R v Comer - [2019] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION:

R v Comer [2019] QCA 111

PARTIES:

R
v
COMER, Zachary William Robert
(appellant)

FILE NO/S:

CA No 341 of 2018
DC No 776 of 2018
DC No 2583 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 14 November 2018 (Farr SC DCJ)

DELIVERED ON:

7 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2019

JUDGES:

Gotterson and McMurdo JJA and Mullins J

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence granted.

3.   Appeal against sentence allowed.

4.   Set aside the sentence of 16 months’ imprisonment imposed for the assault occasioning bodily harm and in lieu sentence the appellant to 12 months’ imprisonment to be served cumulatively on the four months’ imprisonment ordered to be served by the primary judge in respect of the suspended sentences imposed on 24 November 2015 in the Brisbane Magistrates Court.

5.   The parole release date is fixed at 14 July 2019.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted after trial of one count of assault occasioning bodily harm – where video footage of the incident was shown to the jury – whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of assault occasioning bodily harm

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted after trial of one count of assault occasioning bodily harm and was sentenced to 16 months’ imprisonment – where the offence was committed during the operational period of three suspended terms of imprisonment of four months’ each – where each of the suspended terms was activated concurrently – where the sentence of 16 months’ imprisonment was cumulative on the activated suspended sentences – where the parole release date was fixed after 50 percent of the period of imprisonment – whether the sentence was manifestly excessive in the circumstances

R v Hilton[2009] QCA 12, considered
R v Warwick[2006] QCA 83, considered

COUNSEL:

The appellant appeared in person
J A Geary for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the orders proposed by Mullins J and with the reasons given by her Honour.
McMURDO JA: I agree with Mullins J.
MULLINS J: On 14 November 2018 Mr Comer was convicted after trial before a jury in the District Court of one count of assault occasioning bodily harm committed on 1 October 2016. He was sentenced to 16 months’ imprisonment. The offence was committed during the operational period of three suspended terms of imprisonment, one for serious assault causing bodily harm, one for serious assault and one for assault occasioning bodily harm,…

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 Comer

Details

AGLC: R v Comer [2019] QCA 111
Case: [2019] QCA 111
Decision Date: 7 June 2019

CaseChat Overview and Summary

In the case of R v Comer, the appellant was convicted of one count of assault occasioning bodily harm following a trial. The conviction stemmed from an altercation between the appellant and the complainant, which was captured on video footage shown to the jury. The appeal against the conviction questioned whether the jury's verdict was reasonable and supported by the evidence. The appellant argued that the video footage showed the complainant struck him first, which could potentially support a self-defense claim. However, the appellant conceded that this defence was not viable as self-defence law permits the use of the same force, but not disproportionate force, in response to an attack.

The court was tasked with determining whether the jury could reasonably conclude beyond reasonable doubt that the appellant was guilty of the assault based on the evidence presented, including the video footage. The court also had to consider whether the sentence imposed was manifestly excessive or inadequate. The appellant received a 16-month imprisonment term for the assault occasioning bodily harm, which was to be served cumulatively on three activated suspended sentences of four months each. The appellant argued that the sentence was excessive, especially since the parole release date was set after 50 percent of the total imprisonment period had been served.

The court dismissed the appeal against conviction, holding that the jury's verdict was reasonable and supported by the evidence. However, the appeal against the sentence was allowed. The court found that the sentence was manifestly excessive given the circumstances of the case. The court set aside the 16-month imprisonment term for the assault occasioning bodily harm and, instead, sentenced the appellant to 12 months’ imprisonment, to be served cumulatively on the four months’ imprisonment for the suspended sentences. The parole release date was fixed at 14 July 2019.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted.

3. Appeal against sentence allowed.

4. Set aside the sentence of 16 months’ imprisonment imposed for the assault occasioning bodily harm and in lieu sentence the appellant to 12 months’ imprisonment to be served cumulatively on the four months’ imprisonment ordered to be served by the primary judge in respect of the suspended sentences imposed on 24 November 2015 in the Brisbane Magistrates Court.

5. The parole release date is fixed at 14 July 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Some of Mr Comer’s complaints were not strictly relevant to his appeal against conviction, but give some context to the reasons for the trial proceeding and Mr Comer’s acceptance on this appeal that he used excessive force when punching the complainant. It appears that at one stage Mr Comer had decided to plead guilty to the charge, but when he attended to sign the paperwork, he disputed the recitation in the schedule of facts relating to the charge (that presumably was prepared by the prosecution) that the complainant had gone to the street in which Mr Comer lived to speak to him “as he had assaulted the complainant’s son earlier that day”. With the benefit of hindsight, it would have been helpful if Mr Comer had understood that the inclusion of that assertion in the schedule of facts was for the purpose only of explaining from the complainant’s perspective why he had gone looking for Mr Comer and that Mr Comer was not charged with assaulting the complainant’s son and could not have been sentenced on the basis he had committed such an assault. Mr Comer would not sign off on the guilty plea on the basis of that assertion, as he disputed he had assaulted the complainant’s son earlier that day. Mr Comer changed lawyers and asserts that counsel who appeared for him at the trial, after viewing the video of the incident in slow motion, advised him that, because the complainant struck him first, there was enough evidence to run self defence. Mr Comer notes in his written submission that he realises now that was a defence he was never going to win, because he has since learnt that “self-defence law states that you can use the same force as applied to you and not disproportionate in any way”. Despite the concessions Mr Comer made in his submissions, he did not abandon his appeal against conviction.The evidence at trial The complainant and his son and Mr Comer’s father gave evidence for the prosecution. Mr Comer gave evidence for the defence. It was admitted by both the prosecution and the defence that Mr Comer and the complainant were involved in a physical altercation in the relevant street. The complainant was 54 years old at the date of the offence. He was medically retired from the police service and in receipt of a disability pension. After being telephoned by his son at around 12.15pm on that day, he attended at the street in which Mr Comer resided. His son has Asperger’s. As a result of what his son had told him, the complainant decided to speak to Mr Comer. He stood on the footpath outside Mr Comer’s home and called out:“Look, I’m a retired police officer. I’ve been a justice of the peace for over 25 years. I’m here to find out what the issues are with my son.”A woman came out to the landing and he had a conversation with her. Mr Comer came running out of the house and ran down the steps and was yelling out negative comments about the complainant’s son. The complainant then described what happened in these terms:“And then he came up to me within arm’s length. I put my arm up like so with open palm because I felt immediately threatened by him and he was very agitated, waving his arms around, to keep some distance between us. And then he said, ‘I asked your son – ’ or something like ‘ – to leave me alone several times.’ And I checked around to see where my son was to make sure he was behind me, and the next thing I felt a punch to the right side of my – to the left side of my face with his right fist and then several punches just ensued, and I went straight into a defensive position like this to try and block the punches hitting me several times on the left and right side of my face and head and my – my hand here, which bled from the impact, hitting me next to my pacemaker in my chest as well. Then I got a punch straight to the face, nose and mouth, which I thought broke my nose, and I went straight to the ground. Then he kicked me in the back when I was the ground and kept punching me while I was on the ground.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Comer [2019] QCA 111
PARTIES:	R v COMER, Zachary William Robert (appellant)
FILE NO/S:	CA No 341 of 2018 DC No 776 of 2018 DC No 2583 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 14 November 2018 (Farr SC DCJ)
DELIVERED ON:	7 June 2019
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2019
JUDGES:	Gotterson and McMurdo JJA and Mullins J
ORDERS:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence granted. 3. Appeal against sentence allowed. 4. Set aside the sentence of 16 months’ imprisonment imposed for the assault occasioning bodily harm and in lieu sentence the appellant to 12 months’ imprisonment to be served cumulatively on the four months’ imprisonment ordered to be served by the primary judge in respect of the suspended sentences imposed on 24 November 2015 in the Brisbane Magistrates Court. 5. The parole release date is fixed at 14 July 2019.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was convicted after trial of one count of assault occasioning bodily harm – where video footage of the incident was shown to the jury – whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of assault occasioning bodily harm CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted after trial of one count of assault occasioning bodily harm and was sentenced to 16 months’ imprisonment – where the offence was committed during the operational period of three suspended terms of imprisonment of four months’ each – where each of the suspended terms was activated concurrently – where the sentence of 16 months’ imprisonment was cumulative on the activated suspended sentences – where the parole release date was fixed after 50 percent of the period of imprisonment – whether the sentence was manifestly excessive in the circumstances R v Hilton[2009] QCA 12, considered R v Warwick[2006] QCA 83, considered
COUNSEL:	The appellant appeared in person J A Geary for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the respondent