R v Grabbe

[1999] QCA 337

99.337

COURT OF APPEAL

McPHERSON JA DERRINGTON J MACKENZIE J

CA No 255 of 1999
THE QUEEN
v.

KLINT JAI GRABBEApplicant

BRISBANE
..DATE 19/08/99
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McPHERSON JA: This is, in form, an application for leave to
appeal against a sentence imposed in the District Court at
Ipswich for an offence of unlawful assault occasioning
bodily harm. The offence was committed under these
circumstances.

The applicant, who is a 19-year-old man, who at the time in question was a student living at a house in Gatton, woke up one morning to hear his neighbour using a chainsaw on a tree on the property next door. The applicant had been at a party the previous night, and he resented this interference with what, one may assume, was necessary sleep at that hour.

He asked, in terms that are not precisely disclosed in the record, that the neighbour stop using his chainsaw; but his request was denied. He then resorted to the use of an airgun to fire a pellet at the neighbour, which struck the neighbour in the buttock causing some mild injury in the form of swelling and reddening of the target area.

It was for this offence that he was prosecuted, and to which he pleaded guilty in the District Court. The learned Judge sentenced him to perform 240 hours community service and placed him on probation for a period of three years.

An appeal was instituted against that sentence essentially
on the ground that it was excessive. The appeal was listed
for hearing today but, when called, the applicant did not
appear. We have had the benefit of submissions from
190899 T25-26/JB M/T COA199/99
Mr Copley on behalf of the Crown.
My conclusion is, however, that the sentence in terms at
least of the period of probation ordered, is excessive to
the occasion or the need to reform the applicant. It is,
I think, proper to say that the offence is not one that was,
by any means, negligible. It had a potential to injure the
victim more seriously than it did and it is, as the learned
Judge herself observed, quite unsatisfactory that people
should resort to firearms to get their own way.

I suppose it should also be added that, to many people in country towns, 9 o'clock in the morning is late and, if you need to sleep at that hour, then it is the result either of idleness or of your own fault.

In bearing all those matters in mind, it nevertheless appears to me that the period of probation ordered in this case was more than was required to bring home to the applicant the desirability of not taking the law into his own hands in this fashion, and to deter him from acting in this way in the future.

In the result I would grant the application and allow the appeal to the extent only of reducing the period of probation ordered by the learned Judge from three years to 12 months.

DERRINGTON J: I agree.
190899 T25-26/JB M/T COA199/99

MACKENZIE J: I agree.

McPHERSON JA: That will be the order of the Court.

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