Gillam v Payne[1997] QCA 219

COURT OF APPEAL

DEMACK J

DOWSETT J

HELMAN J

CA No 144 of 1997

R.A. GILLAM

v.

MARK EDMOND PAYNE Applicant

BRISBANE

DATE 17/06/97

JUDGMENT

DOWSETT J:  The applicant is 25 years of age, having been born on 5 February 1972.  He has been convicted of assault occasioning bodily harm, which offence occurred on 7 September 1996.  He pleaded guilty in the Magistrates Court and was sentenced to 12 months imprisonment and ordered to pay compensation in the sum of $3,000.  He seeks leave to appeal against his sentence.

The complainant was his de facto wife.  Her version of events was that she and the applicant had been drinking throughout the evening and returned home at about 1 a.m.  He began yelling at her for talking to other friends and when she told him to leave he smashed cups and pulled the telephone out of the wall.  He then hit her across the right-hand side of the head with the telephone.

According to her, she was then forced to the ground.  He then kicked her in the back.  At the time of the kicking he was wearing his work boots.  She felt pain and was screaming.  She then threw the telephone at him and tried to stop him entering the children's bedroom.  She tripped over a broken fan lying on the floor.  He said, "I'm going to strangle you, slut, until you shut up."  She picked up the fan and hit him across the back.  She grabbed a small peeling knife and held it towards the applicant but subsequently dropped it.  He then kicked her across the buttocks, legs, tailbone, chest and breasts.

She said that she told him that he had broken her wrist because she noticed that it was beginning to swell.  He demanded the car keys, which she refused to give him.  He then jumped on her left wrist and kicked her.  She took the children and left the house.  As a result of the injury she suffered a fractured wrist and other swelling and pain.

The applicant gave a somewhat different version of events and it seems that the sentencing proceeded upon that version.  He said that the violence had been provoked by her ripping a  magazine away from him and telling him to get out.  He said that she got his belongings and threw them into the front yard and began kicking and screaming and that at some stage he commenced to kick her, apparently as the result of what he described as her provocative conduct.

He said that she picked up the telephone and threw it, that she picked up the fan and hit him and that she picked up a peeling knife, but let it go as a result of his twisting her arm behind her.  At this stage she went to ground and the applicant commenced to kick her.  He said that he may not have kicked her 20 times but accepted that he certainly kicked her a large number of times.

He said that he had been provoked by her "going off" at him when they had come home.  He also claimed that she had knocked a cup of coffee over his legs and ripped up two magazines that he was reading.  She had also picked up a chair and thrown it against his back and shoulder region.

It seems that he has previously suffered problems concerning anger control and anxiety.  He had been on worker's compensation for some time prior to the incident but had previously had a good work history.  There was some suggestion that the complainant's behaviour towards him was influenced by a drug addiction on her part.  It is said that he accepts that he lost control and that there was no sufficient provocation for his action.  However he alleges that there had been a considerable amount of provocation prior to the assault taking place.

The primary grounds of the application are, firstly, that as he was under 25 at the relevant time, section 9(4) of the Penalties and Sentences Act applies, so that the Court was required to consider all other available sentences and take into account the desirability of not imprisoning a first offender before imposing a sentence of imprisonment.  My own experience would suggest that there are no sentencing authorities who ever proceed in any other way.  I certainly see no reason to believe that the sentencing Magistrate failed to observe his duty in this case.

The second ground is that the sentence is said to be not comparable with sentences imposed in other similar cases.  However, it is trite to say that assaults, as with most criminal offences, must be treated on their own facts, and there is inevitably a degree of uniqueness about those facts.  What is undoubtedly the most compelling feature of the assault in this case is that on either version of the facts, the applicant repeatedly kicked the complainant whilst she was on the ground.  Further, at the time he was wearing work boots.  The prospect of serious injury was very grave, and it is as a result of good luck rather than good management that he is not facing a far more serious charge.

Many of the cases to which we were referred concerned serious assaults, but as far as I can see, none of them involved the sustained serious violence which is the hallmark of this case.  In my view there was no option other than to impose a significant sentence of imprisonment both to mark the seriousness of the misconduct in this case and also to reflect the well-recognised community concern prevalent at the moment that domestic violence must be discouraged.

In those circumstances I am unable to conclude that the sentence of 12 months was manifestly excessive.  It is true that this was a young man with no previous convictions, and he pleaded guilty at an early stage.  In those circumstances it was appropriate that those considerations be given substantial recognition.  I consider that to do so it was necessary to make a recommendation for early parole and I note that the Director of Public Prosecutions concedes as much.

In the circumstances I find myself in substantial disagreement with the sentencing Magistrate in his failure to make an appropriate recommendation.  I would be minded to grant leave to appeal and allow the appeal to the extent of adding a recommendation that the applicant be considered for parole after serving a period of four months.

DEMACK J:  I agree.

HELMAN J:  I agree.

DEMACK J:  The orders will be as indicated by Mr Justice Dowsett.