R v Ishibashi - [1998] QCA 342

[1998] QCA 342

COURT OF APPEAL
PINCUS JA
McPHERSON JA

AMBROSE J

CA No 88 of 1998
THE QUEEN
v.

YOSHIMASA ISHIBASHI	(Applicant)
BRISBANE ..DATE 29/05/98
JUDGMENT
290598 T4/JAP/20 M/T COA 120/98

McPHERSON JA: The applicant seeks leave to appeal against a sentence of six years' imprisonment with no recommendation for early parole. It resulted from his conviction in the District Court at Southport following a plea of guilty on a charge of doing grievous bodily harm with intent to disfigure.

The circumstances of the offence are as follows. The complainant is the applicant's wife. She claimed that the applicant seemed to lose all interest in her after their marriage in 1991, which had enabled the applicant to continue to reside in Australia. Frequent arguments between the applicant and the complainant began shortly after their marriage, and on occasions, or so it is said, the applicant assaulted the complainant. He sometimes accused her of having an affair and threatened her saying, at least on one occasion, that he wanted to make her ugly by setting her on fire.

I am not persuaded that these matters are relevant to sentencing for the particular offence in issue except, perhaps, as going some way to meet an argument that the offence in this instance was simply an isolated incident resulting from irrational behaviour on the particular occasion. It is, however, right to say that one can gather from the psychiatric report in respect of the applicant that he also complained of occasions on which he was assaulted by the complainant.

On the day in question the applicant had attended hospital where he received treatment and advice. The complainant says that she noticed that he was unusually silent during that day.

2 JUDGMENT

290598 T4/JAP/20 M/T COA 120/98

At about 5.30 p.m. they went to a video store and on the way
the complainant met a male friend to whom she stopped to talk.

She noticed that as she was talking to him the applicant

circled them a number of times.

When they arrived home the applicant told his wife he was so happy to have her, as she had a good heart and that he was evil and bad. Before leaving he ran around the unit. He returned after about 20 to 30 minutes in an angry and aggressive mood and accused her of having an affair. He claimed that he was God and that the complainant was evil. He raised his hands towards her neck but she pushed him away. He pulled the telephone off the wall and left the unit. When he returned she was talking to a female friend on the telephone, but the applicant accused her of talking to her boyfriend.

He went into the kitchen while she sat in the lounge. She had earlier taken the precaution of removing the knives from the kitchen drawer. The applicant returned to the lounge and began to punch the complainant on the face with his clenched fists.

When she fell to…

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 Ishibashi

Details

AGLC: R v Ishibashi [1998] QCA 342
Case: [1998] QCA 342
Decision Date: 29/05/1998

CaseChat Overview and Summary

In the matter of R v Ishibashi, the applicant, Yoshimasa Ishibashi, sought leave to appeal against a sentence of six years' imprisonment, with no recommendation for early parole. The sentence resulted from the applicant's conviction in the District Court at Southport, following a guilty plea to a charge of inflicting grievous bodily harm with intent to disfigure. The victim in this case was the applicant's wife, who suffered significant injuries including the amputation of her little finger, lacerations, a split lip, and other injuries. The applicant argued that the sentence was manifestly excessive, and that a sentence of four years would have been more appropriate, taking into account mitigating factors.

The legal issues before the Court of Appeal were whether the sentence imposed was manifestly excessive and whether there were any compelling reasons to recommend parole or suspend the sentence. The Court examined comparable sentences in similar cases, considering factors such as the severity of the injuries, the presence of premeditation, and the use of a weapon. The Court found that the six-year sentence was excessive, given the absence of premeditation or a weapon in this case, and the less severe nature of the injuries compared to other cases cited.

The Court of Appeal allowed the appeal and varied the sentence, reducing it to imprisonment for four years. The Court emphasised the seriousness of the offence and its permanent consequences for the victim but concluded that the initial six-year sentence was disproportionate. The Court confirmed the sentence below in all other respects.

Orders