R v Row - [1997] QCA 481

COURT OF APPEAL

[1997] QCA 481

MACROSSAN CJ
DOWSETT J

HELMAN J

CA No 382 of 1997
THE QUEEN
v.

GAVIN LLOYD ROW ROW

Applicant

BRISBANE
..DATE 18/11/97
181197 T17/SA2 M/T COA264/97
to do grievous bodily harm and on 10 September the learned Judge
sentenced him to imprisonment for three and a half years for
unlawfully wounding. On the same day the applicant pleaded
guilty to two counts of assault occasioning bodily harm while
armed and for each of those offences his Honour imposed a
sentence of imprisonment for three months. The three sentences
were to be served concurrently. His Honour made no
recommendation for early consideration of parole despite an
application that he do so.

His Honour in sentencing the applicant recited the facts of the matter that is now before this Court. He said he concluded on the evidence that had been placed before the jury that the applicant had been affected by alcohol, that he had been arguing with his de facto wife in a yard when the complainant called out to the applicant and the de facto wife. His Honour said that it seemed that the complainant had no intention of interfering with the dispute between the applicant and his de facto wife. The applicant's de facto wife ran past the complainant into the house. "Without saying very much at all", as his Honour put it, the applicant struck the complainant heavily with a machete four times in all. The first blow was taken by the complainant on his face and he suffered very severe wounding to the face as a consequence, the second and third blows were taken on his left arm which he was using to protect himself, and the fourth blow was taken on his back as he was in the act of retreating into the house. His Honour said that there had been shown to be no justification for the applicant's attack on the complainant. The complainant suffered serious injuries in the attack.

181197 T17/SA2 M/T COA264/97

His Honour referred to the fact that in a technical sense one problem in the case lay in identifying the relevant facts on sentencing: the applicant had pleaded guilty to a charge of unlawfully wounding and was to be sentenced for that offence. His Honour mentioned that the Crown had chosen to proceed with a charge of unlawfully wounding with intent to do grievous bodily harm, and the jury's verdict meant that any intention on his part to do any serious injury to the complainant must be treated as having been rejected. His Honour referred to the fact that it was important that he not treat the case as one involving the doing of grievous bodily harm since the doing of grievous bodily harm had not been an element of the charge before the jury.

His Honour mentioned the applicant's plea of guilty to the assault occasioning bodily harm charges to which I have referred and said that the applicant's pleas of guilty to those…

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 Row

Details

AGLC: R v Row [1997] QCA 481
Case: [1997] QCA 481
Decision Date: 18/11/1997

CaseChat Overview and Summary

In the Court of Appeal of Queensland, the matter of the Queen versus Gavin Lloyd Row Row was heard. The applicant, Gavin Row, had been sentenced to imprisonment by the learned Judge for unlawfully wounding, and for two counts of assault occasioning bodily harm while armed. The sentences were to be served concurrently. Row applied for leave to appeal against his sentence, which was refused by the trial Judge. This decision is the subject of the current appeal.

The central issue before the Court of Appeal was whether the trial Judge had erred in his sentencing of the applicant. The applicant's counsel argued that the trial Judge had not sufficiently considered the applicant's pleas of guilty, and that too much weight had been placed on the applicant's criminal history. The Crown Prosecutor contended that the sentencing process had been correctly carried out, and that the trial Judge had given a reasonable discount for the mitigating factors.

The Court of Appeal found no error in the sentencing process. The Chief Justice, along with Dowsett J and Helman J, concluded that the trial Judge had given a reasonable discount for the mitigating factors, and that it was proper for the trial Judge to consider the applicant's criminal history and subsequent offences in determining the sentence. The application for leave to appeal was refused.

The Court of Appeal, in refusing the application, emphasised that it was not always possible for a sentencing Judge to be precise about the sentence that might otherwise have been imposed in hypothetical circumstances. However, it was clear in this case that a reasonable, perhaps even a considerable, discount was given by the trial Judge for the mitigating circumstances. The Court of Appeal also found that the trial Judge had correctly taken into account the applicant's criminal history and subsequent offences. The application for leave to appeal against the sentence was therefore refused.

Orders