R v Richmond - [1997] QCA 321

[1997] QCA 321

COURT OF APPEAL
McPHERSON JA
PINCUS JA

BYRNE J

CA No 233 of 1997
THE QUEEN
v.

STUART PHILLIP RICHMOND

BRISBANE
..DATE 17/07/97
170797 T12/SA2 M/T COA149/97
McPHERSON JA: The applicant pleaded guilty in the District
Court at Brisbane to one count of doing grievous bodily harm
committed on 21 September 1996, one count of making a false
statement in writing in a passport application form and, in that
connection, one count of forgery, those two offences being
committed respectively on 24 and 25 February 1997.

On 9 May 1997, he was sentenced to imprisonment for four months on each of the second and third counts, to be served concurrently but commencing on 28 February 1997, and to imprisonment for three years cumulative on the sentences for counts 2 and 3 in respect of the grievous bodily harm offence.

It is necessary to recall that the function of this Court on an application of this kind is not to review the sentence in order to see whether we individually, or as a Court, would have imposed the same or a higher or lower sentence. Our function is to determine whether the sentence or sentences imposed are within the area of a proper sentencing discretion and whether that discretion has not miscarried in any material respect.

The most serious offence in this instance was, as the learned sentencing Judge recognised, that of grievous bodily harm. The applicant became involved in an altercation in the Brunswick Street mall on the evening of 21 September 1996. A chase ensued in which the applicant tried to run away but was pursued by the complainant, as he turned out to be. The applicant eventually stood his ground and was seen to strike the complainant in the head with what one witness described as great force, felling him to the ground, whereupon the applicant proceeded to kick him 170797 T12/SA2 M/T COA149/97

several times in the head and the abdomen.

It is, I think, convenient to take the account of events from the statement given by Andre Starke, a 22-year-old student from Queensland University, who had been in the Brunswick Street mall at about 12.35, when she says she saw two persons yelling and hassling each other. "They appeared," she said, "to be very agitated. Both were behaving aggressively towards each other."

She observed a male person, whom she identifies as the complainant, pull his arm back, clench his fist and hit the other male person in the head with great force. The complainant, as he was, then fell to the ground and she saw the prisoner start bounding around like a boxer, staring down at the male on the ground. She then saw the prisoner kick the complainant several times in the abdomen area and several times in the head. She described his shoes as being very large sandshoes. He kept bouncing around with his fists clenched and she saw that the complainant had not moved since falling to the ground.

She…

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 Richmond

Details

AGLC: R v Richmond [1997] QCA 321
Case: [1997] QCA 321
Decision Date: 17/07/1997

CaseChat Overview and Summary

In the case of The Queen v Stuart Phillip Richmond, the appellant sought leave to appeal against his sentence in the Court of Appeal. The District Court at Brisbane had sentenced the appellant to imprisonment for three years for grievous bodily harm, with concurrent sentences of four months each for making a false statement in writing in a passport application form and forgery. The appellant had pleaded guilty to these charges and argued that his actions were in self-defence. The Court of Appeal was tasked with determining whether the sentence was within the area of proper sentencing discretion and whether that discretion had not miscarried in any material respect.

The Court considered the nature and seriousness of the grievous bodily harm offence, which involved the appellant striking and kicking the complainant multiple times in the head and abdomen. The appellant's actions went beyond what was necessary and reasonable for self-defence, resulting in severe injuries to the complainant. The Court also took into account the appellant's criminal history, which included prior convictions for violent offences, and his attempt to escape to Vancouver to avoid prosecution. The Court concluded that the sentence for the grievous bodily harm offence was not excessive and that the appellant's deprived childhood did not justify the degree of violence exhibited.

The Court of Appeal found that the sentencing discretion had not miscarried and dismissed the appellant's application for leave to appeal against his sentence. The Court of Appeal judges, McPherson JA, Pincus JA, and Byrne J, all agreed with the decision. McPherson JA, who authored the majority judgment, concluded that the application for leave to appeal against sentence was refused.

Orders