R v Hoogsaad - [2001] QCA 27

[2001] QCA 27

COURT OF APPEAL

McPHERSON JA
MACKENZIE J

MULLINS J

CA No 277 of 2000
THE QUEEN
v.

CRAIG JOHN HOOGSAAD

BRISBANE

..DATE 09/02/2001

JUDGMENT

09022001 T6/SE25 M/T COA 19/2001

McPHERSON JA: On the night of 19 November 1999 the complainant Gemini was parked with people sitting in it. They included the driver, Robin Boyd, and the applicant now before the Court, who is Craig Hoogsaad.

Norman Gosling was at the Queens Hotel in Ayr with a friend
named Gavin Wain. It was the end of the cane cutting season
and there were numbers of men drinking there.

For some reason an argument broke out between Gavin Wain and Robin Boyd, which was interrupted when Wain broke the windscreen of the Gemini. Boyd initially drove off but then returned to the scene demanding compensation for the broken windscreen. The complainant himself was throughout a mere bystander or observer and took no part in the argument. Then the applicant suddenly struck him with a crowbar. Johnson, who was one of the applicant's companions, said he saw the applicant hit the complainant on the arm and the leg with the bar, whereupon he fell to the ground and the applicant then hit him on the head with the bar. Johnson thought that the complainant had hit his head on the gutter as well.

Another of the applicant's companions saw the applicant "hammer" the complainant with the iron bar. He hit him "a few times" around the arms and legs and then used the bar to strike him two blows on the head. The complainant was knocked unconscious. He was taken to the local hospital and then transferred to intensive care at the Townsville General Hospital.

2 JUDGMENT

09022001 T6/SE25 M/T COA 19/2001

Dr Sarah Olsen, who examined him on admission, describes how she found a large boggy parietal area which was tender and had a small laceration with brain matter protruding. Scans disclosed a substantial skull fragment of 1½ cms in dimension associated with a depressed fracture and intracerebral haematoma.

The complainant was at once taken to the operating theatre where a 5 x 4 cm depressed skull fragment was removed. He was discharged on 29 November, but returned in February of the following year to have an acrylic plate fitted to his head.

The complainant, who was 32 years old at the time, now has a speech impairment which one may suspect will be permanent. He suffers constant headaches, numbness around his head and fingers, and a sore jaw that he is unable to open properly. On some occasions he has loss of sight. He has pains in his arms and legs. He suffers from sleep disruption through constant headaches, ultra sensitivity to noise and loss of body strength. As a result of all this, and particularly of his speech impairment, he is reluctant to go out and mix with friends or other company because of the embarrassment he feels.

He has a wife and children aged ten, eight…

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 Hoogsaad

Details

AGLC: R v Hoogsaad [2001] QCA 27
Case: [2001] QCA 27
Decision Date: 09/02/2001

CaseChat Overview and Summary

In the matter of The Queen versus Craig John Hoogsaad, the applicant was convicted in the District Court for causing grievous bodily harm to the complainant, Gemini. The Court of Appeal was presented with an application for leave to appeal against the applicant's sentence of five years imprisonment. The applicant argued that the sentencing judge should have recommended him for parole after two years, which would have resulted in an earlier release. The Court considered the nature of the attack, the use of a potentially lethal weapon, and the impact on the complainant, who suffered significant disabilities as a result of the attack.

The legal issues before the Court were whether the sentence imposed was manifestly excessive and whether the sentencing judge should have recommended parole after two years. The Court compared the present case to R v. Swayn, where a similar sentence was imposed for grievous bodily harm in somewhat similar circumstances. The Court found that while the applicant's conduct was reprehensible, the differences between the two cases were not so significant as to warrant a different outcome. The Court also noted that the use of a weapon in the present case was a serious factual aggravation of the offence.

The Court of Appeal found that the sentence imposed on the applicant was not manifestly excessive and dismissed the application for leave to appeal. The Court emphasised the importance of transparency in the sentencing process and encouraged the practice of making explicit any allowances made for a plea of guilty and other mitigating circumstances. The Court also highlighted the significant impact of the attack on the complainant, who suffered severe and lasting disabilities as a result of the assault. Ultimately, the Court found that the differences between the present case and R v. Swayn were not sufficient to warrant a different outcome.

Orders