R v Hudson; ex parte - [2002] QCA 239

[2002] QCA 239

COURT OF APPEAL

DAVIES JA
WILLIAMS JA
JERRARD JA

CA No 124 of 2002

THE QUEEN

GARY PAUL HUDSON Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 03/07/2002

JUDGMENT

JERRARD JA: On 14 October 2001 Gary Paul Hudson returned to the residence he shared at Kowanyama with his then de facto partner, Katherine Florrie George. She had been drinking alcohol at her sister's home and was very angry with him for having gone away that day without telling her. They argued. He told her to leave and when she did not he picked up a steel chair and chased her down the stairs and across a roadway. She tripped and fell, holding her arm up to protect herself, and he struck her on that arm once with the chair. She suffered a fractured left humerus and bruising to her left forearm, and she now describes that arm as deformed.

On 21 March 2002 he pleaded guilty in the District Court at Kowanyama to one count of having unlawfully done grievous bodily harm to Ms George, and one count of having knowingly contravened a domestic violence order made on 25 January 2001. He was sentenced to six months' imprisonment. The Attorney-General appeals to this Court, arguing that the sentence imposed for unlawfully doing grievous bodily harm was manifestly inadequate.

Mr Hudson was 40 years old when he committed that offence. He had been convicted before, in six separate Court appearances, of 13 offences involving assault, with the first Court appearance being on 25 November 1981. The other dates were September 1982, January 1983, December 1987, May 1988 and July 1999. He had been imprisoned for offences of assault in November '81, September '82, May 1988 and July 1999. The longest sentences were three months, imposed on each of the May 1988 and July 1999 hearings. Seven of those prior assault offences were ones of assault occasioning bodily harm, and one was an offence of aggravated assault on a female.

The Attorney-General complains that this case is a serious example of an offence of unlawfully causing grievous bodily harm, since it involved the use of a weapon which appears to have caused an injury of a permanent nature. Further, Mr Hudson has a significant history of committing offences in which violence is used by him on others, and short periods of imprisonment imposed on other occasions have not effectively deterred him from again resorting to violence.

As against that it was said without contradiction on his behalf to the learned sentencing Judge that Mr Hudson was a well liked and well respected member of the Kowanyama community. - He was described as a hard working man. He had worked for many years, the Court was told, since age 17 outside that community. For example, at Comalco as a trades assistant labourer, as a ringer at Billies Lagoon Station, at Sudley Station, and as a truck driver. He has lived apparently permanently in Kowanyama since 1996, and has what is…

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 Hudson; ex parte

Details

AGLC: R v Hudson; ex parte [2002] QCA 239
Case: [2002] QCA 239
Decision Date: 03/07/2002

CaseChat Overview and Summary

In this case, the respondent, Gary Paul Hudson, was convicted of unlawfully causing grievous bodily harm to his de facto partner, Katherine Florrie George, and of contravening a domestic violence order. He was sentenced to six months' imprisonment. The Attorney-General, on behalf of the Crown, appealed the sentence, arguing that it was manifestly inadequate. The Court of Appeal considered the appeal and found that the sentence was indeed inadequate given Hudson's history of violence and the use of a weapon in the offence. The Court found that a sentence of two years' imprisonment, suspended after nine months, was more appropriate. The appeal was allowed, and the sentence was set aside and replaced with the new sentence.

The legal issues the Court of Appeal needed to decide included whether the original sentence was manifestly inadequate and, if so, what the appropriate sentence should be. The Court of Appeal considered the relevant principles of sentencing, including the need for deterrence, denunciation, and rehabilitation, as well as the need to consider the offender's criminal history, the circumstances of the offence, and any mitigating factors. The Court of Appeal also considered relevant previous decisions of the Court of Appeal and other courts, as well as the Aboriginal and Torres Strait Islander Women's Task Force on Violence Report.

The Court of Appeal found that the original sentence of six months' imprisonment was manifestly inadequate because of Hudson's history of violence and the use of a weapon in the offence. The Court of Appeal considered that the sentence should be less than that imposed in similar cases where the offender had used a weapon and had a history of violence, but more than that imposed in cases where the offender had not used a weapon or had fewer prior convictions. The Court of Appeal also considered the mitigating factors, such as Hudson's plea of guilty, his apparent remorse, and the fact that he desisted after one blow. The Court of Appeal found that a sentence of two years' imprisonment, suspended after nine months, was appropriate because it reflected the seriousness of the offence, Hudson's criminal history, and the mitigating factors.

The final orders of the Court of Appeal were that the appeal by the Attorney-General be allowed, that the sentence of six months' imprisonment be set aside, and in lieu thereof the respondent be sentenced to imprisonment for two years to be suspended after he had served nine months of that sentence, such suspension to be for a period of two years during which Hudson must not commit another offence punishable by imprisonment.

Orders