R v Marshall - [2001] QCA 372

[2001] QCA 372

COURT OF APPEAL

DAVIES JA
WILLIAMS JA
WILSON J

CA No 153 of 2001

THE QUEEN

GRAHAME MARSHALL Applicant

BRISBANE

..DATE 10/09/2001

JUDGMENT

DAVIES JA: The applicant pleaded guilty in the District Court on 24 May this year to one count of assault occasioning bodily harm on 31 May 2000 and three counts of serious assault being assaults on a police officer on 2 October 2000. He was sentenced to a total of three years imprisonment with a recommendation for parole after serving 12 months. A declaration was made that 199 days
pre-sentence custody was deemed to be served under the sentence. He seeks leave to appeal against the sentence.

The applicant who is 46 years of age has an extensive criminal history mostly drug related or for offences of dishonesty but there are some previous offences which are specifically relevant to the sentence which was imposed here. In 1983 he was convicted of two offences of assault both in 1982 and offences of serious alarm or affront and resisting arrest in 1983. Then in April 1999 he was convicted of one offence of assaulting a policeman and one of obstructing police. And finally on 8 February 2000 he was convicted of breach of a Domestic Violence Order in December 1999. The first of the offences the subject of this application occurred only three months after he was dealt with for the domestic violence offence.

The first of offences the subject to this application involved an assault by the applicant on the 13 year old son of his defacto wife who attempted to intervene in a domestic dispute between the applicant and his defacto wife. The applicant then punched him in the eye causing a black eye. He was arrested and released on bail the following day.

The remaining offences were committed whilst the applicant was on bail. On 2 October two police officers, a man and a woman, were called to the applicant's residence on three occasions because of reports of domestic disputes. On the third of those occasions they witnessed an act of domestic violence by the applicant and forced their way into his unit at which time he retreated into the kitchen. When the male police officer followed him and attempted to arrest him the applicant pushed him in the chest causing him to stumble backwards. The applicant then armed himself with a 30 centimetre blade kitchen knife and brought the knife down narrowly missing the police officer's throat and chest when he jumped backwards. It was fortunate that the police officer managed to avoid serious injury. He could easily have been slashed badly in the throat or chest. The female police officer then struck the applicant's left arm and leg with her baton and they retreated from the kitchen. The male police officer then threatened the applicant with capsicum spray but the applicant continued to advance towards the police bearing his knife. The police officer then sprayed the applicant and the applicant…

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 Marshall

Details

AGLC: R v Marshall [2001] QCA 372
Case: [2001] QCA 372
Decision Date: 10/09/2001

CaseChat Overview and Summary

In the case of R v Marshall, the applicant, Grahame Marshall, sought leave to appeal against his sentence, which was imposed following his guilty plea to assault occasioning bodily harm and three counts of serious assault against a police officer. The sentencing was conducted in the District Court, and the applicant was sentenced to a total of three years imprisonment with a recommendation for parole after serving 12 months. The applicant argued that the sentence was manifestly excessive due to various mitigating factors. The Court of Appeal was tasked with determining whether the sentence was appropriate in light of the circumstances of the case and the relevant legal principles.

The central legal issue before the Court of Appeal was whether the sentence imposed by the District Court was manifestly excessive, taking into account the nature of the offences and the mitigating factors presented. The Court had to consider the severity of the applicant's conduct, which included assaulting his defacto wife's son and attacking police officers with a knife while on bail for another assault. The Court also needed to assess whether the deterrence aspect of sentencing, particularly in relation to protecting police officers, warranted a substantial deterrent sentence.

The Court of Appeal found that the sentence imposed by the District Court was not manifestly excessive. They noted that the nature of the conduct was very serious, as there was a significant threat of life-threatening injury to the police officers. The Court emphasised that deterrence was a primary consideration in cases involving assaults on police officers. The Court also considered the recommendation for parole after 12 months, which was seen as an appropriate mitigation of the sentence given the applicant's early plea and his injuries. The Court concluded that the sentence was within the appropriate range and thus refused the application for leave to appeal.

The Court of Appeal, consisting of Davies JA, Williams JA, and Wilson J, unanimously refused the application for leave to appeal against the sentence.

Orders