R v Suliman - [1999] QCA 228

99.228

COURT OF APPEAL

McMURDO P PINCUS JA THOMAS JA

CA No 65 of 1999
THE QUEEN
v.

RICHARD RIAZ SULIMAN

(Applicant)

BRISBANE
..DATE 17/06/99
170699 T12/JJD24 M/T COA135/99
THE PRESIDENT: Mr Justice Pincus will deliver his reasons
first.

PINCUS JA: This is an application for leave to appeal against sentence, the applicant having been sentenced to two and a half years imprisonment for unlawful wounding. There was a plea of guilty, but the circumstances in which the offence was committed were substantially in dispute and so the primary Judge heard evidence and made findings.

The applicant and complainant are husband and wife. He is 32 years of age and has some criminal history. In essence, what occurred was that there was a dispute between the parties over a trivial matter in the afternoon of 15 February 1998. Apparently in consequence of that, the applicant, who had left the matrimonial home and come home very late, attacked the complainant in the early hours of the morning.

According to the evidence of the complainant, she was grabbed
by the applicant and dragged to a hallway near a kitchen. She
said that he got a knife and began thrusting it at her and
that as he did so, he said, "I am going to kill you. I am
going to kill you." The Judge found that the applicant had no
intention to injure the complainant, but she was in fact
wounded in the body and neck when the applicant "thrust the
knife towards her face, neck and chest area on a number of
occasions whilst she was attempting to adopt measures to avoid
what she clearly thought were attempts to injure her". The
Judge regarded the applicant as having done what he did "in a
170699 T12/JJD24 M/T COA135/99
sort of rage and in a grossly misguided display of
aggression".

There were specific differences between the evidence of the applicant and that of the complainant, which His Honour did not see fit to resolve. In saying this, I intend no criticism of the Judge, because the essential point was, as it seems to me, the general character of the assault; His Honour made an adequate finding about that.

The wounding was said to consist of a laceration underneath the left ear lobe, a laceration to the left forearm, one to the right thumb and one to the left ear and bruises in various places. The Court has had the advantage of seeing the photographs of the complainant, illustrating her injuries, which were not of great seriousness, although certainly not injuries which one would wish to sustain.

The applicant's criminal history ceases in 1987; it includes offences of stealing as well as breaking, entering and stealing. There are also assaults in the record. He was sentenced for the offences I have mentioned on six occasions, from 1985 to 1987. The last two sentences imposed were custodial. This is not an insignificant record, nor an irrelevant one, but it has to be noted that…

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 Suliman

Details

AGLC: R v Suliman [1999] QCA 228
Case: [1999] QCA 228
Decision Date: 17/06/1999

CaseChat Overview and Summary

The Court of Appeal in this matter considered an application for leave to appeal against a sentence imposed on Richard Riaz Suliman for unlawful wounding. The appeal was against a two and a half year imprisonment sentence, following a guilty plea to the offence, which occurred in the context of a domestic dispute between the applicant and his wife. The primary Judge had made findings on the nature of the offence after hearing evidence from both parties, despite the plea of guilty.

The central legal issue was whether the sentence imposed was appropriate, particularly in light of the finding that the applicant had no intention to injure his wife. The applicant argued that the sentence was excessively harsh given the lack of intent to cause harm. The court needed to determine whether the sentence was commensurate with the offence, taking into account the mitigating factors, including the plea of guilty and the applicant's otherwise good character and prospects for rehabilitation.

The Court of Appeal found that while the primary Judge had correctly assessed the nature of the assault, the sentence imposed did not sufficiently reflect the mitigating factor of the plea of guilty. The court held that a sentence of up to three and a half years might have been appropriate but for the plea of guilty, but that the actual sentence of two and a half years did not adequately reflect this mitigating factor. The appeal was allowed, and the sentence was varied to recommend eligibility for parole after serving nine months, while the head sentence of two and a half years was confirmed.

Orders