R v Withers - [1992] QCA 452

COURT OF APPEAL [1992] QCA 452

PINCUS JA
McPHERSON JA

de JERSEY J

CA No 276 of 1992

THE QUEEN

ROSS DAVID WITHERS	Applicant
BRISBANE ..DATE 11/11/92
JUDGMENT

McPHERSON JA: The applicant for leave to appeal against
sentence in this matter is Ross David Withers. He was
convicted on his own pleas of guilty in the District Court at
Brisbane to charges of having committed a number of offences.
The offences with which he was charged and convicted and the
sentences imposed in respect of each of them were as follows:
Count 1, assault occasioning bodily harm 18 months
imprisonment; count 2, stealing 3 months
imprisonment; count 3, unlawful use of a motor vehicle 8
months imprisonment; count 4, attempted unlawful use of a
motor vehicle 6 months; count 5, which is described in the
notes as "serious assault", 12 months imprisonment.

The sentences were concurrent, so that the effective sentence having regard to the most extensive sentence, imposed was 18 months imprisonment. The applicant, it may be said, had, before sentence was imposed on 25 September 1992, already spent two months in custody on remand. For one month of that period he was in the John Oxley Hospital in circumstances that will become apparent later in these remarks, and a further month represented remand in a prison environment.

I think I should add at this point that a few days after he was convicted and dealt with in the District Court for the charges described, he was prosecuted in the Magistrates Court

on 2 further charges arising out of the same incident. He was
admitted to probation for 3 years in respect of those 2
offences.

The circumstances of the offences committed can, I think, be briefly but accurately explained by reference to the notes in the outline of the Crown's submission on this appeal. The offence of assault occasioning bodily harm was committed against a woman aged 43, who was, it appears, the applicant's landlady and a person with whom there had been some sexual intimacy on the part of the applicant. He, on the occasion in question, wished to persuade her to continue the relationship and make it more permanent, whereas she, it seems, wished to end it.

Some kind of difference ensued over this matter. The applicant in the end became provoked by what had happened or by the complainant's attitude to him. He grabbed her throat. He held her tightly. He then produced a knife and stabbed her in the hip. It seems to have been a potato knife, and it resulted in what is described as only a minor laceration. There was a struggle, in the course of which the applicant punched the complainant twice in the face; and he is also said to have attempted to strangle her, although the medical evidence did not disclose any clear signs of this having taken place. She said that he had repeatedly

threatened to kill her. Eventually she broke free and escaped.

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 Withers

Details

AGLC: R v Withers [1992] QCA 452
Case: [1992] QCA 452
Decision Date: 11/11/1992

CaseChat Overview and Summary

In the case of R v Withers, the applicant, Ross David Withers, appealed against his sentence in the Court of Appeal. He had been convicted on his own pleas of guilty in the District Court at Brisbane for multiple offences, including assault occasioning bodily harm, stealing, unlawful use of a motor vehicle, attempted unlawful use of a motor vehicle, and a serious assault. The sentences imposed were concurrent, resulting in an effective sentence of 18 months imprisonment. The court was required to decide whether the sentence imposed was appropriate, and if not, what alternative sentence would be more suitable.

The Court of Appeal considered the nature of the offences, the applicant's background, and his efforts towards rehabilitation. The court found that the applicant's behaviour was influenced by excessive alcohol consumption and a history of head injury, which may have predisposed him to excessive drinking and aggravated the behavioural effects of that drinking. The court acknowledged the applicant's remorse and efforts towards rehabilitation, including his attempt to commit suicide and his participation in treatment programs. The court also noted the applicant's satisfactory work record and his potential for rehabilitation.

The Court of Appeal concluded that the original sentence did not adequately address the applicant's need for treatment and rehabilitation. The court granted leave to appeal, allowed the appeal, set aside the original sentences, and imposed sentences of 6 months imprisonment for each of the five counts. The court also admitted the applicant to probation for a period of 3 years, coextensive with the probation period already imposed in the Magistrates Court, with conditions including treatment for alcoholism and psychiatric condition.

Orders