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  • {solid} Appeal Determined (QCA)

R v Thompson

 

[2019] QCA 46

 

[2019] QCA 46

 

COURT OF APPEAL

GOTTERSON JA

BODDICE J

BROWN J

CA No 206 of 2018

DC No 148 of 2018

THE QUEEN

v

THOMPSON, George Vincent Applicant

BRISBANE

TUESDAY, 19 MARCH 2019

JUDGMENT

BROWN J:  The applicant was sentenced on 6 August 2018 in the District Court at Townsville in respect of six counts, namely, two counts of assault occasioning bodily harm, two counts of common assault, one count of assault occasioning bodily harm whilst armed and one count of wounding, all of which were domestic violence offences.  The sentencing judge determined that the appropriate penalty was three years’ imprisonment for the applicant’s overall criminality, which was imposed in relation to the most serious offence of assault occasioning bodily harm whilst armed.  His Honour provided for a parole release date of 9 September 2018.

The applicant filed an application for leave to appeal against the sentence on 8 August 2018 on the sole ground that the sentence was manifestly excessive.  To date, the applicant has not provided an outline of argument, as required by Practice Direction 3 of 2013, nor provided any updated contact details to the Court of Appeal Registry.

Several attempts have been made by the Court of Appeal Registry to contact the applicant in relation to the appeal.  On 13 August 2018, the Registry sent correspondence by post to the applicant at the Townsville Correctional Centre, advising the applicant of the importance of him informing the Registry of any change to his address for service.

On 27 November 2018, upon the applicant’s sentence application being listed for hearing, the Registry noted the applicant was no longer in custody and was presently reporting to the Probation and Parole Office at Townsville.  No updated contact details had been provided to the Registry.

Contact was made with the applicant’s case manager, who advised that their office would assist and provide any correspondence to the applicant when he next reported to them.  The Registry then emailed correspondence to the applicant, care of the Townsville Probation and Parole Office, advising the applicant that his sentence application was listed for hearing on 19 March 2019 and that his written outline of argument was to be lodged by 19 February 2019.

On 14 January 2019, the Registry sent correspondence to the applicant’s last known postal address, advising the applicant of the listing of his application and enclosing a copy of his appeal record book.  On 25 February 2019, the Deputy Registrar contacted the Townsville Probation and Parole Office.  The applicant’s case manager confirmed to the Deputy Registrar that the applicant had been provided with the correspondence dated 27 November 2018 on 8 February 2019.

The Deputy Registrar sent further correspondence to the applicant, care of the Townsville Probation and Parole Office, confirming that the matter remained listed for hearing on 19 March 2019 and that his outline of argument was overdue as at 19 February 2019.  The Deputy Registrar further advised the applicant to lodge his outline of argument as a matter of urgency and provided him with details on how he could do so, as well as reminding him to urgently contact the Registry to provide updated contact details.

On 8 March 2019, the matter was listed for mention before President Sofronoff, who directed that the appeal would be dismissed if the applicant did not appear at the hearing on 19 March 2019 and, secondly, directed that the respondent was not required to file an outline of argument.[1]It does not appear, however, that the applicant was notified of these directions nor that the applicant ever advised the Registry of his contact details.

The applicant has not complied with any of the steps required to be taken pursuant to Practice Direction 3 of 2013 nor indicated that he in any way wishes to prosecute this appeal.  The Court is satisfied that the applicant was made aware of the hearing of this application and provided with the correspondence from the Court of Appeal Registry by his case manager at least on 8 February 2019.

While the applicant was not made aware of the directions given by his Honour on 8 March 2019, those directions, in terms of his appearance today, only emphasised the fact that the applicant was to face dismissal of his application if he did not appear at the hearing today.  That was always open to be the case, even absent a direction, in the event that he did not appear.  That is provided for under the Rules, as well as under the Practice Direction. It is the applicant’s application for leave and his obligation to prosecute the application.  He has failed to do so.

The notice of application for leave to appeal seeks to raise as the ground of appeal that the sentence imposed was manifestly excessive.  A review of the sentence by the learned sentencing judge does not reveal any error by his Honour.  His Honour had regard to the circumstances of the applicant’s offending, which occurred over five weekends during his short relationship with the complainant when the applicant was affected by alcohol.

The circumstances of the offending were the subject of an agreed schedule of facts, which, in short, revealed that in the first incident, the applicant punched the complainant three to four times in the head and kicked her in the head two to three times before again punching her in the face, which resulted in a bruised eye.  On the following weekend, he awoke the complainant by kicking her in the face.  On the following weekend, he picked up a glass cup with a handle, swinging it such that he hit her in the head with sufficient force to leave a small scar, and on the weekend following, the applicant struck the complainant in the head one or more times, causing bruising and lumps to the side of her head.

On the final occasion, approximately a week later, when the complainant and applicant were at a party, the applicant picked up a clamshell and threw it at the complainant.  She then picked up a pair of scissors and jabbed him in the head with them, following which he picked up the scissors and stabbed her in the arm.  As a result of those events, the complainant suffered injuries which were a soft tissue injury to her left cheek, bruising to both eyes and a 0.5 centimetre wound to her left shoulder.

The learned sentencing judge also had regard to the applicant’s antecedents, in particular, that the applicant was, at 25, still a relatively young man when he offended and that he had a minor but relevant criminal history for domestic violence in 2012 and 2013.  His Honour took account of the applicant’s early plea of guilty, as well as the fact that there was no further evidence of any cooperation.

His Honour noted that the sentence had to punish the applicant to an extent and in a way that was just in all the circumstances, identifying the need for the sentence to address deterrence, both personal and general, as well as the need to protect the community, but also to encourage the applicant’s rehabilitation.

His Honour had regard to the case of R v Kowearpta [2009] QCA 48, relied upon by the Crown.  In that decision, this Court refused leave to appeal where the sentencing judge imposed a sentence of three and a half years with a parole eligibility date after 18 months for assault occasioning bodily harm whilst armed, which was the most serious of a number of offences, as was the case here.  His Honour noted correctly that R v Kowearpta involved an older offender with a far more serious criminal history.  The nature of the offending by the husband against his wife in that case was comparable, but slightly more serious than in the present case.

His Honour also had regard to the case of R v Suliman [1999] QCA 228, referred to by the defence, where the Court of Appeal maintained a head sentence of two and a half years for unlawful wounding, but amended the time for parole to be after nine months, having regard to the plea of guilty.  In that case, there was only one offence that had occurred between the husband and wife and the offending was of a less serious nature than the present.

The period of imprisonment of three years was within the sentencing range, based on the cases before his Honour, and the provision of a parole release date at less than a third was lenient.  The sentence was well within the sentencing discretion.

In the circumstances, an examination of the decision reveals no error and no arguable basis upon which it could be found that the sentence was manifestly excessive.  Given the delay that has occurred, the total failure by the applicant to take any steps to prosecute the application for leave to appeal and the lack of any apparent merit in the application for leave, it is appropriate that the application for leave to appeal be dismissed for want of prosecution.

I would refuse the application for leave and dismiss the matter.

GOTTERSON JA:  I agree.

BODDICE J:  I agree.

GOTTERSON JA:  The order of the Court is that the application for leave to appeal against sentence is dismissed.

Footnotes

[1]  Since the delivery of judgment, it has come to the attention of the Court that President Sofronoff did not in fact make the direction on 8 March 2019 that the appeal would be dismissed if the applicant did not appear at the hearing on 19 March 2019.  In any event, given that the provision of that direction was only treated as reflecting the prospect of dismissal for non-appearance, this new information does not alter the judgment in any way.

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Editorial Notes

  • Published Case Name:

    R v Thompson

  • Shortened Case Name:

    R v Thompson

  • MNC:

    [2019] QCA 46

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, Boddice J, Brown J

  • Date:

    19 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment DC148/18 (No Citation) 06 Aug 2018 Date of Sentence.
Appeal Determined (QCA) [2019] QCA 46 19 Mar 2019 Leave to appeal against sentence refused: Gotterson JA and Bodice and Brown JJ.

Appeal Status

{solid} Appeal Determined (QCA)