R v P; ex parte - [2002] QCA 69

[2002] QCA 69

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA
PHILIPPIDES J

CA No 20 of 2002

THE QUEEN

P Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 12/03/2002

JUDGMENT

WILLIAMS JA: The respondent pleaded guilty to six charges arising out of events which occurred on the 9th, 10th and 11th of March 2001.

There were two counts of assault occasioning bodily harm, one count of assault, one count of kidnapping, one count of attempted burglary with a circumstance of aggravation and one count of wilful damage.

On the charges of assault occasioning bodily harm, assault and wilful damage, a sentence of six months imprisonment was imposed. On the kidnapping and the attempted burglary charges, a sentence of three years imprisonment was imposed. The sentences were ordered to be served concurrently, and an order was made that they be suspended after the respondent had served 12 months of the period of imprisonment. From that sentence the Attorney-General has appealed.

The circumstances of the offences were as follows. They arose out of what could be described as a turbulent de facto relationship between the respondent and a woman named Jackson.

At the time they had a seven week old child; in addition, Jackson had a nine year old son named T by a prior relationship.

On the 9th of March 2001 the respondent and Jackson were in the process of moving residence. On the morning of that day, in the course of those activities, the respondent threw the complainant to the ground, kicked her above the buttock and on her arms, causing bruising, and dragged her about the house by her hair. Those events were the subject of count 1 on the indictment, a charge of assault occasioning bodily harm.

Later that afternoon there was an argument between the respondent, Jackson. She was sitting on the floor nursing the seven week old baby son. The respondent became abusive, inter alia saying, "I'm going to kill you if you don't get out of the room." He then grabbed her by the throat and began to choke her while she was still holding the baby. There was much yelling during the incident, including further threats that he was going to kill her.

Two other children aged 11 and 15 years were in the house at the time and they called on the respondent to stop the assault. Those events constituted count 2 on the indictment, another charge of assault occasioning bodily harm.

The following day, 10th of March, the respondent and Jackson were walking past some shops with the seven week old baby in a pram. The respondent asked the complainant to call her sister in order to obtain some drugs. She refused. The respondent then lifted the woman, Jackson, off the ground by the throat. A passer-by intervened. That was count 3 on the indictment, a charge of assault.

Then on the 11th of March, whilst they were in the process of moving furniture Jackson told the respondent that she would…

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 P; ex parte

Details

AGLC: R v P; ex parte [2002] QCA 69
Case: [2002] QCA 69
Decision Date: 12/03/2002

CaseChat Overview and Summary

The Court of Appeal in Queensland considered an appeal by the Attorney-General against the sentence imposed on a respondent who had pleaded guilty to six charges, including assault occasioning bodily harm, assault, kidnapping, attempted burglary, and wilful damage. The respondent's crimes occurred in the context of a turbulent de facto relationship and involved violence against the complainant, who was nursing their seven-week-old child at the time of one of the assaults. The respondent also threatened and assaulted a nine-year-old child, his son from a previous relationship, during the commission of these crimes. The respondent had a significant criminal history, including convictions for stealing, burglary, armed robbery, assault, arson, and damage to property.

The legal issues before the Court were whether the sentence imposed by the sentencing judge was adequate, particularly regarding the kidnapping charge, and whether the judge had appropriately considered the relevant mitigating and aggravating factors. The Court noted that the sentencing judge had imposed a concurrent sentence of six months imprisonment for three charges and three years for the remaining three charges, with the latter sentence being suspended after 12 months. The Attorney-General argued that the sentence was inadequate, particularly for the kidnapping charge, which involved holding a knife to the throat of a nine-year-old boy and demanding information about the whereabouts of his mother.

The Court of Appeal agreed with the Attorney-General and set aside the three-year sentence for the kidnapping charge, imposing a four-year sentence instead. The Court also set aside the order suspending the sentence after 12 months, leading to the issuance of a warrant for the respondent's arrest. The Court emphasised that the increased sentence should not be taken as an upper benchmark for similar offences but cautioned against ignoring the sentencing judge's assessment of the respondent's misconduct and criminal history.

Orders