The Queen v GBI - [2022] QCA 28

[2022] QCA 28

COURT OF APPEAL

SOFRONOFF P
MORRISON JA
DAVIS J

CA No 60 of 2021
DC No 2 of 2021

THE QUEEN

GBI Applicant

BRISBANE

MONDAY, 7 MARCH 2022

JUDGMENT

MORRISON JA: On the first day of his trial, the applicant pleaded guilty to two charges: count 1, assault occasioning bodily harm, a domestic violence offence, on 1 April 2020; and count 2, torture, a domestic violence offence, between 11 and 12 April 2020. He was sentenced to 18 months imprisonment on count 1 and six and a half years imprisonment on count 2. The applicant seeks leave to appeal against his sentence.

The basis of the offending conduct was the subject of an agreed schedule of facts. The complainant, Q, was the applicant’s partner at the time of the offending. She was 39 and he was 35. Though in an intimate relationship, they lived separately.

Count 1

In the early hours of 1 April 2020, the day the applicant turned 36, Q and the applicant were drinking in the living room of Q’s house. The applicant was jealous, and an argument ensued. Q went to walk between two couches. The applicant punched Q in the face without warning. She fell to the ground in front of the TV. Blood immediately ran across her face and she vomited. Q asked the applicant to call an ambulance. He responded, “If you tell them what happened, I’ll get in trouble.”

Q was transported by ambulance to hospital. Q sustained a laceration across the bridge of the nose, a swollen lip, a tender frontal bone to her forehead, and a swollen jaw, with associated bruising and swelling to her face. The laceration was irrigated with saline and closed with two sutures. Q refused to disclose the cause of her injuries to the medical staff. She told them she could not remember what happened. The applicant was present throughout but did not verbally respond to the medical staff. Q was discharged that day and advised to return in five days to have the sutures out.

Count 2

On 11 April 2020, Q and the applicant were at her house. The applicant was drinking. During the evening, Q went downstairs to get the washing. When she returned upstairs, the applicant followed her into her bedroom. He yelled at her about “fucking people downstairs” and being unfaithful. Q denied that. The applicant pushed her backwards onto the bed. He punched her in the head at least three times. Q screamed and went to the kitchen. The applicant followed her and kept yelling, “You dirty slut, you’ve been downstairs fucking two guys.” Q sat on a stool in the kitchen. The applicant walked over and punched her in the head. She nearly fell off the stool. The applicant poked Q in the shoulder with a pair of scissors. The applicant dragged Q into the loungeroom.

He continued his assaults overnight. The cycle was constant. He did not stop for more than five minutes at…

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 Queen v GBI

Details

AGLC: The Queen v GBI [2022] QCA 28
Case: [2022] QCA 28
Decision Date: 7 MARCH 2022

CaseChat Overview and Summary

The case before the Queensland Court of Appeal was an application for leave to appeal against a sentence imposed by the sentencing judge. The applicant, GBI, had pleaded guilty to two charges: count 1, assault occasioning bodily harm, and count 2, torture, both of which were domestic violence offences. The Court of Appeal was required to determine whether the sentence imposed was manifestly excessive. The applicant's key arguments were that the risk of reoffending was reduced, his custodial behaviour had been exemplary, and he had been on the waitlist for a rehabilitation program that was postponed due to COVID-19.

The Court of Appeal held that the sentencing judge had correctly considered the facts of the offending, the problematic nature of any rehabilitation, the ongoing effects of the offending, and the cessation of the relationship between the applicant and the victim. The sentencing judge's assessment of the risk of reoffending did not miscarry. The applicant's records since the sentencing would only be relevant if the Court of Appeal were to resentence him. The Court of Appeal also found that the sentencing judge had taken into account all the matters placed on record by the applicant's counsel at the sentencing hearing. The Court of Appeal concluded that there was no error in approach that would indicate manifest excess.

The Court of Appeal refused the application for leave to appeal against the sentence, stating that the imposition of a just sentence was the responsibility of the sentencing judge. The Court of Appeal also noted that the applicant's counsel had submitted that the total sentence of six and a half years was within the scope of sentencing discretion. Therefore, the contention that the sentence was manifestly excessive was difficult to sustain. The Court of Appeal also found that the applicant's arguments were largely based on matters that were already considered by the sentencing judge and that there was no evidence to suggest that the sentence imposed was so far outside the scope of proper sentencing discretion as to make it manifestly excessive.

Orders