. The court clarified that, while it made the recommendation, it had no control over whether the prison authorities acted upon it. The final order was that the appeal would be allowed to the extent of reducing the sentence from 18 months to six months, with the other orders remaining in place.

Orders