R v Clarke - [2012] QCA 318

[2012] QCA 318

COURT OF APPEAL

de JERSEY CJ
FRASER JA
BODDICE J

CA No 244 of 2012
DC No 89 of 2011

THE QUEEN

CLARKE, David Alexander Applicant

BRISBANE

DATE 22/11/2012

ORDER

THE CHIEF JUSTICE: I invite Justice Boddice to give the first judgment.

BODDICE J: The applicant seeks leave to appeal sentences of imprisonment imposed on 12 September 2012 in the District Court of Queensland. The ground of appeal, if leave be given, is that the sentences imposed were manifestly excessive having regard to all the circumstances of the offences and the antecedents of the applicant.

The sentences of imprisonment were imposed following pleas of guilty to one count of grievous bodily harm and one count of assault occasioning bodily harm. Both offences arose out of one incident. The complainant was the applicant's brother-in-law.

The applicant was sentenced to two and a half years' imprisonment on the count of grievous bodily harm, suspended after serving a period of nine months, for an operational period of three years. The applicant was sentenced to six months' imprisonment on the count of assault occasioning bodily harm. The sentences of imprisonment were to be served concurrently.

The applicant does not contend either of the head sentences was manifestly excessive. He contends the requirement that he serve nine months' imprisonment was, in the circumstances, manifestly excessive.

The offence of grievous bodily harm involved the applicant punching the complainant about six times to the left side of his face. The assault occasioning bodily harm involved the applicant punching the complainant, whilst he was on the ground, with a closed fist into the ribs.

As a result of the blows to the complainant's face the complainant suffered a fractured left orbital eye socket with a 13 millimetre bone displacement. The complainant required surgery for the open reduction to set bones and the internal fixation of screws and/or plates. The complainant also suffered from diplopia, double vision, and sag or displacement of the eyeball.

The offences occurred against a backdrop of the breakdown of the marriage of the complainant and the applicant's sister. This had led to the applicant's sister and her children being forced from their home. There was also some alleged inappropriate behaviour by the complainant to one of her children.

The applicant, who was employed by the complainant, raised his sister's predicament. A heated exchange occurred, following which the complainant dismissed the applicant from his employment and demanded the return of a ute and equipment. At that point the applicant attacked the complainant, committing the offences of grievous bodily harm and assault occasioning bodily harm.

Whilst the sentencing Judge accepted the circumstances of the marriage breakdown were relevant to the commission of the offences they did not diminish considerably the criminality of the applicant's behaviour.

The applicant was born on 8 May 1975. He was 35 at the time of the offences. He is now aged 37 years. He has no prior criminal history. He is otherwise of good character. References tendered…

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 Clarke

Details

AGLC: R v Clarke [2012] QCA 318
Case: [2012] QCA 318
Decision Date: 22/11/2012

CaseChat Overview and Summary

In the case of R v Clarke, the applicant, David Alexander Clarke, sought leave to appeal against sentences of imprisonment imposed in the District Court of Queensland. The applicant was convicted of one count of grievous bodily harm and one count of assault occasioning bodily harm, both arising from a single incident where the complainant was the applicant's brother-in-law. Clarke was sentenced to two and a half years' imprisonment for grievous bodily harm, suspended after nine months, and six months' imprisonment for assault occasioning bodily harm, with both sentences to be served concurrently. Clarke contended that the requirement to serve nine months' imprisonment was manifestly excessive.

The legal issues before the Court of Appeal were whether the sentences imposed by the District Court were manifestly excessive and whether the requirement that Clarke serve nine months' imprisonment before the sentence was suspended was disproportionate given the circumstances of the offences and Clarke's antecedents. The Court had to balance the seriousness of the offences, which involved substantial harm to the complainant, against the mitigating factors such as Clarke's otherwise good character, lack of criminal history, remorse, and the spontaneous nature of the offences. The Court also had to consider the principle of proportionality in sentencing and whether the sentences aligned with those imposed in similar cases.

The Court of Appeal granted leave to appeal and allowed the appeal, finding that the requirement for Clarke to serve nine months' imprisonment was manifestly excessive. The Court emphasised that the offences were serious, but noted the special and unusual circumstances surrounding the incident, including significant stressors present at the time. The Court concluded that a sentence requiring Clarke to serve substantially less than nine months before suspension was appropriate, considering his otherwise good character and the spontaneous nature of the offences. The Court of Appeal ordered that the sentences of imprisonment be suspended as and from 22 November 2012, for an operational period of three years. The Chief Justice and Justice Fraser concurred with the decision and the reasoning provided by Justice Boddice.

Orders