R v Eastwell
[2007] QCA 272
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Eastwell[2007] QCA 272
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R v Eastwell[2007] QCA 272
R v Eastwell[2007] QCA 272
SUPREME COURT OF QUEENSLAND
CITATION: | R v Eastwell [2007] QCA 272 |
PARTIES: | R |
FILE NO/S: | CA No 131 of 2007 DC No 163 of 2007 DC No 212 of 2007 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | District Court at Ipswich |
DELIVERED EX TEMPORE ON: | 20 August 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 August 2007 |
JUDGES: | Holmes JA, Wilson J and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant pleaded guilty to offences associated with domestic violence against his wife – where the applicant is a repeat offender – where the applicant sought to rely on post-sentence material on the appeal – whether the sentence was manifestly excessive R v George [2006] QCA 1; CA No 222 of 2005, cited R v Johnson [2002] QCA 283; CA No 143 of 2002, cited R v Warwick [2006] QCA 83; CA No 339 of 2005, cited |
COUNSEL: | The applicant appeared on his own behalf D Meredith for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
WILSON J: This is an application for leave to appeal against sentence. The applicant was convicted on his own pleas of guilty of the following offences: assault occasioning bodily harm on a date between 26 and 30 September 2006; wilful damage on 29 September 2006 and breach of a domestic violence order on 29 September 2006.
He was dealt with in the District Court at Ipswich on 17 May 2007. The sentencing Judge imposed a head sentence of
12 months cumulative on 12 months activated suspended sentence. She set the parole release date as 14 May 2008.
The applicant was born on 3 April 1976, so that he was aged 30 at the time of the offences and 31 at sentence.
The offences were committed against his estranged wife. They had been separated for about 15 to 18 months. Both of them had been seeing someone else but they had been trying to reconcile.
He stayed overnight at her house on 28 September and the next morning borrowed her car to go to work. He had work done on the car during the day without her permission. When he returned home there was an argument. On the Crown case, the argument was over the work having been done on the car without her permission. On his case, the argument was over her finding a condom in his wallet.
He went into the bathroom and had a shower. He became angry, grabbed the shower screen and shook it until it fell apart, punching it, causing it to break but not fall out of the frame.
He punched her in the face at least three times: on the nose, to the left eye and in the cheek area. She slid to the bathroom floor. He continued to yell at her. She asked him to get help but he refused. She managed to get up. He pushed her on to a sofa in the bedroom. The verbal abuse continued. He grabbed a baseball bat and appeared to be leaving. She managed to ring her mother for assistance.
It is relevant that the applicant had a criminal history. The first offence was committed in 1994 when he was aged about 17. It was an armed robbery. He held up a service station. About six years later he gave himself up. The way the matter was dealt with in the Court indicates that it was not a serious matter. No conviction was recorded. Community service and a $500 compensation orders were made.
But of more concern is the fact that he had committed previous offences against his wife - in August 2005, assault occasioning bodily harm and deprivation of liberty, for which the head sentence was 12 months, wholly suspended for three years. There was also a wilful damage count for which probation of two years was imposed and there was a count of obstructing a police officer for which no further penalty was imposed. The penalties were imposed on 3 February 2006, so that when the offences, the subject of this application for leave to appeal were committed, he was in breach of the suspended sentence and in breach of the probation order. As I have said, the sentencing Judge activated the full 12 months of the suspended sentence.
The wife had obtained a protection order under the Domestic and Family Violence Protection Act 1989 in April 2006, hence the third offence, the subject of the present application.
When the matter came before the District Court the applicant pleaded guilty. There had been a full hand up committal. Those were mitigating factors taken into account by the sentence Judge.
The applicant clearly has an anger management problem. At the sentence hearing for the earlier offences a report by Dr Shelley Keane, psychologist, was tendered. It referred to alcohol dependence, cannabis dependence, bipolar one disorder and a borderline personality disorder. In Dr Keane's opinion, the applicant was likely to re-offend but the risk would be reduced with treatment. It seems he did not receive treatment.
In his application for leave to appeal, the applicant said that if granted leave he would appeal on the following
grounds: poor legal representation; that consideration was not given to his limited criminal history; and that his early plea of guilty was ignored. These matters were not made out, and there was no attempt to make them out, on the hearing of the application for leave.
With respect to his criminal history, the sentencing Judge clearly considered it. It may have been short but it was very pertinent that the applicant had committed a similar, indeed a more serious, assault against the same complainant and that he had not taken advantage of the opportunity given by the previous sentences, namely the suspended sentence and the probation. The Judge did give credit for the plea and for the hand up committal.
In his written submissions on the application for leave to appeal, the applicant relied on a number of matters arising post-sentence, namely: that sufficient help and courses were not available in custody; that there were circumstances of urgency; that he had repayments to meet; there was family hardship; his business was failing. He also said that he had undertaken a course with Alcoholics Anonymous. He had reconciled with his wife. There was family hardship, including illness on the part of his mother-in-law. He said that he had found some solace in religion.
The presiding Judge gave the applicant the opportunity to make submissions on error by the sentencing Judge, but he did not take up that opportunity.
In all of the circumstances, in my view, the application for leave to appeal should fail. Indeed, the sentence which was imposed was clearly within range. The Judge, having decided to activate the suspended sentence, considered whether she should impose a longer concurrent sentence or a shorter cumulative term. She settled on the latter and made no error in doing so.
The Crown has helpfully referred to a number of comparable decisions, namely: George [2006] QCA 1; Johnson [2002] QCA 283; Warwick [2006] QCA 83.
As I say, in my view, the sentence was within range. No error has been demonstrated. I would dismiss the application for leave to appeal.
HOLMES JA: I agree.
PHILIPPIDES J: I also agree.
HOLMES JA: The order of the Court is that the application for leave to appeal against sentence is dismissed.