R v Bell; ex parte Attorney-General (Qld) - [1994] QCA 220

IN THE COURT OF APPEAL [1994] QCA 220

SUPREME COURT OF QUEENSLAND

C.A. No. 116 of 1994

Brisbane
[R. v. Bell]

BETWEEN:

T H E Q U E E N
v.

HAROLD ARTHUR GORDON BELL	Respondent
AND:
ATTORNEY-GENERAL OF QUEENSLAND	Appellant

Fitzgerald P.
Davies JA.
Demack J.

Judgment delivered 20/06/94
Judgment of the Court

Order that the sentence imposed below on 3 January 1994 be set aside. In lieu thereof order that the respondent be sentenced to imprisonment for one year, suspended. The operational period during which the respondent must not commit another offence punishable by imprisonment if he is to avoid being dealt with under section 146 of the Penalties and Sentences Act 1992 for the suspended sentence is 2 years.

CATCHWORDS: CRIMINAL LAW - sentence - unlawful wounding - domestic violence in rural Aboriginal community - whether general leniency to disadvantaged defendants prevented adequate penalisation of offence

Counsel:Mr. W. Clark for the appellant

Mr. J.A. Griffin Q.C., with him Mr. Smith for the respondent

Solicitors:Director of Prosecutions for the appellant

Hartley Holl for the respondent

Hearing Date:15/06/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20/06/94

The Attorney-General has appealed against a sentence imposed upon the respondent in the District Court at Kingaroy on 10 March 1994. The respondent pleaded guilty that day to a charge of unlawful wounding on 3 January 1994. The sentencing Judge placed the respondent on probation for two years and ordered him to perform 120 hours of community service. No conviction was recorded.

The respondent is a twenty-four year old aborigine who lived, and lives, in a de facto relationship with the complainant, a twenty-three year old aborigine, at Cherbourg. At the time of the offence, they had been living together for about four months.

On the day in question, they both consumed alcohol at the house where they lived, the home of a Mr. Edward Bond, and were both "getting pretty drunk". After a minor disagreement between them which was resolved, they and others went to another house at about 7.00 p.m.. By then, the respondent and the complainant had been drinking for about 6 hours. No alcohol was consumed at the second house, but the respondent and the complainant had a further argument. They then left that house and the respondent went to buy more beer. The complainant went to Bond's house and then to a neighbour's house. The respondent returned and went to the neighbour's house three times looking for the complainant. On each occasion she hid because she knew he was drunk and "he would start flogging me". Eventually, the respondent found the complainant and she left with him and they walked through other properties towards Bond's house. As they were about to cross a fence into Bond's property, the respondent told the complainant that he wanted her to come into his room with him but she refused. The respondent then produced a knife and stabbed the complainant once in the middle of her right upper thigh. He then…

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.

Keep reading for free

Create a free CaseChat account to read R v Bell; ex parte Attorney-General (Qld) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1994] QCA 220
Decision Date: 20/06/1994

CaseChat Overview and Summary

The case of R v Bell; ex parte Attorney-General (Qld) involves an appeal by the Attorney-General against a sentence imposed on the respondent, Harold Arthur Gordon Bell, by the District Court at Kingaroy. Bell had pleaded guilty to a charge of unlawful wounding, which occurred on 3 January 1994. The sentencing judge placed Bell on probation for two years and ordered him to perform 120 hours of community service, without recording a conviction. The appeal challenges the appropriateness of the sentence, particularly given the context of domestic violence in a rural Aboriginal community.

The primary legal issue before the Court of Appeal was whether the sentencing judge's consideration of the respondent's disadvantaged background, which included his status as an Aboriginal person from a rural community, justified the leniency of the sentence. The Attorney-General argued that the sentence was inadequate and failed to adequately penalise the offence, particularly considering the nature of the assault and the potential for harm to the complainant. The Court had to determine if the sentence appropriately balanced the respondent's background with the need to protect the community and the complainant.

The Court of Appeal found that while it was appropriate for the sentencing judge to consider the respondent's disadvantaged background, it did not justify leniency to the extent that the sentence failed to adequately penalise the offence. The Court acknowledged the difficulties faced by the sentencing judge, including the complainant's wish that Bell not be imprisoned and the prosecutor's understanding attitude. However, the Court held that the sentence imposed was insufficient and did not reflect the seriousness of the offence. The Court of Appeal set aside the original sentence and ordered that Bell be sentenced to imprisonment for one year, suspended, with a two-year operational period. The Court also emphasised that no power existed to order that a conviction not be recorded.

The Court of Appeal allowed the appeal and set aside the sentence imposed by the District Court. In its place, the Court sentenced Bell to imprisonment for one year, suspended, with a two-year operational period. The Court further clarified that no conviction should be recorded.

Orders