R v MCZ - [2018] QCA 240

[2018] QCA 240

COURT OF APPEAL

FRASER JA
PHILIPPIDES JA
McMURDO JA

CA No 60 of 2018
DC No 672 of 2017

THE QUEEN

MCZ Applicant

BRISBANE

THURSDAY, 27 SEPTEMBER 2018

JUDGMENT

FRASER JA: The applicant pleaded guilty to endangering particular property by fire (count 1), and causing grievous bodily harm (count 2); each offence being a domestic violence offence. The applicant was sentenced to concurrent terms of imprisonment of three years on count 1 and seven years on count 2 with parole eligibility after two years, including 362 days of pre-sentence custody declared to be time already served under the sentence. The applicant seeks leave to appeal against sentence. The applicant abandoned three grounds of appeal that contended the sentencing judge made specific errors. The remaining ground of appeal is that the sentence is manifestly excessive in the circumstances.

The sentence proceeded upon an agreed statement of facts. The 67 year old applicant and the 64 year old complainant had been in a de facto relationship for about 30 years. On an evening in February 2017, the applicant walked into their house in Cairns holding a bottle of whiskey in his hand. He looked at the glass of wine the complainant was holding while she watched TV and he smashed his whiskey bottle against a brick column. The applicant accused the complainant of being an alcoholic. He shouted and the complainant became frightened and left the room.

The applicant threatened to burn the house down, as he had previously threatened to do. The complainant asked him, “Well why don’t you fucking do it then?” She became increasingly frightened and ran into a bathroom. The applicant went to a shed about 10 to 15 metres from the house and collected a can of whipper snipper fuel. He manually lifted a garage roller door to gain entry to the part of the house where the complainant was then sitting on the toilet. The applicant stood about two steps in front of the complainant, took a step towards her, poured about 900 millilitres of the fuel onto the floor in front of the complainant’s feet and lit the fuel with a lighter.

The complainant tried to run out of the bathroom. She fell over with her legs in the flames. The applicant dragged the complainant through and away from the fire and left her on the hallway floor. The complainant walked out of the house and hosed water over her legs and shoulder. She saw skin falling off her legs. The complainant asked the applicant to ring an ambulance. He told her she was okay and did not need an ambulance. A neighbour called an ambulance and rendered assistance.

The complainant suffered 18 per cent total body surface area burns. There were deep dermal and full thickness burns to her back and both lower legs and feet. She underwent surgery three times over about three weeks. Without treatment, the extent of her burns would have been likely to endanger her life…

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 MCZ

Details

AGLC: R v MCZ [2018] QCA 240
Case: [2018] QCA 240
Decision Date: 27 SEPTEMBER 2018

CaseChat Overview and Summary

The applicant, MCZ, appealed against his sentence for domestic violence offences of endangering property by fire and causing grievous bodily harm. The applicant argued that the sentence was manifestly excessive, and the Court of Appeal was required to determine whether the sentence imposed was manifestly excessive given the circumstances of the offence and the offender's personal circumstances. The applicant submitted that the sentencing judge gave too much weight to the physical harm done to the complainant, failed to adequately take into account the applicant's antecedents, and failed to adequately take into account that the applicant was being sentenced for causing grievous bodily harm rather than causing grievous bodily harm with intent. The Court of Appeal found that there was no error in the sentencing judge's reliance on the extent of the injuries suffered by the complainant as a basis for distinguishing this case from other cases relied upon as comparable sentencing decisions. The sentencing judge did not adopt the prosecutor's incorrect summary of Amituanai and correctly identified as an important sentencing consideration the nature and extent of the damage to the complainant in circumstances where her injuries were foreseeable. The Court of Appeal found that the sentencing judge did not fail to accurately take into account the applicant's antecedents or that the applicant was being sentenced for causing grievous bodily harm rather than causing grievous bodily harm with intent. The Court of Appeal found that the only real question in the application was whether, having regard to the circumstances of the offence and the offender's personal circumstances, the sentence was manifestly excessive. The Court of Appeal found that the sentence was not manifestly excessive.

The Court of Appeal refused the application.

Orders