R v Toohey - [2001] QCA 149

[2001] QCA 149

COURT OF APPEAL

McPHERSON JA
THOMAS JA
HOLMES J

CA No 351 of 2000

THE QUEEN

RAYMOND JEFFREY TOOHEY (Applicant)

BRISBANE

..DATE 19/04/2001

JUDGMENT

THOMAS JA: This is an application for leave to appeal against a sentence of two years' imprisonment for unlawful wounding. The applicant was 24 years old at the time of the offence and had some criminal history, although not for offences of violence.

What happened was this. The applicant was one of the first arrivals at the Tully Hotel at 10.00 a.m. on 9 June 2000. Because of previous problems involving the applicant, which are said to be irrelevant to the present proceedings, and because he was already intoxicated, the complainant publican refused to serve him and asked him to leave. The applicant refused. The complainant notified the police. They came to the hotel and told him that he was not allowed on the premises. He left, and so did the police. However, he returned about half an hour later. The police were again called. They again spoke to the applicant who again left. However, by 12.30 p.m. he was back at the hotel again. He was again asked to leave by the complainant and disappeared for about 10 minutes but again returned. The complainant again called the police who, not surprisingly, said it was going to be quite a while before they could get to the hotel.

The complainant then approached the prisoner, told him to leave and escorted him to the rear entrance of the beer garden. Shortly after this the applicant's girlfriend saw him with a 10-ounce glass in his hand. She saw him smash it on a stair. He retained the base with its shard and went to the entrance of the hotel where he screamed and yelled abuse. When he attempted to re-enter the hotel the complainant told him to get out. The applicant lunged at the complainant and swung the broken glass at him. The complainant raised his arm to protect himself and the glass caused injuries to his left arm. The complainant then punched the applicant twice, upon which the applicant backed off.

The complainant was in due course treated for four deep cuts to the upper left arm which required numerous sutures. He also required treatment for a broken finger which was a consequence of his response which must be regarded as an act of self-defence to an unprovoked attack. The victim impact statement reveals a good deal of disturbance to the life of the complainant, although he fairly concedes that he is slowly adjusting.

One of the submissions in favour of the applicant is that he is relatively young, 24, and that he has a limited criminal history with no previous offences of violence. However, when one studies his criminal history it reveals that he is a frequent enterer of other persons' dwelling-houses without excuse. The offence in question suggests that he was unable to accept exclusion from the hotel and in my…

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 Toohey

Details

AGLC: R v Toohey [2001] QCA 149
Case: [2001] QCA 149
Decision Date: 19 April 2001

CaseChat Overview and Summary

The case of R v Toohey involved an application for leave to appeal against a sentence of two years' imprisonment for unlawful wounding. The applicant, Raymond Jeffrey Toohey, was 24 years old at the time of the offence and had some criminal history, although not for offences of violence. The incident occurred at the Tully Hotel, where Toohey had been refused service due to his previous issues and intoxication. Despite being asked to leave multiple times and being told he was not allowed on the premises by the police, Toohey persisted and eventually attacked the complainant, a publican, with a broken glass, causing injuries to the publican's arm.

The legal issues the court was required to decide included whether the sentence imposed by the trial judge was manifestly excessive and whether the mitigating factors presented by the applicant warranted a lesser sentence. The applicant's counsel argued that the sentence was on the high side and cited previous cases to support a range of 12 to 18 months' imprisonment. The Crown, however, referred to cases where more severe sentences were imposed for similar offences. The Court had to balance the severity of the crime, the persistent behaviour of the applicant, and the mitigating factors such as the applicant's age, lack of a violent criminal history, and his plea of guilty.

The Court of Appeal considered the severity of the crime and the need for deterrence. McPherson JA and Holmes JA both noted that the sentence, while perhaps on the higher end, was within the acceptable range for such offences. McPherson JA highlighted the persistent and premeditated nature of the applicant's actions, which justified the severity of the sentence. Holmes JA, while acknowledging the mitigating factors, concluded that the sentence should not be altered. Ultimately, the Court found that the sentence of two years' imprisonment was not manifestly excessive and dismissed the application for leave to appeal. The final order of the Court was that the application is dismissed.

Orders