The King v GBM

[2024] QCA 10

[2024] QCA 10

COURT OF APPEAL

MULLINS P
BODDICE JA
APPLEGARTH J

CA No 44 of 2022
DC No 2482 of 2021

THE KING

v

GBM  Applicant

BRISBANE

WEDNESDAY, 7 FEBRUARY 2024

JUDGMENT

1. BODDICE JA:  On 16 February 2022, the applicant pleaded guilty to one count of assault occasioning bodily harm (domestic violence offence) and one count of contravention of a domestic violence order with a circumstance of aggravation, namely, that he had previously been convicted of a domestic violence offence.

2. On the same date, the applicant was sentenced to 2 years’ imprisonment for the count of assault occasioning bodily harm and 9 months’ imprisonment for the count of contravention of the domestic violence order.  The sentences were ordered to be served concurrently.  A parole release date was set at 16 February 2022.  In imposing those sentences, the sentencing judge took into account 317 days served in pre-sentence custody, but did not declare that time as time served for the sentences.

3. The applicant seeks leave to appeal those sentences.  Should leave be granted, the sole ground of appeal is that the sentences were manifestly excessive.

4. Both offences were committed on the same day.  Each involved the same female complainant; the applicant’s ex-partner.

5. The assault occasioning bodily harm involved punching the female complainant, perhaps more than 10 times.  The complainant suffered a laceration to her eye, swelling to the cheek and a fracture to the left middle finger.

6. The offences were committed by the applicant at the complainant’s home whilst intoxicated, in circumstances where the domestic violence order expressly prohibited the applicant from attending the complainant’s address whilst under the influence of an intoxicating substance.

7. The sentencing judge found that whilst that offending was serious enough, it was made more serious by the applicant’s extensive criminal history, amounting to some 37 appearances in the Magistrates’ Court since 2005.  That criminal history included offences against the same complainant.  Further, the applicant had previously been sentenced to imprisonment, with an order that he be immediately released on parole on one occasion and after a period of one month on the most recent occasion.

8. By way of mitigation, the sentencing judge observed that the applicant had a complicated background, having been born in Sudan and been afforded refugee status upon his arrival in Australia.  The applicant was not, however, a citizen of Australia and accordingly was subject to the risk of cancellation of his visa.

9. In imposing the sentences, the sentencing judge accepted the applicant’s pleas of guilty demonstrated a willingness to facilitate the efficient administration of justice.  The sentencing judge expressly reduced the sentences that would otherwise be imposed to have regard to those pleas of guilty.

10. Allowing for that co-operation, the applicant’s mitigating factors and for the consequence that a sentence of imprisonment which required the applicant to serve any day in actual custody would result in immediate cancellation of the applicant’s visa, the sentencing judge found that whilst community protection loomed large because the applicant was a recidivist offender, taking into account the 317 days served in pre-sentence custody (but not declaring it as time served) and reducing the sentence to 2 years’ imprisonment, was just.

11. In order to succeed on a ground that the sentences imposed were manifestly excessive, it is necessary for an applicant to establish that having regard to the circumstances of the offending, the mitigating factors and any relevant comparable authority, the sentences imposed were plainly unreasonable or unjust or that the sentences evidence a misapplication of principle on the part of the sentencing judge.

12. Having considered the circumstances of the applicant’s criminal conduct, his mitigating features and relevant comparable authorities, namely, R v RAP [2014] QCA 228, (2014) 244 A Crim R 477 and R v West [2006] QCA 252, there is no basis to conclude that the sentences imposed were manifestly excessive.

13. The applicant engaged in serious criminal conduct in contravention of a domestic violence order.  That conduct, which led to actual physical injury to the female complainant, was engaged in by an applicant who is properly to be described as a recidivist offender in respect of that female complainant.

14. Against that background, a notional sentence in the order of 3 years’ imprisonment fell well within a sound exercise of the sentencing discretion.  The sentencing judge, in order to have regard to the consequences on the applicant’s visa status should there be any declaration of the 317 days served in pre-sentence custody as time served, determined not to declare any of that time and reduced the overall head sentence to 2 years’ imprisonment with immediate release on parole.  Such orders properly reflected the applicant’s cooperation with the administration of justice by his early pleas of guilty and the mitigating factors in his favour.

15. The sentences imposed were not plainly unreasonable or unjust.  Those sentences do not evidence a misapplication of principle.

16. I would refuse leave to appeal against sentence.

17. MULLINS P:  I agree.

18. APPLEGARTH J:  I agree.

19. MULLINS P:  The order of the Court is: application for leave to appeal against sentence refused.  We will terminate the video link, Mr GBM.  That is the end of your matter.