The Queen v HCH - [2021] QCA 218

[2021] QCA 218

COURT OF APPEAL

SOFRONOFF P
DAVIS J
WILLIAMS J

CA No 106 of 2021
DC No 2704 of 2017
DC No 2446 of 2020
DC No 726 of 2021

THE QUEEN

HCH Applicant

BRISBANE

MONDAY, 11 OCTOBER 2021

JUDGMENT

DAVIS J: The applicant seeks leave to appeal an effective head sentence of seven years imprisonment with parole eligibility after serving two and a half years which was a global sentence imposed for a total of 22 offences committed against the applicant’s domestic partner. The applicant faced two indictments and 13 summary charges. The first indictment contained 17 counts. The applicant pleaded guilty to seven, and the Crown elected not to proceed on the other 10. He pleaded guilty to the two counts on the second indictment, and he pleaded guilty to the 13 summary offences.

The offending the subject of the first indictment occurred between 12 July 2014 and 25 August 2015. Those offences were four counts of assault occasioning bodily harm and three counts of common assault. The second indictment contained one count of assault occasioning bodily harm and one count of sexual assault. Those offences occurred on 10 October 2015. All the counts on both indictments were alleged to be domestic violence offences. In that respect see the Penalties and Sentences Act 1992, s 9(10A).

The summary offences were eight charges of common assault and five charges of contravention of a domestic violence order. The offences of common assault occurred between 1 June 2015 and 31 October 2015. The contraventions of the domestic violence order occurred between 16 November 2015 and 25 November 2015. The contravention of the domestic violence orders were alleged to be domestic violence offences as were some of the offences of assault.

Viewed overall the offending shows violent, degrading behaviour inflicted by the applicant upon the complainant over a period of some 16 months. The facts of the offending were not in dispute and were the subject of agreed statements of facts which were tendered to the learned sentencing judge. The applicant and the complainant lived in a de facto relationship for about three years, and they have a child together. By mid-2014 the applicant was acting violently towards the complainant, and a temporary domestic protection order was made on 7 January 2015.

Counts 5, 7, 8 and 11 to 17 on the first indictment were the counts abandoned by the Crown. Count 1 on the first indictment, assault occasioning bodily harm, was constituted by the applicant pushing the 20 weeks pregnant complainant against a car, elbowing her to the head and spitting on her while children were present. Count 2 on the first indictment involved the applicant pushing the 36 weeks pregnant complainant against a wall and, after she fell, grabbing her hair and dragging her up the hallway. Count 3 on the first indictment involved the applicant grabbing the complainant by the hair, then by the hand and twisting her fingers. The child who witnessed the events…

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 HCH

Details

AGLC: The Queen v HCH [2021] QCA 218
Case: [2021] QCA 218
Decision Date: 11 OCTOBER 2021

CaseChat Overview and Summary

The applicant in this case sought leave to appeal against a sentence of seven years imprisonment with parole eligibility after serving two and a half years. The sentence was a global sentence imposed for a total of 22 offences committed against the applicant’s domestic partner. The applicant faced two indictments and 13 summary charges. The first indictment contained 17 counts, the applicant pleaded guilty to seven, and the Crown elected not to proceed on the other 10. He pleaded guilty to the two counts on the second indictment, and he pleaded guilty to the 13 summary offences. The offences were domestic violence offences, and the applicant and the complainant lived in a de facto relationship for about three years, and they have a child together. The court considered the applicant’s conduct to be a concerted effort at delay and avoidance. The court found there was no credible evidence to conclude that a mental health disorder significantly impaired either the applicant’s understanding of what was wrong or his capacity for self-control. The court imposed a sentence of seven years on the sexual assault on the second indictment, four years imprisonment on the count of assault occasioning bodily harm on the same indictment, and then imposed lesser sentences of imprisonment on the other charges. The court took a global approach to the sentence, and the sentences were ordered to be served concurrently, and five days pre-sentence custody was declared as time served. A parole eligibility date was set at 19 October 2023 after the applicant had served two and a half years. The applicant submitted that the sentence was manifestly excessive and should be five years with parole eligibility after 21 months. The court dismissed the application and found the sentence to be well within the range of a sound exercise of the sentencing discretion. The court found that the offending was serious and was conducted over a protracted period, and the offending was committed in a domestic setting upon the applicant’s domestic partner and on some occasions, in the presence of children. The court found the offending was demeaning and degrading to the complainant and has caused her ongoing harm.

Orders