- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Hollis  QCA 7
HOLLIS, Peter Russell
CA No 156 of 2019
DC No 235 of 2019
Court of Appeal
District Court at Brisbane – Date of Sentence: 7 May 2019 (Loury QC DCJ)
4 February 2020
28 November 2019
Sofronoff P and Fraser JA and Boddice J
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of assault occasioning bodily harm, whilst armed – where the applicant was fined $5,000 and a conviction was recorded – where the applicant seeks leave to appeal the sentence on the ground that it was manifestly excessive – where the applicant seeks leave to adduce further evidence challenging the truthfulness of the complainant’s victim impact statement – where the applicant did not have a criminal history at the time of the commission of the offence – where a heated dispute arose between the applicant and the complainant who were known to each other – where the applicant threw multiple chairs at the complainant – where the complainant was struck by two of the chairs and sustained injuries – where the applicant submitted the sentencing Judge erred in giving undue weight to the victim impact statement – where the applicant submitted the sentencing Judge erred in finding the recording of a conviction would not affect the applicant’s economic and social well-being – whether leave to adduce further evidence should be allowed – whether the new material sought to be adduced as evidence would have materially impacted upon the sentence – whether the sentencing Judge erred in failing to have regard to relevant mitigating factors when exercising the discretion to record a conviction – whether the sentencing discretion miscarried
Penalties and Sentences Act 1992 (Qld), s 9(10A)
G Page QC for the applicant
J D Finch for the respondent
PHV Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with Boddice J.
FRASER JA: I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.
BODDICE J: On 7 May 2019, the applicant pleaded guilty to one count of assault occasioning bodily harm, whilst armed. On the same date, he was fined $5,000 (payable within six months). A conviction was recorded.
The applicant seeks leave to appeal that sentence. The sole ground, should leave be granted, is that the sentence imposed was manifestly excessive.
The applicant does not contend that a fine of $5,000 was itself manifestly excessive. It is the recording of a conviction that rendered the sentence manifestly excessive.
In support of that application, the applicant seeks leave to adduce evidence, being two affidavits. Those affidavits address factual matters said to be relevant to the sentencing hearing.
The applicant was born on 31 May 1945. He was aged 71 at the time of commission of the offence. He was about to turn 74 at the date of sentence.
At the time of sentence and of the commission of the offence, the applicant was retired, having previously held occupations as a solicitor, real estate licensee and a sometime pastoralist.
The applicant did not have a criminal history at the time of the commission of the offence. He did have subsequent convictions, being two contraventions of a later domestic violence order made in late 2017. Those contraventions were committed on 9 December 2017 and January 2018. The applicant was fined $800 for both offences, on 2 August 2018. No conviction was recorded for either offence.
The victim of the offence was a female complainant aged 55 years. She had known the defendant for some time. There was a dispute at sentence as to whether they were in a relationship at the time of the offence. The sentence proceeded on the basis it was unnecessary to determine the true position.
On the day of the offence, the applicant and the complainant held a family gathering at the applicant’s residence. Alcohol was consumed during and after that family gathering. In the evening, a heated dispute arose between the applicant and the complainant in relation to the applicant’s adult daughter. There were unpleasant verbal exchanges between the applicant and the complainant.
At one point, the applicant threw wicker chairs at the complainant. One struck the complainant on her left arm, causing a five to six centimetre laceration. Another struck the complainant on the head, causing a superficial two centimetre laceration. Two other wicker chairs thrown in the direction of the complainant did not strike the complainant.
The complainant took refuge in another part of the house. She locked herself inside that area and called police. The time was approximately 10.40 pm. Police and an ambulance arrived at approximately 11 pm.
Police observed blood on the top of the complainant’s head and a laceration on her forearm. CCTV footage from a camera installed in the back yard depicted the applicant throwing chairs at the complainant.
The complainant declined to be taken to hospital and declined to make a formal complaint. Police obtained a temporary protection order against the applicant on behalf of the complainant.
In late 2017, the complainant made a formal complaint to police in relation to events on 16 June 2016 and subsequent matters involving the applicant.
The applicant participated in a police interview on 28 February 2018. He admitted throwing chairs at the complainant. He said he wanted her to leave and to stop provoking him. He accepted one of the chairs struck her head.
The sentencing Judge noted that the applicant had pleaded guilty and the offence had been committed in the context of “something of a relationship with the complainant” and after drinking throughout the day and a continuing argument. The sentencing Judge described the applicant’s behaviour, for a man of his age and background, as “utterly disgraceful”.
The sentencing Judge accepted that, after police were called, the applicant had been kept in the watch house overnight, which was “a very sobering experience”. The complainant had also chosen at that time not to make a complaint, although a temporary domestic violence order was obtained by police. It lasted the balance of that year without any breaches. A formal complaint was not made until late 2017. There was, accordingly, a delay of some 18 months, during which period the applicant had gone about his life thinking the matter was behind him.
The sentencing Judge noted that a further domestic violence order was made in late 2017. That order had been breached by the applicant on two occasions, by approaching the complainant at a shopping centre or otherwise driving and attending at her house. Those breaches did not involve any physical violence or threats.
The sentencing Judge observed that the plea was late, on the day before the trial was due to commence. The sentencing Judge did not consider the plea indicative of remorse, but took into account the applicant had cooperated with the administration of justice and saved the complainant the further trauma of having to give evidence and to air private matters in a public forum.
The sentencing Judge referred to a victim impact statement provided by the complainant, in which the complainant described feeling terrified of the applicant and of having headaches as a consequence of the injury as well as bruising and pain. The complainant had also described feeling humiliated and embarrassed by her injuries. The sentencing Judge said it was the applicant who should be ashamed, humiliated and embarrassed by his conduct.
The sentencing Judge noted the complainant had also spoken of having sought counselling and treatment from a psychologist, but accepted that that treatment and her conditions were not solely as a result of the applicant’s conduct. The sentencing Judge did not doubt that the applicant’s conduct had had an impact upon the complainant and upon her mental health. The complainant described an inability to trust people, particularly men, and described living in fear of the applicant.
The sentencing Judge referred to the applicant’s character, age, past admission as a solicitor and former occupation as a real estate licensee. There was reference to his membership of the Royal Queensland Yacht Squadron for some 61 years and of his assistance in coaching those who are not able bodied.
After referring to the consequences of a domestic violence order and the existence of other Federal Circuit Court proceedings, the sentencing Judge said the offence was a serious one committed by a mature man who had lived a blameless life until very recently. Whilst alcohol and the fact of a deteriorating relationship had led to a highly emotional situation, the applicant, as a former practising lawyer and an intelligent man, should have walked away if he was angry and should not have acted with violence towards a woman.
The sentencing Judge accepted the applicant was unlikely to ever reoffend in light of his good character and it was unlikely he would create any further danger to his partner, particularly as there was a domestic violence order in place. The injuries received by the complainant were also not terribly serious physically, although the complainant had ongoing issues partly as a result of the assault.
The sentencing Judge concluded:
“General deterrence is an important consideration to the exercise of my discretion, in light of the insidious nature of domestic violence and the prevalence of it in our community. Because of your very long, blameless life, I will accede to the submission that has been made to you and I will convict and fine you $5000. I have given consideration to whether a conviction ought to be recorded and in my view, a conviction should be recorded to reflect the serious nature of the offence committed, as it was, against a woman with whom you had some sort of relationship.”
The applicant seeks leave to adduce further evidence, being an affidavit from the applicant and an affidavit from a friend, Lee Hurst.
Each of the affidavits contain assertions challenging the truthfulness of the complainant’s statements in the victim impact statement.
The applicant’s affidavit also details the circumstances in which he entered the plea of guilty, the basis upon which he was advised by his legal representatives to enter that plea and the consequences of a conviction on his social and economic wellbeing.
The applicant submits the sentencing Judge erred in the exercise of her discretion in referencing Court attitudes towards violence in a domestic relationship. The indictment had been amended specifically to delete an allegation that the offence was a domestic violence offence. The sentencing Judge also declined to make an order declaring the offence to be a domestic violence offence.
The sentencing Judge also erred in giving undue weight to the victim impact statement. The applicant did not agree with the majority of what was said in that statement. There was a concession by the prosecution that many of the matters contained within that statement were not relevant to the commission of the offence. The further affidavit material establishes the falsity of many assertions in that statement.
The sentencing Judge further erred in concluding that the applicant’s assertion to police that he felt provoked by the argument provided little explanation for his conduct, and in having regard to the applicant’s subsequent breaches of a different temporary protection order. No attempt was made by the trial Judge to disregard those non-recorded convictions.
Finally, the applicant submits the sentencing Judge erred in finding that the recording of a conviction would not affect the applicant’s membership of the Royal Queensland Yacht Squadron and the Maroochydore Yacht Club. Submissions had been specifically advanced as to the impact of the recording of a conviction on the applicant’s economic and social well-being, including his membership of those organisations.
The respondent submits the application to adduce new evidence ought to be dismissed as the new evidence does not add to the information provided to the sentencing Judge, and contains irrelevancy, hearsay or subjective opinion. The respondent accepts that, if the sentencing discretion is found to have miscarried, the affidavit material would be relevant to any re-exercise of that discretion.
The respondent submits the sentencing discretion did not miscarry. The sentencing Judge correctly observed the offending was objectively serious and the applicant’s conduct shameful. There was an importance in general deterrence, notwithstanding the applicant’s age and previous good character. The sentence imposed was not so unreasonable or plainly unjust as to be beyond a proper exercise of that discretion.
The sentencing Judge also did not err in referring to the prevalence of domestic violence. The applicant was to be sentenced on the basis he caused injury to the complainant in the context of an argument over family-related matters. It was in that context that the sentencing Judge made reference to the importance of general deterrence and the prevalence of domestic violence.
Further, there was no error in the sentencing Judge’s regard to the contents of the victim impact statement. The sentencing Judge only had regard to those aspects of the statement, which was supported by the agreed facts, and only gave moderate weight to the contents of those matters.
The respondent submits there was no error by the sentencing Judge observing that the reference to provocation provided no explanation. The applicant’s counsel had specifically submitted the applicant could not claim provocation because the response was excessive. Whilst that submission is alleged to have been made without instructions, it was consistent with a plea of guilty being entered voluntarily by the applicant.
There was also no error by the sentencing Judge in having regard to the subsequent breaches of the temporary protection order. They were relevant to an assessment of the applicant’s likelihood of further offending. The sentencing Judge specifically accepted those breaches involved no violence and were in a different category.
Finally, the sentencing Judge properly had regard to the submissions made by the applicant’s counsel as to the social impacts of the recording of a conviction. The focus of any action by the yachting entities would be the applicant’s behaviour, not necessarily whether a conviction was recorded. There is no apparent error in the sentencing Judge’s reasoning in determining, in the exercise of her discretion, to record a conviction.
The affidavit material sought to be adduced by way of new evidence contains many disparaging and irrelevant assertions as to the conduct of the complainant subsequent to the offence. Some of the assertions are completely irrelevant, such as alleged sexual activity. Others do not support a contention that the complainant’s victim impact statement was factually untrue.
For example, the complainant’s statement that she had been unable to run at all since the events, when previously she had been a serious, avid long distance runner, is not shown to be factually inaccurate by assertions that the complainant has, since the offence, used a kayak or attended social events without crutches.
To the extent that those assertions are said to call into question the accuracy of the complainant’s victim impact statement, it cannot be said the affidavits contain material that was not available to the applicant at the sentencing hearing. Whilst the applicant contends he had not seen the victim impact statement prior to the hearing, he frankly concedes in his affidavit that he was asked if he wanted to see it and he elected not to do so. His assertions in relation to the advice of his legal representatives also occur in the context of a concession that he voluntarily entered the plea of guilty in circumstances where, on legal advice, he chose not to press any reliance upon a defence of provocation.
Having regard to the circumstances in which the sentence hearing progressed and the contents of those affidavits, there is no basis to conclude that the new material sought to be adduced as evidence would have materially impacted upon the sentence. I would refuse leave to adduce the further evidence.
As the respondent properly concedes, aspects of those affidavits may still be relevant, in the event the sentencing discretion is re-exercised by this Court.
The offence did not involve a brief episode of dispute between the complainant and the applicant. It was protracted and involved the throwing of multiple chairs at that complainant. The complainant was struck by two of those chairs, sustaining injuries, albeit minor in nature. The incident ended only when the complainant secured herself in the residence and telephoned police.
Such an occasion of violence was properly characterised by the sentencing Judge as serious and involving shameful conduct on the part of a mature offender. The sentencing Judge’s reference to aspects of the victim impact statement was relevant to the consequences of that sustained act of violence on the complainant. There was a specific acknowledgement by the sentencing Judge that not all of the complainant’s ongoing difficulties were attributable to that incident. There was no error on the part of the sentencing Judge in the reliance upon the effects of the offence on the complainant.
Similarly, there was no error on the part of the sentencing Judge in referencing the applicant’s contention that he felt provoked as not providing an explanation for such conduct. By his pleas of guilty, the applicant accepted that any feeling of provocation was insufficient to provide a defence at law. Whilst the applicant contends that counsel, at the sentencing hearing, made a concession that provocation was not open without instructions, the applicant’s plea of guilty was entered voluntarily. That plea of guilty was inconsistent with a contention that the applicant was entitled to a defence of provocation at law. The concession made by counsel was consistent with that plea.
There was also no error on the part of the sentencing Judge in referring to the prevalence of domestic violence. The sentencing Judge was well aware that a circumstance of aggravation that the offence was a domestic violence offence was not being pursued by the Crown. The sentencing Judge specifically refused to entertain an application subsequent to the sentence for a declaration the application had been convicted of a domestic violence offence.
The fact it was not declared a domestic violence offence did not, however, detract from the relevance of general deterrence in the context of the prevalence of domestic violence. The offence had been committed by the applicant in the context of some form of relationship and subsequent to a family gathering. Reliance on general deterrence in those circumstances does not constitute treating those matters as a circumstance of aggravation under s 9(10A) of the Penalties and Sentences Act 1992 (Qld).
The sentencing Judge also properly had regard to the applicant’s subsequent convictions. They were relevant when considering the prospects of reoffending in the future. The sentencing Judge correctly observed that those subsequent breaches were in a different category, noting specifically they did not involve allegations of violence.
Whilst the abovementioned conclusions render the applicant’s complaints of specific error in the sentencing process without merit, the applicant’s complaints in relation to the recording of a conviction fall into a different category.
The applicant’s counsel made submissions in relation to the social and other impacts on the applicant in the event of a recording of a conviction. Those impacts specifically concerned membership of yachting organisations. Whilst those submissions were referred to by the sentencing Judge, in the sentencing remarks, those references were in the context of a consideration of the applicant’s character and antecedents.
The sentencing remarks reveal the sentencing Judge gave no regard to the significance of those matters, in the context of the applicant’s particular circumstances, when considering whether to record a conviction. On that aspect, the sentencing Judge specifically stated that a conviction should be recorded “to reflect the serious nature of the offence committed, as it was, against a woman with whom you had some sort of relationship”.
That fact, whilst relevant to the exercise of the discretion whether to record a conviction or not, is but one aspect of the factors to be considered in the exercise of that discretion. There was a particular need in the circumstances of this case, to consider the factors which militated against the recording of the conviction. There were many such factors.
First, the applicant was a very mature, first time offender. Second, a significant part of his social life revolved around membership of, and involvement with, those organisations. The impact of a conviction being recorded is of particular significance to an individual who was 74 years of age. Third, whilst there had been subsequent breaches of a domestic violence order, those breaches were in an entirely different category and specifically did not involve allegations of violence.
The failure to have regard to those relevant, mitigating factors, when exercising the discretion whether or not to record a conviction, supports a conclusion that the exercise of that discretion miscarried in the present case. Accordingly, it is necessary to re-exercise that discretion.
The applicant’s affidavit, tendered at the hearing of the appeal, specifically addresses real, potential consequences of the recording of a conviction on his social and economic wellbeing. The fact of a conviction is itself a ground for action to be taken by one of the yachting organisations under its code of conduct. Whilst it would be open to that organisation to take action on the basis of the applicant’s conduct, it would be a relevant factor for that organisation to consider whether a conviction was recorded for the offence.
Having regard to the applicant’s age, previously unblemished character and the importance of those organisations in his social sphere, it is likely that the recording of a conviction in the present case would materially adversely impact on the applicant’s social and economic wellbeing.
In circumstances where the offence, although serious, warranted a fine rather than imprisonment and the applicant is a mature, first time offender who will be materially adversely impacted upon by the recording of a conviction, I would, in exercising of the sentencing discretion, order that no conviction be recorded.
I would order:
- Leave to adduce further evidence on the application for leave to appeal against sentence be refused.
- The application for leave to appeal against sentence be granted.
- The appeal be allowed.
- The sentence below be set aside, to the extent that no conviction be recorded, but not otherwise.
- Published Case Name:
R v Hollis
- Shortened Case Name:
R v Hollis
 QCA 7
Sofronoff P, Fraser JA, Boddice J
04 Feb 2020
No Litigation History