R v Galleghan - [2017] QCA 186

[2017] QCA 186

COURT OF APPEAL

SOFRONOFF P
BODDICE J
FLANAGAN J

CA No 218 of 2016
DC No 80 of 2015
DC No 439 of 2014

THE QUEEN

GALLEGHAN, Robert James Applicant

BRISBANE

THURSDAY, 31 AUGUST 2017

JUDGMENT

SOFRONOFF P: The applicant applies for leave to appeal against a sentence imposed upon him on the ground that it is manifestly excessive. On 5 August 2016, the applicant was sentenced to a term of imprisonment of eight years, and the learned sentencing judge made a declaration pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld). The applicant was also sentenced to a term of imprisonment of 12 months in respect of a count of common assault, and six months for threatening to kill in a way likely to cause fear of bodily harm. He does not apply for leave to appeal against those two sentences.

The complainant was BN. She and the applicant began a relationship in August 2011 when Ms BN had just turned 16. The applicant was then 28 years old. Ms BN and the applicant moved into a house together. The relationship was a stormy one. They would argue. As will appear, the applicant threatened Ms BN in a variety of ways. One of these ways was to tell her that he would tie her up and put her in a shipping container at the rear of the house. As will appear, this is one of the things that he eventually did.

On 24 November 2012, after a period of separation, Ms BN attended at the applicant’s house and Mr Scott and Ms Lloyd with their six year old son also attended, as well as another couple. There was drinking, although Ms BN did not drink alcohol herself. At about 8 o’clock, Mr Scott and Ms Lloyd and their son left the house to drive the other couple home. While they were gone, the applicant and Ms BN began to argue. The couple with their young son then returned to the house, where they intended to stay the night. Mr Scott attempted to prevent the argument between the applicant and Ms BN. This was ineffective.

The applicant then stood over Ms BN and put his right thumb to her left temple. He pushed her head down sideways and smashed it down a number of times onto a side table. He put his hand around her neck and held her down on the couch. He used his elbow to hit her about five times to the face. He then picked her up by her hair and, lifting her body in that way, threw her down onto the tiled floor. She landed on her back and suffered pain and was winded. Ms Lloyd and her son then left. Mr Scott stayed in attempt to stop the applicant hurting Ms BN further.

The applicant headbutted Ms BN a number of times. She was bleeding and crying while she begged him to stop. He did not stop.…

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 Galleghan

Details

AGLC: R v Galleghan [2017] QCA 186
Case: [2017] QCA 186
Decision Date: 31 AUGUST 2017

CaseChat Overview and Summary

In the matter of the Queen versus Galleghan, Robert James, the applicant has applied for leave to appeal against a sentence imposed upon him on the grounds that it is manifestly excessive. The applicant was sentenced to a term of imprisonment of eight years for the offence of torture, with a declaration pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld). The applicant has not applied for leave to appeal against his sentences for counts of common assault and threatening to kill. The legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive. The court considered the nature of the offence, the applicant's criminal history, and the precedent cases cited by the applicant. The court found that the sentence was within the proper exercise of discretion and dismissed the application for leave to appeal. The court emphasised that the sentence was not manifestly excessive, as the offence involved painful, sadistic and calculated physical and mental torture. The order of the court is that leave to appeal against sentence is refused.

Orders