R v Bain - [2000] QCA 121

[2000] QCA 121
COURT OF APPEAL

de JERSEY CJ
DAVIES JA
THOMAS JA

[R v Bain]

CA No 440 of 1999

THE QUEEN

ADRIAN GLEN BAIN Applicant

BRISBANE

..DATE 10/04/2000

JUDGMENT

THOMAS JA: This is an application for leave to appeal against sentence by an 18-year-old applicant. He pleaded guilty to a variety of offences on two indictments.

The first indictment charged one count of burglary. The second indictment charged one count of grievous bodily harm, seven of entering premises and stealing, four of burglary, one of receiving, two of entering with intent, two of stealing, one of unlawful use of a motor vehicle, one of burglary with circumstances of aggravation, one of attempted burglary in the night with circumstance of aggravation, one of wilful damage and four of serious assault.

The offences in question were committed between November 1997 until 16 July 1999. Nearly all of them were committed between October 1998 and July 1999, over which period they could be described as a stream of offences.

At various points over that period, he was granted bail, but apparently continued reoffending. He was sentenced to three years' imprisonment with a recommendation that he be considered for parole after serving ten months. A declaration was made in relation to 68 days as time already served under those sentences.

He has a prior criminal history. In 1997 he was convicted of entering premises. In March 1998 a Court granted him probation on a number of matters of entering premises with intent. Apparently, following that, he committed crimes that are subject of the present matters, was bailed, committed more crimes, was bailed again and committed more crimes.

On 27 April 1999 a suspended sentence of twelve months was imposed, of which he was ordered to serve one month, this being in respect of an offence of breaching bail. He was then arrested on the present matters in July 1999. Shortly after his arrest, he was required to serve the one month suspended sentence to which I have just referred. Following that, he served 68 days, which brought him up to the time of the present sentence in the District Court.

The offence of grievous bodily harm involved a fight between the applicant and his brother. The applicant used a knife. The incident arose from an argument followed by a fight, in which the complainant gained the upper hand. The applicant was on the ground and was being kicked and the complainant dropped his knee into the accused's head. The applicant told police that he took a butter knife from his back pocket and stabbed his brother in the leg with it. He told police he was aiming for his brother's chest and conceded that he did not warn his brother that he had a knife. The brother fell to the ground clutching his leg and apparently, the applicant claimed to a witness that he had used scissors. In any event, the stab was a very serious one, severing muscles down to…

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 Bain

Details

AGLC: R v Bain [2000] QCA 121
Case: [2000] QCA 121
Decision Date: 10/04/2000

CaseChat Overview and Summary

In the case of R v Bain, the applicant, Adrian Glen Bain, sought leave to appeal against his sentence. Bain pleaded guilty to a series of offences that spanned from November 1997 to July 1999. These offences included burglary, grievous bodily harm, stealing, receiving stolen goods, unlawful use of a motor vehicle, and assault. The court needed to determine whether the sentence imposed by the District Court was appropriate, considering the nature and number of the offences, the applicant's history, and the mitigating factors presented. The primary issue was whether a sentence of three years' imprisonment, with a recommendation for parole after ten months, was just and whether a partly suspended sentence would have been more appropriate.

The court considered the severity of the offences, which included a grievous bodily harm incident where Bain stabbed his brother with a butter knife, causing serious injuries. The court also took into account the extensive property damage and thefts committed by Bain, many of which occurred while he was on bail. The mitigating factors included Bain's cooperation with police, his age, his limited education, and his family background. The court also noted that Bain had stopped using methylamphetamine and had improved his health while in prison. However, the court held that the sentence imposed was appropriate and not inappropriate or stifling, considering all the circumstances.

The Court of Appeal, consisting of Jersey CJ, Davies J, and Thomas JA, unanimously refused the application for leave to appeal. The court found that the sentence was appropriate given the nature of the offences, the applicant's history, and the mitigating factors. The court emphasised that the sentence did not remove Bain from supervised control by the authorities, which was a concern if a partly suspended sentence had been imposed. The final order was that the application for leave to appeal was refused.

Orders