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

GBM Applicant

BRISBANE

WEDNESDAY, 7 FEBRUARY 2024

JUDGMENT

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.
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.
The applicant seeks leave to appeal those sentences. Should leave be granted, the sole ground of appeal is that the sentences were manifestly excessive.
Both offences were committed on the same day. Each involved the same female complainant; the applicant’s ex-partner.
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.
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.
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.
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.
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.
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…

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 The King v GBM

Details

AGLC: The King v GBM [2024] QCA 10
Case: [2024] QCA 10
Decision Date: 7 FEBRUARY 2024

CaseChat Overview and Summary

The case before the Queensland Court of Appeal involved an applicant who had pleaded guilty to assault occasioning bodily harm and contravention of a domestic violence order, both of which involved the same complainant. The applicant was sentenced to a total of 2 years’ imprisonment for the assault and 9 months’ imprisonment for the contravention, with these sentences to be served concurrently. The applicant sought leave to appeal against these sentences, arguing they were manifestly excessive. The appeal was heard by Mullins P, Boddice JA, and Applegarth JCA, who assessed whether the sentences were plainly unreasonable or unjust, considering the circumstances of the offending, mitigating factors, and relevant authorities.

The court found that the applicant's criminal conduct was serious, particularly as it involved repeated offending against the same complainant and occurred in breach of a domestic violence order. The applicant's extensive criminal history, which included numerous appearances in the Magistrates’ Court since 2005, further compounded the severity of the offending. The sentencing judge had reduced the sentences to account for the applicant's early guilty pleas and his complicated background, which included being a refugee from Sudan and facing potential visa cancellation if imprisoned. Despite these mitigating factors, the court concluded that the sentences were within the bounds of a sound exercise of sentencing discretion, given the nature of the offences and the applicant's history as a recidivist offender.

The appeal court found that the sentences were neither plainly unreasonable nor unjust, and there was no evidence of a misapplication of principle by the sentencing judge. The court highlighted that the applicant's cooperation with the administration of justice through early guilty pleas and the consideration of his mitigating factors warranted a reduction in the sentences. Additionally, the sentencing judge's decision not to declare the 317 days served in pre-sentence custody as time served was deemed appropriate to avoid immediate visa cancellation. Consequently, the Court of Appeal refused the applicant leave to appeal against the sentences imposed.

Orders