R v D - [2000] QCA 102

[R v D]
[2000] QCA 102

COURT OF APPEAL

DAVIES JA
McPHERSON JA
MOYNIHAN J

CA No 415 of 1999

THE QUEEN

D (Applicant)

BRISBANE

..DATE 29/03/2000

JUDGMENT

DAVIES JA: I will ask Justice McPherson to deliver his reasons first.

McPHERSON JA: The applicant is an Aboriginal youth, 15 or 16 years old at the time of the offence, who was convicted after a trial in the District Court at Ipswich of occasioning bodily harm. He was sentenced under the Juvenile Justice Act to a period of detention for 12 months and now seeks leave to appeal against the sentence on the ground that it is excessive.

The victim of the assault was a male university student who was walking with his girlfriend, Linda, through the city streets in the early hours of the morning. He was approached by two Aboriginal youths who asked him for a lighter and then for cigarettes. When he said he had none they attacked him and forced him to the ground. They started kicking him and were joined in this by some four, or it may have been six, other youths of whom the applicant was one. The applicant denied having participated in the assault; but Linda, in her evidence at the trial, said that all of the youths were kicking the victim and were doing so around the head.

She herself was threatened by some girls who were there, and, despite the risk to herself, tried to defend the victim and to get help. A passing motorist called the police and, at some risk of injury or damage to his car, followed some of the assailants. The applicant, who was one of the last to leave the scene, was caught. The others seem to have got away.

The injuries sustained by the victim were not inconsiderable. He received a cut lip which required 40 to 50 stitches. He suffered concussion, burst blood vessels in the left eye, severe swelling and many facial cuts, and abrasions. He now has to live with significant permanent scarring to his face - that is, in the lip area. His lower lip is still swollen because of all the scar tissue that is there, and it may never return to normal. He suffered a large bruising on his back, and, after the injury, he was for some time able to drink only through a straw before the stitches were removed. He had to take some time off his studies which, of course, made it harder for him to catch up later, and he spent time going to doctors. Needless to say, he is now less confident both generally and in relation to his associations with other people than he was before. I have the greatest sympathy for him in regard to this quite unprovoked assault which he suffered.

The applicant himself, although young, already has a criminal history, although this is his first conviction for violence to the person. Summing it up as best I can, he…

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 D

Details

AGLC: R v D [2000] QCA 102
Case: [2000] QCA 102
Decision Date: 29/03/2000

CaseChat Overview and Summary

In this case, the applicant, an Aboriginal youth, was convicted of occasioning bodily harm and was sentenced to a period of detention for 12 months under the Juvenile Justice Act. The applicant sought leave to appeal against the sentence, arguing that it was excessive. The Court of Appeal had to determine whether the sentence was appropriate and whether the applicant’s criminal history and alcohol abuse issues warranted a reduction in the detention period.

The court considered the severity of the offence, which involved a violent assault on a university student, resulting in significant injuries. The applicant had a history of non-violent criminal activities, but this was his first conviction for violence to a person. The court also took into account the applicant's alcohol abuse problem and the fact that he had been drinking excessively at the time of the offence. Given that previous non-custodial sentences had not been effective, the court found that detention was necessary, but it had to assess whether the 12-month term was appropriate.

The court concluded that while the offence was serious, the applicant’s limited involvement in the assault and his first conviction for personal violence were mitigating factors. The court found that a 12-month detention period was too long and reduced it to six months. The court also recommended that the applicant be returned to the Jessie Budby Healing Centre for rehabilitative treatment upon his release, to address his alcohol problem.

The court granted the appeal and reduced the term of detention from 12 months to six months. The court further recommended that the applicant be returned to the Jessie Budby Healing Centre for rehabilitative treatment upon his release.

Orders