R v Hollis - [2020] QCA 7

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hollis [2020] QCA 7

PARTIES:

R
v
HOLLIS, Peter Russell
(applicant)

FILE NO/S:

CA No 156 of 2019
DC No 235 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 7 May 2019 (Loury QC DCJ)

DELIVERED ON:

4 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2019

JUDGES:

Sofronoff P and Fraser JA and Boddice J

ORDERS:

1.   Leave to adduce further evidence on the application for leave to appeal against sentence be refused.

2.   The application for leave to appeal against sentence be granted.

3.   The appeal be allowed.

4.   The sentence be set aside, to the extent that no conviction be recorded, but not otherwise.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of assault occasioning bodily harm, whilst armed – where the applicant was fined $5,000 and a conviction was recorded – where the applicant seeks leave to appeal the sentence on the ground that it was manifestly excessive – where the applicant seeks leave to adduce further evidence challenging the truthfulness of the complainant’s victim impact statement – where the applicant did not have a criminal history at the time of the commission of the offence – where a heated dispute arose between the applicant and the complainant who were known to each other – where the applicant threw multiple chairs at the complainant – where the complainant was struck by two of the chairs and sustained injuries – where the applicant submitted the sentencing Judge erred in giving undue weight to the victim impact statement – where the applicant submitted the sentencing Judge erred in finding the recording of a conviction would not affect the applicant’s economic and social well-being – whether leave to adduce further evidence should be allowed – whether the new material sought to be adduced as evidence would have materially impacted upon the sentence – whether the sentencing Judge erred in failing to have regard to relevant mitigating factors when exercising the discretion to record a conviction – whether the sentencing discretion miscarried

Penalties and Sentences Act 1992 (Qld), s 9(10A)

COUNSEL:

G Page QC for the applicant
J D Finch for the respondent

SOLICITORS:

PHV Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with Boddice J.
FRASER JA: I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.
BODDICE J: On 7 May 2019, the applicant pleaded guilty to one count of assault occasioning bodily harm, whilst armed. On the same date, he was fined $5,000 (payable within six months). A conviction was recorded.
The applicant seeks leave to appeal that sentence. The sole ground, should leave be granted, is that the sentence imposed was manifestly excessive.
The applicant does not contend that a fine of $5,000 was itself manifestly…

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 Hollis

Details

AGLC: R v Hollis [2020] QCA 7
Case: [2020] QCA 7
Decision Date: 4 February 2020

CaseChat Overview and Summary

In this case, the applicant, who was 71 at the time of the offence and 74 at the time of sentencing, pleaded guilty to one count of assault occasioning bodily harm while armed. He was fined $5,000, and a conviction was recorded. The applicant seeks leave to appeal the sentence on the ground that it was manifestly excessive, and to adduce further evidence challenging the truthfulness of the complainant’s victim impact statement.

The legal issues before the court were whether leave to adduce further evidence should be allowed, whether the new material sought to be adduced as evidence would have materially impacted upon the sentence, and whether the sentencing discretion miscarried. The applicant submitted that the sentencing Judge erred in giving undue weight to the victim impact statement, in finding the recording of a conviction would not affect the applicant’s economic and social well-being, and in failing to have regard to relevant mitigating factors when exercising the discretion to record a conviction.

The court found that the sentencing Judge did not miscarried in her discretion. The court held that the sentence was not manifestly excessive, and the applicant was not entitled to leave to adduce further evidence as it did not add to the information provided to the sentencing Judge, and contained irrelevancy, hearsay or subjective opinion. The court held that the sentencing discretion did not miscarry as the sentence was not manifestly excessive, and the recording of a conviction did not affect the applicant’s membership of the Royal Queensland Yacht Squadron and the Maroochydore Yacht Club.

The final orders of the court were to refuse leave to adduce further evidence on the application for leave to appeal against sentence, to grant the application for leave to appeal against sentence, to allow the appeal, and to set aside the sentence to the extent that no conviction be recorded, but not otherwise.

Orders

Orders of the court

1. Leave to adduce further evidence on the application for leave to appeal against sentence be refused.

2. The application for leave to appeal against sentence be granted.

3. The appeal be allowed.

4. The sentence be set aside, to the extent that no conviction be recorded, but not otherwise.

Background

Background to the litigation

In support of that application, the applicant seeks leave to adduce evidence, being two affidavits. Those affidavits address factual matters said to be relevant to the sentencing hearing.Background The applicant was born on 31 May 1945. He was aged 71 at the time of commission of the offence. He was about to turn 74 at the date of sentence. At the time of sentence and of the commission of the offence, the applicant was retired, having previously held occupations as a solicitor, real estate licensee and a sometime pastoralist. The applicant did not have a criminal history at the time of the commission of the offence. He did have subsequent convictions, being two contraventions of a later domestic violence order made in late 2017. Those contraventions were committed on 9 December 2017 and January 2018. The applicant was fined $800 for both offences, on 2 August 2018. No conviction was recorded for either offence.Offence The victim of the offence was a female complainant aged 55 years. She had known the defendant for some time. There was a dispute at sentence as to whether they were in a relationship at the time of the offence. The sentence proceeded on the basis it was unnecessary to determine the true position. On the day of the offence, the applicant and the complainant held a family gathering at the applicant’s residence. Alcohol was consumed during and after that family gathering. In the evening, a heated dispute arose between the applicant and the complainant in relation to the applicant’s adult daughter. There were unpleasant verbal exchanges between the applicant and the complainant. At one point, the applicant threw wicker chairs at the complainant. One struck the complainant on her left arm, causing a five to six centimetre laceration. Another struck the complainant on the head, causing a superficial two centimetre laceration. Two other wicker chairs thrown in the direction of the complainant did not strike the complainant. The complainant took refuge in another part of the house. She locked herself inside that area and called police. The time was approximately 10.40 pm. Police and an ambulance arrived at approximately 11 pm. Police observed blood on the top of the complainant’s head and a laceration on her forearm. CCTV footage from a camera installed in the back yard depicted the applicant throwing chairs at the complainant. The complainant declined to be taken to hospital and declined to make a formal complaint. Police obtained a temporary protection order against the applicant on behalf of the complainant. In late 2017, the complainant made a formal complaint to police in relation to events on 16 June 2016 and subsequent matters involving the applicant. The applicant participated in a police interview on 28 February 2018. He admitted throwing chairs at the complainant. He said he wanted her to leave and to stop provoking him. He accepted one of the chairs struck her head.Sentencing remarks The sentencing Judge noted that the applicant had pleaded guilty and the offence had been committed in the context of “something of a relationship with the complainant”[1] and after drinking throughout the day and a continuing argument. The sentencing Judge described the applicant’s behaviour, for a man of his age and background, as “utterly disgraceful”.[2][1]AB39/2.[2]AB39/13.

Evidence

Evidence Before The Court

The sentencing Judge concluded:“General deterrence is an important consideration to the exercise of my discretion, in light of the insidious nature of domestic violence and the prevalence of it in our community. Because of your very long, blameless life, I will accede to the submission that has been made to you and I will convict and fine you $5000. I have given consideration to whether a conviction ought to be recorded and in my view, a conviction should be recorded to reflect the serious nature of the offence committed, as it was, against a woman with whom you had some sort of relationship.”[4][4]AB41/3-10.Further evidence The applicant seeks leave to adduce further evidence, being an affidavit from the applicant and an affidavit from a friend, Lee Hurst. Each of the affidavits contain assertions challenging the truthfulness of the complainant’s statements in the victim impact statement. The applicant’s affidavit also details the circumstances in which he entered the plea of guilty, the basis upon which he was advised by his legal representatives to enter that plea and the consequences of a conviction on his social and economic wellbeing.Applicant’s submissions The applicant submits the sentencing Judge erred in the exercise of her discretion in referencing Court attitudes towards violence in a domestic relationship. The indictment had been amended specifically to delete an allegation that the offence was a domestic violence offence. The sentencing Judge also declined to make an order declaring the offence to be a domestic violence offence. The sentencing Judge also erred in giving undue weight to the victim impact statement. The applicant did not agree with the majority of what was said in that statement. There was a concession by the prosecution that many of the matters contained within that statement were not relevant to the commission of the offence. The further affidavit material establishes the falsity of many assertions in that statement. The sentencing Judge further erred in concluding that the applicant’s assertion to police that he felt provoked by the argument provided little explanation for his conduct, and in having regard to the applicant’s subsequent breaches of a different temporary protection order. No attempt was made by the trial Judge to disregard those non-recorded convictions. Finally, the applicant submits the sentencing Judge erred in finding that the recording of a conviction would not affect the applicant’s membership of the Royal Queensland Yacht Squadron and the Maroochydore Yacht Club. Submissions had been specifically advanced as to the impact of the recording of a conviction on the applicant’s economic and social well-being, including his membership of those organisations.Respondent’s submissions The respondent submits the application to adduce new evidence ought to be dismissed as the new evidence does not add to the information provided to the sentencing Judge, and contains irrelevancy, hearsay or subjective opinion. The respondent accepts that, if the sentencing discretion is found to have miscarried, the affidavit material would be relevant to any re-exercise of that discretion.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hollis [2020] QCA 7
PARTIES:	R v HOLLIS, Peter Russell (applicant)
FILE NO/S:	CA No 156 of 2019 DC No 235 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 7 May 2019 (Loury QC DCJ)
DELIVERED ON:	4 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2019
JUDGES:	Sofronoff P and Fraser JA and Boddice J
ORDERS:	1. Leave to adduce further evidence on the application for leave to appeal against sentence be refused. 2. The application for leave to appeal against sentence be granted. 3. The appeal be allowed. 4. The sentence be set aside, to the extent that no conviction be recorded, but not otherwise.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of assault occasioning bodily harm, whilst armed – where the applicant was fined $5,000 and a conviction was recorded – where the applicant seeks leave to appeal the sentence on the ground that it was manifestly excessive – where the applicant seeks leave to adduce further evidence challenging the truthfulness of the complainant’s victim impact statement – where the applicant did not have a criminal history at the time of the commission of the offence – where a heated dispute arose between the applicant and the complainant who were known to each other – where the applicant threw multiple chairs at the complainant – where the complainant was struck by two of the chairs and sustained injuries – where the applicant submitted the sentencing Judge erred in giving undue weight to the victim impact statement – where the applicant submitted the sentencing Judge erred in finding the recording of a conviction would not affect the applicant’s economic and social well-being – whether leave to adduce further evidence should be allowed – whether the new material sought to be adduced as evidence would have materially impacted upon the sentence – whether the sentencing Judge erred in failing to have regard to relevant mitigating factors when exercising the discretion to record a conviction – whether the sentencing discretion miscarried Penalties and Sentences Act 1992 (Qld), s 9(10A)
COUNSEL:	G Page QC for the applicant J D Finch for the respondent
SOLICITORS:	PHV Law for the applicant Director of Public Prosecutions (Queensland) for the respondent