R v Sokol - [2011] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sokol [2011] QCA 20

PARTIES:

R
v
SOKOL, Michael Geoffrey
(applicant)

FILE NO/S:

CA No 272 of 2010
DC No 204 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

18 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2011

JUDGES:

Chief Justice, Muir and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – 31 year old applicant pleaded guilty to unlawful wounding – applicant sentenced to two years imprisonment with parole release date fixed after 8 months – applicant had punched complainant in the face whilst holding a glass in his hand – complainant left with scar – applicant was otherwise a good member of the community and had sought to rehabilitate himself by moving away and refraining from alcohol – applicant was primary income earner for family – whether sentence imposed was manifestly excessive

R v Cui[2009] QCA 334, distinguished
R v Denyer[2009] QCA 53, considered
R v Holmes [2009] NTCCA 16, considered
R v Jones (2008) 186 A Crim R 191; [2008] QCA 181, considered
R v Kent[2004] QCA 83, distinguished

COUNSEL:

A J Kimmins for the applicant
M B Lehane for the respondent

SOLICITORS:

Potts Lawyers (Southport) for the applicant
Director of Public Prosecutions (Qld) for the respondent

[1] CHIEF JUSTICE: The applicant seeks leave to appeal against the sentence imposed upon him for the offence of unlawful wounding. On 9 November 2010 he pleaded guilty to the offence, and was sentenced to two years imprisonment with a parole release date fixed at 8 July 2011, that is, after eight months or one-third of the head sentence.

[2] The offence was committed at a leagues club on the Gold Coast on 11 July 2009. The applicant was then 31 years of age. He had no significant prior criminal history. The complainant and the applicant had not previously known one another. The applicant was on the balcony of the club premises. The complainant walked out onto the balcony. The complainant heard the applicant “say something that sounded argumentative”. The complainant responded: “and your mamma” (characterized by the learned Judge as “some slight provocation”), and walked past the applicant without looking at him, whereupon the applicant spontaneously punched the complainant in the face, exerting what the Judge termed “considerable force”. The applicant was intoxicated, and did not realize that he had a glass in his hand. The glass shattered upon impact, producing a five to seven centimetre laceration to the complainant’s temple, requiring suturing in hospital. The laceration healed well, but the complainant is left with a scar, which occasionally produces an itch. He grew his sideburns in order to conceal…

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 Sokol

Details

AGLC: R v Sokol [2011] QCA 20
Case: [2011] QCA 20
Decision Date: 18/02/2011

CaseChat Overview and Summary

In the Supreme Court of Victoria, the respondent sought to appeal against a sentence imposed following a guilty plea to a charge of unlawful wounding. The applicant, a 31-year-old man, had punched the complainant in the face while holding a glass, resulting in a scar for the complainant. The applicant, otherwise a good member of the community, had sought to rehabilitate himself by moving away and refraining from alcohol and was the primary income earner for his family. The court was required to determine whether the sentence imposed by the County Court was manifestly excessive.

The court considered the nature and circumstances of the offence, the character and antecedents of the applicant, and the impact of the sentence on the applicant and his family. The court noted that the offence involved violence and that the applicant had held a glass in his hand at the time of the offence, which increased the potential for harm. However, the court also noted that the applicant had pleaded guilty, had no prior criminal record, and had taken steps to rehabilitate himself. The court further noted that the applicant was the primary income earner for his family and that the sentence would have a significant impact on his family.

The court held that the sentence imposed was not manifestly excessive. The court noted that the County Court had considered all relevant factors and had exercised its discretion in a manner consistent with the law. The court held that the sentence was appropriate in all the circumstances and that there were no grounds for interference. The application for leave to appeal against sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Sokol [2011] QCA 20
PARTIES:	R v SOKOL, Michael Geoffrey (applicant)
FILE NO/S:	CA No 272 of 2010 DC No 204 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	18 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2011
JUDGES:	Chief Justice, Muir and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – 31 year old applicant pleaded guilty to unlawful wounding – applicant sentenced to two years imprisonment with parole release date fixed after 8 months – applicant had punched complainant in the face whilst holding a glass in his hand – complainant left with scar – applicant was otherwise a good member of the community and had sought to rehabilitate himself by moving away and refraining from alcohol – applicant was primary income earner for family – whether sentence imposed was manifestly excessive R v Cui[2009] QCA 334, distinguished R v Denyer[2009] QCA 53, considered R v Holmes [2009] NTCCA 16, considered R v Jones (2008) 186 A Crim R 191; [2008] QCA 181, considered R v Kent[2004] QCA 83, distinguished
COUNSEL:	A J Kimmins for the applicant M B Lehane for the respondent
SOLICITORS:	Potts Lawyers (Southport) for the applicant Director of Public Prosecutions (Qld) for the respondent