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
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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.

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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 offences was relevant, as was his willingness to plead guilty to the charge of unlawfully wounding. It is clear that the applicant had indicated well before the trial his willingness to plead guilty to the charge of unlawfully wounding.

His Honour mentioned that the applicant's criminal history was something that could not be ignored in sentencing. That criminal history included a number of offences of assault: one an assault occasioning bodily harm dealt with in the Blackwater Magistrates Court in 1989 for which the applicant was fined and ordered to pay restitution, three instances dealt with in the Charleville Magistrates Court in 1991 for each of which the 181197 T17/SA2 M/T COA264/97

applicant was fined, and a further instance dealt with in the Woorabinda Magistrates Court in 1994 for which the applicant was ordered to perform 120 hours' community service. His Honour mentioned that the applicant had a number of convictions for violence and that some of those concerned offences of violence on women.

His Honour mentioned that the use of a weapon, such as a machete in this case, was a serious aggravating circumstance and he observed that Courts generally impose sentences designed to deter people from using weapons of that sort.

His Honour had the benefit of suggested comparable sentences put before him by both the Crown Prosecutor and Mr Ryan who has appeared before us on this application. He also relied, he recorded, on his own knowledge of other similar sentences.

His Honour, in refusing to make a recommendation for early consideration of parole, said that he thought that a recommendation was not appropriate, primarily because of the applicant's previous criminal history, but he added that he could properly reflect the pleas of guilty by moderating the head sentence for the offences. Having balanced all of the relevant considerations, his Honour arrived at the sentence of three and a half years' imprisonment which is the subject of this application.

Mr Ryan, on behalf of the applicant, has raised a number of points which, in his submission, should result in the success of 181197 T17/SA2 M/T COA264/97

the application. He referred first to the circumstance that his Honour had not set out explicitly the consideration that he had given to the pleas of guilty, had not indicated what his sentence would have been had it not been for the mitigating circumstances which have been emphasized before us.

But, in my view, it is quite clear from his Honour's sentencing remarks that his Honour gave a reasonable discount for the mitigating factors, particularly when it is borne in mind that Mr Ryan himself had suggested to his Honour that the range for the offence was from three to four and a half years. I do not see any error in his Honour's sentencing procedure in that respect. It is not always possible for a sentencing Judge to be precise about the sentence that might otherwise have been imposed in hypothetical circumstances. But it is clear in this case that a reasonable, perhaps even a considerable, discount was given by his Honour for the mitigating circumstances.

Another matter relied upon by Mr Ryan was what he submitted was his Honour's error in placing too much weight on the applicant's previous history. I do not see any error in that respect in the sentencing process. It is obvious that the applicant's history was a matter which his Honour could quite properly take into account; and, in addition, it was quite open to him in sentencing the applicant on the wounding charge to take into account the subsequent offences to which the applicant pleaded guilty in determining whether the applicant was deserving of leniency. It should be mentioned that those subsequent offences were committed while the applicant was at liberty on bail on the 181197 T17/SA2 M/T COA264/97

wounding charge.

All things considered and taking into account the undoubted ferocity of the attack on the complainant, I conclude that no error has been demonstrated in the sentencing process and I would refuse the application.

THE CHIEF JUSTICE: I agree.

DOWSETT J: I also agree.

THE CHIEF JUSTICE: The application is refused.

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