Gillam v Payne [1997] QCA 219

Court of Appeal (Qld)|1997-06-17|Before: Demack J, Dowsett J, Helman J

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.

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

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