R v Bower-Miles & Smith - [1995] QCA 453

[1995] QCA 453

COURT OF APPEAL
McPHERSON JA
THOMAS J
WILLIAMS J

CA No 278 of 1995 CA No 279 of 1995

THE QUEEN
v.
SHANE ANTHONY BOWER-MILES and

GLEN SMITH	Applicants
BRISBANE ..DATE 14/09/95 140995 D.1 T 8/JP M/T COA95/279

They were both sentenced to imprisonment for three and a half

years with a recommendation for parole after 12 months.

The circumstances of the offence, briefly stated, were that
Trevor Box lived in a house at Jacobs Well with his brothers
Darren and Geoffrey, his sister Megan and two others named
Chris Martin and Megan Martin. On 23 May 1994 the police
seized some stolen car parts from the house of the complainant
Trevor Box. Chris Martin had, it seems, taken the parts for a
car that had been found in the bush.

The car in question belonged to one Michael Lye who accompanied police to the complainant's house in order to identify the parts. Proceedings were taken against Chris Martin who, in this connection, pleaded guilty to an offence with respect to the car or the parts. On 25 May 1994 Michael Lye went to the complainant's house to confront the occupants about the car and the parts. The applicants Bower-Miles and Smith went with him. They arrived at about 11 p.m. and pretended to be police.

Bower-Miles was carrying a wooden baton and Smith a broken pool cue. Lye was carrying two torches. They all went into the house. A fight ensued between them and the brothers Box.

Smith was punched in the face and was hit with the butt of a

rifle. Bower-Miles was successful in striking Trevor Box on
the head with the baton but he was kicked and punched by
140995 D.1 T 8/JP M/T COA95/279
Trevor Box and Chris Martin. Martin also punched Smith who,
after sustaining some injuries, was chased off the scene.
Bower-Miles, meanwhile, was lying unconscious on the ground
after being struck to the ground and punched. Lye had, in the
meantime, prudently decamped at an early stage of the battle.

He was not charged with any offence.

The complainant Trevor Box sustained a scalp laceration of about 1 centimetre by 1 centimetre in dimension and some tenderness to the right shoulder. It is those injuries or one of them that is the subject of the second count of assault occasioning bodily harm. By contrast with their intended victims, Smith sustained two scalp lacerations and a broken nose. The applicant, Bower-Miles, suffered two black eyes and a 5 centimetre abrasion on the right arm. He later said he could not remember the events of the evening. That is not altogether surprising as, according to the material in the record, he was unconscious for an hour or so until the police and ambulance arrived.

He could remember only that he had earlier been drinking with
Michael Lye and it seems to have been some such drinking bout
that provided the genesis for this series of offences. In
Noble and Verheyden (1994)…

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 Bower-Miles & Smith

Details

AGLC: R v Bower-Miles & Smith [1995] QCA 453
Case: [1995] QCA 453
Decision Date: 14/09/1995

CaseChat Overview and Summary

In the case of R v Bower-Miles and Smith, the applicants appealed their sentences following a home invasion incident. The applicants, Shane Anthony Bower-Miles and Glen Smith, had invaded the privacy of a dwelling at night armed with offensive weapons. Bower-Miles struck the homeowner, Trevor Box, with a baton, while Smith carried a broken pool cue. The occupants of the house retaliated, resulting in injuries to both applicants. The primary legal issue before the court was whether the sentences imposed by the trial judge were appropriate, considering the nature of the crime and the circumstances of the applicants.

The court considered several factors in reaching its decision, including the nature of the intrusion, the use of weapons, the lack of prior convictions for one of the applicants, and the severity of the injuries sustained by all parties. The court noted that the applicants had been overpowered and sustained significant injuries themselves. The judges took into account the applicants' pleas of guilty, their remorse, and their early acceptance of responsibility. However, the court also emphasised the need for deterrence and community protection against home invasions.

After reviewing the circumstances and the sentence imposed by the trial judge, the court found that the term of three and a half years for each applicant was too severe. The judges agreed that the sentence should be reduced, but differed on the precise terms. Ultimately, the court decided to vary the sentences, reducing the term of imprisonment for each applicant. Bower-Miles' sentence was reduced to two years, suspended after six months, with an operational period of two years. Smith's sentence was reduced to two years, suspended after six months, with an operational period of three years. The court aimed to balance the need for deterrence with the circumstances of the case, including the applicants' youth and lack of prior convictions.

Orders