THE QUEEN v MOORE, Jeffrey Allan - [1999] QCA 172

[1999] QCA 172

COURT OF APPEAL

PINCUS JA
DAVIES JA
CHESTERMAN J

CA No 57 of 1999

THE QUEEN

MOORE, Jeffrey Allan

BRISBANE

DATE 14/05/99

JUDGMENT

DAVIES JA: The applicant pleaded guilty in the District Court on 2 March this year to the offence of occasioning bodily harm in company on 8 February 1998.

He was sentenced on the following day to 12 months' imprisonment, suspended after three months for an operational period of 18 months. He seeks leave to appeal against that sentence.

At the time of commission of this offence, the applicant was just under 20 years of age and is now 21. His only previous conviction had been for a breach of a domestic violence order, the breach not consisting of physical assault but of a refusal to leave. This was in May 1997.

However, he committed further offences between the date of this offence and the sentence, consisting of assaulting a police officer and using threatening words. He was convicted and fined in respect of the first of those offences.

The circumstances of the assault the subject of this appeal were as follows. The complainant was living in a de facto relationship with a woman who had previously been in a de facto relationship with the applicant and had borne the latter a child who was aged 18 months at the time of the offence.

There had apparently been a previous suggestion by the applicant that the complainant had hit the child and he had challenged the complainant about that.

On the night in question, the complainant and two friends went to a local service station to get some food. The applicant was also at the service station with two other persons. On that occasion, the applicant offered the complainant an apology for his earlier accusation.

However, after the complainant and his friends had left, the applicant called out for him to stop and talk about the matter. The complainant and his friends continued to walk up the street whereupon the applicant ran towards the complainant calling out "Wait up, cunt. I want to talk to you." He repeated this demand, caught up to the complainant, grabbed him by the shoulder, turned him round and punched him.

One of the applicant's companions then also hit the complainant in the side of the head whereupon he fell to the ground. Whilst on the ground, the complainant was further attacked including by kicking in his face. The applicant did not admit to taking part in the kicking and the learned sentencing Judge, after hearing evidence, was not satisfied to the required standard that he kicked the complainant.

However, his Honour did conclude that the applicant played a part in the continuing attack on the complainant, when he was clearly disabled.

I assume that that means he continued to attack the complainant when he was on the ground by punching him, and that was conceded before us today. Certainly, he did not discourage his companion from kicking the…

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 MOORE, Jeffrey Allan

Details

AGLC: The Queen v Moore, Jeffrey Allan [1999] QCA 172
Case: [1999] QCA 172
Decision Date: 14 May 1999

CaseChat Overview and Summary

In the case of The Queen v Moore, the applicant, Jeffrey Allan Moore, was convicted in the District Court for the offence of occasioning bodily harm in company. Moore had pleaded guilty to the offence, which occurred on 8 February 1998, and was subsequently sentenced to 12 months' imprisonment, suspended after three months for an operational period of 18 months. Moore sought leave to appeal against this sentence. At the time of the offence, Moore was under 20 years old and had only one prior conviction, a breach of a domestic violence order. However, Moore committed further offences after the date of the current offence, including assaulting a police officer and using threatening words, for which he was fined. The Court of Appeal was required to decide whether the sentence imposed was appropriate and whether the learned sentencing judge had given sufficient weight to the mitigating factors presented.

The Court of Appeal considered the arguments presented by Moore's legal representation, including the relationship between Moore and the complainant, the plea of guilty, the lack of serious prior criminal history, Moore's age and good work record, and his problem with alcohol and his attempts to overcome it. The Court determined that the relationship between the parties was irrelevant to the nature of the attack, which was described as vicious, cowardly, and unprovoked. The Court further held that while the mitigating factors were relevant, they were not as important as they once were, particularly with respect to offences involving violence. The Court emphasised that changes in the legislative environment, including the increase in the maximum penalty for the offence, indicated that such offences must be treated with increased seriousness. Consequently, the Court found that the sentence imposed was not outside the appropriate range and was, in fact, a proper sentence.

The Court of Appeal, consisting of Pincus J, Davies JA, and Chesterman JCA, unanimously refused the application for leave to appeal against the sentence. The Court held that the sentence imposed was appropriate, taking into account the seriousness of the offence and the legislative environment. The Court acknowledged that the mitigating factors presented by Moore's legal representation were relevant, but determined that they did not outweigh the need to impose a sentence that reflected the gravity of the offence. The Court's decision was based on the principle that the sentence of imprisonment should only be imposed as a last resort and one that allows an offender to stay in the community is preferable, particularly for offences involving violence. The Court ultimately concluded that the sentence imposed was proper and dismissed the application for leave to appeal.

Orders