R v Elliott - [2001] QCA 507

[2001] QCA 507

COURT OF APPEAL

McMURDO P
McPHERSON JA
CHESTERMAN J

CA No 168 of 2001

THE QUEEN

DANIEL GREGORY ELLIOTT Applicant

BRISBANE

..DATE 14/11/2001

JUDGMENT

THE PRESIDENT: Mr Justice Chesterman will deliver his reasons first.

CHESTERMAN J: The applicant seeks leave to appeal against sentences imposed upon him by Judge Nase in the District Court on 23 April 2001. He pleaded guilty to one count of unlawfully doing grievous bodily harm to Michael Condon and one count of assault occasioning bodily harm to Benjamin Condon. The offences were committed at the same time, on
20 February 2000.

Benjamin Condon was 19 years of age and had moved into a rented house. He invited a number of friends to a house- warming party. His younger brother, Michael, who was 16 attended but the applicant had another man called Bannon observe the festivities and joined in. They had not been invited and were a little older than the guests. The applicant had been drinking heavily and his behaviour at the party was disruptive. He and Bannon moved from group to group arguing and causing unpleasantness. They were asked to leave but refused.

Some time after midnight Mr Michael Condon, the father of Benjamin, arrived to take his younger son home. He was made aware of the applicant's misbehaviour and it seems he was asked if he could help to have him leave. Mr Condon was, of course, considerably older than the party goers. He was 41.
He spoke to the applicant and Bannon and asked them politely but firmly to leave. They apparently agreed but as they were walking from the premises past Mr Condon the applicant struck him a severe blow to the mouth breaking his front teeth and causing him to fall dazed to the ground. His son, Benjamin, went to assist him and was also struck by the applicant in the mouth. The applicant aimed a second punch at Benjamin but missed. He and Bannon then left. Mr Michael Condon lost two upper front teeth. His son also suffered fractures to his teeth but they had been saved.

The applicant was 23 years of age at the time of the offences. He has a substantial criminal history for violent offences. On 29 October 1996 when he was 19 he was convicted of assault occasioning bodily harm. He was fined $400 and ordered to make restitution in the sum of $800.

On 4 March 1997 he was again convicted of assault occasioning bodily harm. As well, he was convicted of assaulting police and the serious assault of a police officer. He was sentenced to perform 160 hours of community service and ordered to pay $600 compensation.

Over the next 18 months he twice breached the obligations imposed on him to perform community service. On
20 September 1999 he was convicted of causing wilful damage, then there followed these offences in February 2000.
The applicant was sentenced to serve two and a half years' imprisonment for the offence…

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 Elliott

Details

AGLC: R v Elliott [2001] QCA 507
Case: [2001] QCA 507
Decision Date: 14/11/2001

CaseChat Overview and Summary

The Court of Appeal in Queensland heard an application for leave to appeal against the sentence handed down by Judge Nase in the District Court on 23 April 2001. The applicant, Daniel Gregory Elliott, pleaded guilty to one count of unlawfully doing grievous bodily harm to Michael Condon and one count of assault occasioning bodily harm to Benjamin Condon. Both offences occurred on the same day, 20 February 2000. The applicant was sentenced to two and a half years’ imprisonment for the grievous bodily harm charge, with the recommendation that he be eligible for parole after serving a third of the sentence, and to 12 months' imprisonment for the assault charge, with the recommendation that he be eligible for parole after serving four months. The applicant argued that the sentences were manifestly excessive, pointing to the good recovery of the victims from their injuries and his abstinence from alcohol since the incident.

The central legal issue before the Court was whether the sentencing discretion had miscarried, particularly in light of the applicant's prior history of violence, his guilty plea, and his efforts towards rehabilitation. The Court considered the nature and circumstances of the offences, including the unprovoked attack on the victims, the applicant's intrusion into the victims' home, and his refusal to leave despite requests to do so. The Court also noted the applicant's substantial prior criminal history for violent offences, despite his good work history and participation in sport. The Court held that the sentencing judge had correctly identified the relevant factors and that the sentences, while substantial, were not manifestly excessive.

In summary, the Court found that the applicant's prior history of violence and the unprovoked nature of the attack warranted a substantial sentence. The recommendation for early parole acknowledged the applicant's efforts towards rehabilitation and demonstrated genuine remorse. The Court of Appeal, in accordance with the precedent set by previous cases, determined that the sentences imposed were appropriate and not manifestly excessive. The application for leave to appeal was therefore refused.

Orders