R v Foster - [2000] QCA 134

[2000] QCA 134
COURT OF APPEAL

de JERSEY CJ
McMURDO P
HELMAN J

[R v FOSTER]

CA No 431 of 1999

THE QUEEN

PHILLIP JOHN FOSTER Applicant

BRISBANE

..DATE 14/04/2000

JUDGMENT

THE CHIEF JUSTICE: The applicant pleaded guilty to doing grievous bodily harm to the complainant man whom he found in compromising circumstances with his, the applicant's, wife. The applicant and his wife had very reasonably agreed to a trial separation following 10 years of marital cohabitation.

The applicant was upset about this. He had suspected a relationship between his wife and the complainant but his wife had denied that. On this evening or early morning the applicant was looking after their son who experienced an acute asthma attack. The applicant rushed to the former matrimonial home to fetch the requisite nebuliser.

He found his wife and the complainant naked in bed together at about 2.00 a.m. In fury, the applicant fetched a golf club and delivered nine or 10 blows to the head, body and arms of the complainant. In the course of this the golf club broke. The applicant then stabbed at the complainant's body with one of the broken ends.

The applicant left the room but later returned with another club yelling at the complainant and his wife to leave. Then the applicant obtained a shot gun and loaded it. He did not threaten the complainant with it,however, but took it to the garage and commenced hitting the complainant's motor cycle with the butt of the rifle or shotgun.

The applicant was inspired to do that because of anger related to the circumstance that the motor cycle bore an insignia dedicated to the applicant's wife. The complainant and the applicant's wife then left.

The complainant suffered a fractured left elbow which was in plaster for three weeks, a stab wound to the right side of the chest, lacerations to the scalp requiring sutures and bruising to the ribs and left arm. The complainant's victim impact statement referred to continuing physical effects and emotional disturbance.

The cost of repairing the damage to the cycle on the complainants estimate is $6,250.00 although the applicant would put it at about $4,000.00. Compensation, I should say, was offered. The learned sentencing Judge accepted that the applicant had been provoked and said that it was little wonder he snapped but it was she said a vicious and cowardly attack although not premeditated and carried out in a sustained way in the early morning in a private home thereby calling for the serving of a term of actual imprisonment.

Mr Rafter, who appeared fo the applicant today did not dispute that a term of actual incarceration was warranted. The learned Judge sentenced the applicant to 12 months' imprisonment to be suspended after six months for an operational period of three years.

For the related wilful damage charge she sentenced the applicant to a concurrent six month term. The applicant contends that the sentence is manifestly excessive and points to his lack of…

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: [2000] QCA 134
Decision Date: 14/04/2000

CaseChat Overview and Summary

The case of R v Foster involves the applicant, Phillip John Foster, who was convicted of grievous bodily harm (GBH) after attacking a man he found in compromising circumstances with his wife. The dispute centers on the severity of the sentence imposed by the trial judge, which the applicant argued was manifestly excessive. The Queensland Court of Appeal heard the appeal.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the trial judge was manifestly excessive. The appeal hinged on whether the Court should consider the sentence imposed as disproportionate given the applicant's lack of prior convictions, his guilty plea, and the mitigating circumstances of the marital situation.

The Court of Appeal, consisting of Jersey CJ, McMurdo P, and Helman J, held that the sentence was not manifestly excessive. The Chief Justice noted that the attack was vicious and cowardly, involving the use of a golf club and a shotgun, and was not premeditated but rather carried out in a sustained manner. The Court found that the trial judge appropriately considered the mitigating factors, including the plea of guilty, and that the sentence adequately reflected these factors while also addressing the need for deterrence in cases involving serious personal violence. The Court further emphasised that the community and courts are no longer prepared to tolerate violence during personal relationship breakdowns. The judges unanimously agreed to refuse the application, finding that the sentence imposed was appropriate.

The final order of the Court of Appeal was to refuse the application, affirming the sentence imposed by the trial judge.

Orders