RvCOLEGATE, Philip Paul - [2022] QCA 148

[2022] QCA 148

COURT OF APPEAL

McMURDO JA
DALTON JA
FLANAGAN JA

CA No 106 of 2022
DC No 1633 of 2021
DC No 2076 of 2021
DC No 925 of 2022

COLEGATE, Philip Paul Applicant

BRISBANE

FRIDAY, 12 AUGUST 2022

JUDGMENT

McMURDO JA: The applicant was convicted on his own pleas of guilty of two offences, the first of which was committed on 10 July 2019 and the second less than four weeks later.

In the first offence, the applicant attempted to enter a dwelling house at night-time, intending to alarm a man who lived there and who was threatened with a knife. This man was unknown to the applicant, who came to be at the man’s house in this way. The applicant was driving on a suburban street when he passed a house with a car parked outside it which the applicant believed, without justification, to be his car which had been lost to him whilst he had been in prison. The applicant stopped, approached the house, knocked on the front door and confronted the man, who told him to go away. The applicant’s response was to produce a twisted bladed dagger and to grab the locked screen door which separated the two men. He was unable to pull it open and left. The man complained to police, and ultimately the applicant was identified by his DNA being found at the scene.

In the second offence, the applicant dangerously operated a car causing grievous bodily harm to a woman who was driving her car in an attempt to get away from him. The applicant and this young woman had been in a relationship until the night before the incident when they argued and she told him that she intended to end it. Early on the following morning, she left the house in her car and the applicant pursued her, driving aggressively. During the previous night, the applicant had used methylamphetamine. He pursued her over a distance of some 19 kilometres through suburban streets during which she felt compelled to drive dangerously herself to get away from him. The cars weaved in and out of traffic and through red lights.

Ultimately, the applicant drove on the wrong side of the road and accelerated into the rear right side of her car, causing her car to spin, mount a footpath and crash into a fence. The young woman was unconscious following the crash and had to be removed from her car by Queensland Fire and Emergency Services. She suffered a number of injuries, including a scalp laceration, fractures of the skull, facial fractures, a collapsed lung, a fractured collarbone and pelvis fractures.

The grievous bodily harm involved an injury which caused haemorrhages to the brain for which she was two months in hospital in a Brain Injury Rehabilitation Unit. That injury has caused her serious and ongoing problems. She suffers from dizziness and has a limited sense of smell and taste. When the applicant was sentenced in May…

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.

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Details

AGLC: RvCOLEGATE, Philip Paul [2022] QCA 148
Case: [2022] QCA 148
Decision Date: 12 AUGUST 2022

CaseChat Overview and Summary

The applicant, Philip Paul Colegate, appealed against the sentence imposed on him for two separate offences. The first offence involved the applicant attempting to enter a dwelling house at night with the intention to alarm a man using a knife. The second offence involved the applicant dangerously operating a car, causing grievous bodily harm to a woman who was attempting to get away from him. The Court of Appeal was required to determine whether the sentence of six years for the second offence was manifestly excessive or if the trial judge had failed to take into account a relevant and necessary consideration, namely the applicant's traumatic brain injury sustained in 2014.

The Court of Appeal found that the applicant's brain injury did not have a significant impact on his offending behaviour in this case. The applicant did not seek to explain, even in part, his offending by the effect of his brain injury. Therefore, the judge was not to speculate as to whether that was the case. The Court of Appeal also found that the sentence of six years for the second offence was not manifestly excessive, as comparable cases supported a sentence of five years or more for the second offence alone.

The Court of Appeal rejected the applicant's appeal and refused his application for leave to appeal against his sentence. The judges found that the sentence of six years for the second offence was not manifestly excessive and that the trial judge had not failed to take into account a relevant and necessary consideration.

In conclusion, the Court of Appeal dismissed the applicant's appeal and refused his application for leave to appeal against his sentence. The judges found that the sentence of six years for the second offence was not manifestly excessive and that the trial judge had not failed to take into account a relevant and necessary consideration.

Orders