R v Bell[2000] QCA 485

COURT OF APPEAL

PINCUS JA

WILLIAMS J

CULLINANE J

BRISBANE

DATE 23/11/2000

JUDGMENT

WILLIAMS J:  This is an appeal by the Attorney-General against sentences imposed on the respondent in the District Court at Mt Isa.  There were at that time two indictments before the Court. 

The first indictment alleged that on 7 December the respondent committed the offence of assault occasioning bodily harm whilst armed and secondly that on 16 December 1999 he committed the offence of assault occasioning bodily harm.  The second indictment alleged a series of offences on 16 June 2000.  Count 1, assault occasioning bodily harm whilst armed.  Count 2, unlawful wounding.  Count 3, assault occasioning bodily harm whilst armed.  Count 4, assault occasioning bodily harm.  Count 5, assault occasioning bodily harm.

With respect to each of the charges on the two indictments the complainant was the same person, namely, the respondent's de facto spouse Joanee Jennifer Koorabubba.  The respondent pleaded guilty to each of those offences.  It is necessary to outline briefly the facts relating to each count. 

Count 1 on the first indictment involved an assault on the complainant with a hammer because she refused to give the respondent some cigarettes.  On that occasion she suffered lacerations to her ankles, arms and legs. 

Count 2 related to an incident where the respondent woke up the complainant, punched her in the mouth a number of times, knocked her to the ground and applied force to her throat in a choking manner.  The complainant ran away but the respondent threw a brick at her causing a wound which required a number of stitches. 

On the second indictment Count 1 related to an incident when the respondent struck the complainant on the head with a billy can causing a laceration which required to be sutured.  A short while later the respondent picked up a kitchen knife and swung it at the complainant.  She put up her hands to defend herself and received lacerations to her hands.  The lacerations included two one-centimetre long cuts.  That constituted count 2.

Thereafter, the respondent picked up a brick and hit the complainant on the right shoulder.  That was the subject of count 3.  Shortly thereafter the respondent pushed the complainant onto the road and started kicking her in the head and all over the body.  She was kicked a number of times causing bruising.  She could not lie on her right side that night whilst trying to sleep.  That latter incident was the subject of count 4.

Some four to five hours later another incident occurred when the respondent grabbed the complainant around the throat with his right hand, grabbed her windpipe to stop her from screaming and applied what was described as a great degree of force.  That was the subject of count 5.

The respondent has a bad criminal record involving assaults on females.  There are - and I will refer to some matters in particular in a moment - seven convictions for assault on his de facto spouse who is the complainant with respect to the matters now before the Court and also one conviction for assault on a former de facto spouse.  Each of those incidents also constituted a breach of a domestic violence order.  The record shows that from the year 1996 there were domestic violence orders in place with respect to the respondent.

Of particular concern is the fact that on 23 February 2000 the respondent was dealt with in the Doomadgee Magistrates Court with respect to a charge of assault occasioning bodily harm to his de facto and breach of a domestic violence order.  On that occasion he was convicted and sentenced to imprisonment for a period of one month which was suspended with the operational period being a period of 15 months.  It therefore follows that the incidents of 16 June 2000, the subject of the second indictment, occurred during the operational period of that suspended sentence.

Before the sentencing Judge the prosecutor submitted that the applicable range was three to four years imprisonment given the respondent's criminal history.  Defence counsel appeared to concede that a sentence of three years imprisonment would be appropriate.  On behalf of the respondent both before the sentencing Judge and again in this Court reference was made to the pleas of guilty, to the fact that these offences occurred in the environment at Doomadgee, and that the respondent was suffering from chronic alcoholism.  Those matters are all relevant when one is considering the exercise of the sentencing discretion but in my view the dominant feature of this case is the persistent offending with respect to female partners.

The sentencing Judge referred to the seven previous offences involving the complainant, and that the respondent appeared to use a weapon whenever one was handy.  He then referred to the respondent's problem with alcohol and the fact that the plea of guilty was a timely one.  He then went on to say:

"Considering that imprisonment will mean a significant transfer of you away from your normal associates I order that you be imprisoned for two years in respect of each of the offences of assault occasioning bodily harm whilst armed and for one year in respect of each other offence on the indictment.  I further recommend that you be considered for parole at the expiration of nine months of that two year term."

That is the sentence which the Attorney now submits is inadequate.  In my view when all the factors to which I have referred are taken into consideration this was an inadequate sentence. 

Counsel for the Attorney referred in particular to the decisions of this Court in Morgan, CA209/1999, judgment 19 August 1999, in particular passages in the judgment of McPherson JA at pages 3 to 4; and Cheney, CA34/2000, judgment 3 May 2000, particularly passages in the judgment of Mackenzie J at page 8.  In my view, each of those cases supports the appeal of the Attorney in this case.

The question is how best to deal with the sentences in order to remove the inadequacy.  In my view, that can be done by increasing the sentence with respect to the three counts of assault occasioning bodily harm whilst armed.  If those sentences are increased then the sentences for the other counts on the indictments can be left as they stand. 

I would allow the appeal, set aside the sentences imposed with respect to the three counts of assault occasioning bodily harm whilst armed and substitute in lieu thereof a sentence of three and a half years' imprisonment with a recommendation that the respondent be eligible to apply for parole after serving 18 months of that sentence.

PINCUS JA:  I agree.

CULLINANE J:  I also agree.

PINCUS JA:  The order will be as indicated by Mr Justice Williams.