R v HBZ

Case [2020] QCA 73

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBZ [2020] QCA 73

PARTIES:

R
v
HBZ
(appellant/applicant)

FILE NO:

CA No 176 of 2019
DC No 21 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 6 June 2019; Date of Sentence: 10 June 2019 (Lynham DCJ)

DELIVERED ON:

17 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2020

JUDGES:

McMurdo and Mullins JJA and Boddice J

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence granted.

3.   Appeal against sentence allowed.

4.   Set aside the sentence imposed at first instance for count 1 and, in lieu, the appellant is sentenced to imprisonment for a period of two years with the parole release date fixed at 5 June 2020.

5.   The declaration as to pre-sentence custody and other orders made at first instance are confirmed.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL –  IN GENERAL AND PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION –  DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where the appellant was convicted of choking in a domestic setting – where word “choked” is undefined in the Criminal Code (Qld) – where the jury was directed that “choked” meant “to stop or hinder the breathing of a person” from the act of choking – where the appellant submits that a penal provision should be interpreted narrowly – where the history of the offence supports a purposive interpretation – whether the offence was not proved unless the act of choking caused the complete stoppage of breath

CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR ADEQUATE – where the offender was sentenced to imprisonment for two years and six months to be suspended after 15 months for an operational period of three years for choking in a domestic setting – where the offender had a good work history and no prior criminal history – where the offender’s conduct was less serious than offending in the comparable authorities relied on by the prosecution before the sentencing judge – where the offence was created to eliminate the conduct of choking due to the risk of serious consequences from an escalation of that type of conduct – where need for general deterrence – whether sentence was manifestly excessive

Acts Interpretation Act 1954 (Qld), s 14A, s 14B
Criminal Code (Qld), s 315, s 315A
Criminal Law (Domestic Violence) AmendmentAct 2016 (Qld), s 3
Fire Services Legislation Amendment Act 1994 (Qld), s 14

Burch v South Australia (1998) 71 SASR 12; [1998] SASC 7055, cited
R v A2 (2019) 93 ALJR 1106; [2019] HCA 35, followed
R v Green (No 3) [2019] ACTSC 96, distinguished
R v Lansbury [1988] 2 Qd R 180, considered
R v MCW [2019] 2 Qd R 344; [2018] QCA 241, considered
R v MDB[2018] QCA 283

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Details
AGLC
R v HBZ [2020] QCA 73
Case
[2020] QCA 73
Decision Date

CaseChat Overview and Summary

In the case of R v HBZ, the appellant was convicted of choking in a domestic setting and subsequently appealed against his conviction and sentence. The appellant argued that the trial judge erred in directing the jury on the definition of choking and that the verdicts on counts 1 and 2 were unreasonable. The court was tasked with deciding whether the jury's understanding of the term "choked" was correctly directed and if the sentence imposed was manifestly excessive.

The court found that the term "choked" in the context of the offence should be interpreted in a purposive manner, considering the history of the offence and the risk of serious consequences from such conduct. The court concluded that choking did not necessarily require a complete stoppage of breath. The appeal against conviction was dismissed, but the appeal against the sentence was allowed on the grounds that the sentence was manifestly excessive. The appellant was re-sentenced to imprisonment for two years with a parole release date set at 5 June 2020.

The court's reasoning was based on the fact that the appellant's conduct was less serious than in comparable authorities relied on by the prosecution. The court also considered the need for general deterrence and the fact that the appellant had a good work history and no prior criminal history. The court confirmed the declaration as to pre-sentence custody and other orders made at first instance.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence granted.

3. Appeal against sentence allowed.

4. Set aside the sentence imposed at first instance for count 1 and, in lieu, the appellant is sentenced to imprisonment for a period of two years with the parole release date fixed at 5 June 2020.

5. The declaration as to pre-sentence custody and other orders made at first instance are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The grounds of appeal are:(a) the learned trial judge erred in the direction given to the jury on the definition of choking;(b) the appellant was deprived of a fair trial, because of the manner in which the allegations of fact in count 1 were particularised;(c) the verdicts on counts 1 and 2 were unreasonable and cannot be supported, having regarded to the evidence.The evidence The complainant’s evidence-in-chief was as follows. The appellant was her partner on and off over four years commencing on December 2014. She had five children and the appellant was the father of the youngest child. She resided with her children at an address where the appellant would often stay. That happened on 8 July 2018. At the same time the complainant also had other family visiting her. The complainant spent the day cleaning and looking after the children and organising things, when she noticed that the appellant’s dog had urinated inside the house. She had already cleaned it up a couple of times and she told her son to inform the appellant. The appellant had been sleeping and got upset about being woken up. He went and grabbed the dog, picked him up, was hitting him into the ground and rubbing his face into the urine and said to the complainant words to the effect “You know, you did this. This is your fault. Is this better? Is this the way you want it to happen?”. The complainant then asked the appellant to leave. The complainant let the dog out and the appellant followed. The complainant then locked the door, told him to leave, and then went to retrieve his keys, wallet and phone from the bedroom, so he could go somewhere else. While the complainant was in the bedroom, she heard the door unlock, because the appellant had used the spare hidden key to get in. There were camp beds in the bedroom that the complainant had been setting up for her son’s friends who were having a sleepover, and she put the camp beds between herself and the appellant. She told the appellant that he could take his stuff and go. He became more aggressive and the complainant told him that he had to stop or she was going to call the police. When the appellant started picking up the camp beds, shoving them out of the way to get to the complainant, she called triple zero on her mobile phone. She started speaking and then:“[The appellant] moved the camp beds and he grabbed me, and he grabbed the phone, and then he put his hands around my neck – his right hand, and then he pushed on my shoulder at the same time to knock me onto the bed, and then he pinned me to the bed with his hand to stop me from speaking. So when I first started speaking, I could ask for help, but then the words wouldn’t come out, and I struggled to breathe.”The appellant then wrestled the phone from the complainant’s hand, hung up and smashed it on the ground beside the bed. The appellant used his right hand, so that it was almost in a “V” around her throat and “instead of squeezing, he just was on top of me and used his body weight as the force to stop me from speaking”. The complainant was unable to speak, felt pains in her chest and had black spots in her vision. She asked the appellant three or four times to stop, before she ran out of breath. It was probably for 70 seconds for which she could not breathe. After the incident stopped, the complainant asked the appellant to call an ambulance, because she could not breathe.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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