R v Cummins - [2001] QCA 237

[2001] QCA 237

COURT OF APPEAL

McMURDO P
DAVIES JA
JONES J

CA No 287 of 2000

THE QUEEN

PAUL GERARD CUMMINS Appellant

CAIRNS

..DATE 19/06/2001

JUDGMENT

THE PRESIDENT: The applicant was convicted, after a three day trial in the Supreme Court at Townsville, of attempting to murder his elderly mother by hitting her at least three and perhaps six times with a piece of wood. He was sentenced to 14 years' imprisonment. The applicant claims his sentence is manifestly excessive and contends that a sentence of 12 years' imprisonment was appropriate.

It seems the applicant has a serious alcohol problem and had been drinking heavily for some time prior to the attack. The day before he had argued with his mother, who was an invalid confined to a wheelchair, about his girlfriend; the complainant said the applicant had threatened to "slice her up" that night.

The next evening the applicant again visited his mother. The complainant noticed that a piece of wood from a broken cupboard had been moved from her backyard into her house and was concerned the applicant may attack her with it. The applicant indeed armed himself with the piece of wood and then attacked the complainant, delivering at least three and perhaps as many as six blows to her head. During the attack the applicant was heard to say, "I'll kill you, you cunt." The complainant called for assistance from another son who, although he had been drinking, was able to disarm the applicant and assist his mother.

The applicant fled. The complainant was unconscious and covered in blood. The complainant was taken to hospital and treated for three lacerations to the scalp, the largest eight centimetres in length. Six sutures were placed in the lacerations which were deep, travelling through the skin, the subcutaneous tissue, the ponecrosis of muscle and the further facial layer before arriving at the periosteum, the last layer before the actual bone. The wounds became badly infected and required surgery to re-open and explore the wounds and a prolonged course of intravenous antibiotics to combat the infection. It seems the complainant spent four days in hospital.

The applicant had a most serious criminal history. After being convicted of a number of relatively minor offences, he was sentenced to a total period of five years' imprisonment for the offences of unlawful use of a motor vehicle, indecent assault, sodomy, stealing, and robbery in company with personal violence. All these offences arose out of the one episode on 6 March 1982. He was subsequently convicted of property offences which occurred before this date, for which he also received concurrent sentences. In 1987 he was placed on probation for wilful destruction of property and stealing; sentenced to 200 hours' community service for possession of property suspected of being stolen and was sentenced to six months' imprisonment for burglary. He has a number of convictions for relatively minor drug offences. In 1989 he was sentenced to seven years' imprisonment for rape with a…

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.

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Details

Case: [2001] QCA 237
Decision Date: 19/06/2001

CaseChat Overview and Summary

In this case, the appellant, Paul Gerard Cummins, was convicted of attempting to murder his elderly mother by striking her multiple times on the head with a piece of wood. He was sentenced to 14 years' imprisonment. Cummins appealed against his sentence, arguing that it was manifestly excessive and that a sentence of 12 years' imprisonment was appropriate. The Court of Appeal was required to determine whether the sentence was manifestly excessive and whether the applicant was entitled to leave to appeal against the sentence.

The Court of Appeal found that the sentence was not manifestly excessive. The President noted that the applicant had a serious alcohol problem and had been drinking heavily prior to the attack. The attack on the applicant's elderly, invalid mother was unprovoked and unexplained, and there was no mitigating benefit of an early plea of guilty or remorse. The President also noted that the applicant had an extensive criminal history for offences of violence, including violence against women. The Court of Appeal concluded that the sentence imposed was not manifestly excessive and refused the application for leave to appeal against sentence.

The Court of Appeal dismissed the applicant's appeal against sentence. The order is that the application for leave to appeal against sentence is refused.

Orders