R v. Warwick - [1998] QCA 337

[1998] QCA 337

COURT OF APPEAL

McPHERSON JA
AMBROSE J
BYRNE J

CA No 239 of 1998

THE QUEEN

WARWICK, Anthony Scott Applicant

BRISBANE

DATE 27/08/98

JUDGMENT

McPHERSON JA: In consequence of an order extending time within which to apply for leave to appeal, which was made last Tuesday, this application has now become an application for leave to appeal against sentences imposed in the District Court at Ipswich.

The sequence of events appears to be as follows. In February 1997 the applicant and one Hutchin came before Judge O'Sullivan in the Ipswich District Court charged jointly with having on 22 October 1996 taken a car belonging to a Mrs Hamilton and removed from it five tyres and various other pieces of equipment preparatory to burning it, which they did in order to conceal evidence against them. The car, which was worth some $5,200 and had only very recently been bought by Mrs Hamilton, was completely destroyed.

At the hearing before Judge O'Sullivan, Hutchin was sentenced to a term of imprisonment. The applicant himself escaped that fate by offering to pay compensation equal to half of the loss I have mentioned, and he was placed on probation without a conviction being recorded. He had every reason to regard that sentence as a generous one. He paid the amount in question but did not show any great inclination to comply with the requirements of the probation order and his then probation officer was, it seems, proposing that some action be taken to discipline him in that regard.

The next event in the sequence took place on 19 August 1997. Hutchin, it seems, bore a grudge against the applicant for the fact that Hutchin had gone to prison, whereas the applicant had not.

On 19 August 1997 the applicant was walking past the CES Office in Ipswich when he was approached by Hutchin. He is said to have "started into" the applicant complaining that he had gone to gaol over their earlier joint offence. The applicant's response to this, "So what?"

This annoyed the complainant who punched the applicant several times on the side of the face. The applicant retreated, but the complainant kept on punching. The applicant thereupon drew out a pocket knife and stabbed the complainant in the lower rib area.

The knife was variously described by witnesses as being four to five inches long, although the complainant stated it had a two to three inch blade. The applicant, in doing this, said to the complainant, "I'll f'ing kill you," and he approached him in a manner that the complainant described as "threatening". The applicant was still holding the knife at that time.

A witness said that the complainant responded to the applicant in terms that, "You are dead meat. You'll keep. I'll get you later." The applicant left the scene and was apprehended only some time later.

The complainant himself flagged down a car and persuaded the driver to take him to hospital. He was in an unsatisfactory…

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.

Keep reading for free

Create a free CaseChat account to read R v. Warwick and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1998] QCA 337
Decision Date: 27 August 1998

CaseChat Overview and Summary

In the matter of the application for leave to appeal against sentences imposed, Warwick, Anthony Scott is the applicant who has applied for leave to appeal against sentences imposed in the District Court at Ipswich. The applicant was convicted of two sets of offences: the first set involved taking and burning a car belonging to Mrs. Hamilton, and the second set involved grievous bodily harm against Hutchin, who had previously assaulted the applicant. The District Court Judge sentenced the applicant to 15 months imprisonment for the grievous bodily harm offence, to be served concurrently with a three-month sentence for the simple offences involving the use of the stolen motor vehicle. Additionally, the Judge imposed a sentence of six months for the earlier two offences committed in October 1996, which was made cumulative on the 15-month sentence imposed for the grievous bodily harm offence, resulting in an effective sentence of 21 months.

The legal issues before the Court of Appeal were whether the sentence imposed by the District Court was manifestly excessive and whether the sentences for the grievous bodily harm offence and the earlier two offences should have been made concurrent rather than cumulative. The applicant argued that the sentencing Judge failed to have sufficient regard to the report of the community correctional officer, which followed a period in custody that had a salutary effect on him. The respondent submitted that the appeal was without merit and that the 15-month sentence was not immoderate, considering the circumstances of the injury.

The Court of Appeal found that the applicant was hardly in a position to complain of the six-month sentence imposed for the original offences involving the taking and destruction of the motor car, as he was given an opportunity to avoid going to prison but failed to take advantage of it. The Court considered that the sentence for the grievous bodily harm offence was appropriate, as the applicant stabbed the complainant in the side of the chest without any warning, which could have had fatal consequences. The Court also found that it was appropriate to make the two sentences cumulative, as they were separate and distinct offences. The Court of Appeal refused the application for leave to appeal, as it was not persuaded that there was any substance in the application.

Orders