R v Aitken [1995] QCA 534

Court of Appeal (Qld)|1995-12-03|Before: Fitzgerald P, Pherson JA, MacKenzie J

THE PRESIDENT: This is an application for leave to appeal against a sentence imposed at the District Court in Brisbane on 10 August 1995. The appellant was convicted of grievous bodily harm and sentenced to imprisonment with a recommendation that he be eligible for consideration for release on parole after nine months. The applicant and the complainant were drinking separately with friends at the Springwood Hotel around 10 p.m. on Sunday, 23 July 1995 when the complainant heard a disturbance in the beer garden and went to investigate.

The applicant had just been ejected from the hotel and was making attempts to re-enter. The applicant and the complainant had a verbal altercation during which the complainant placed his hands around the applicant's upper body. The applicant then bit the complainant on the lip and then the finger. The complainant then began swinging punches at the applicant but the fight was broken up when the applicant was restrained by bouncers. Part of the complainant's lip was bitten off by the applicant. The lip was sutured but scarring resulted with the possibility of some permanent disfigurement.

The applicant stated to police that he believed that he was under threat from the complainant at the time when he bit him. The applicant was drunk at the time and angry. The applicant is 22 years old and has twice previously been given probation, once for dishonesty offences and once for drug offences and assault occasioning bodily harm while armed. He has other minor offences, one possessing a dangerous drug for which he was convicted and fined $600 and another for the breach of a probation order imposed earlier in relation to the assault occasioning bodily harm whilst armed and in possession of a dangerous drug.

On the first occasion, the probation was for a period of 12 months and on the second occasion for a period of 18 months. The applicant had breached the latter probation order by re-offending prior to the commission of the present offence. The sentencing Judge noted that the applicant was intoxicated at the time of his assault causing grievous bodily harm on the complainant. It said that the attack was vicious and not provoked in any sense. Noted that the applicant has the previous conviction of assault occasioning bodily harm whilst armed. Said that the offence warrants a term of imprisonment but made an early recommendation in recognition of the applicant's plea of guilty, evident remorse and attempt to overcome his alcohol problem.

His counsel had submitted that the applicant was in fear, or submitted here, that the applicant was in fear when the attack occurred and it was pointed out that the applicant was no longer drinking alcohol and had taken serious steps to rehabilitate himself. It appeared that the applicant had a dysfunctional childhood with a father who was a violent alcoholic and that the applicant had resolved his resentment of his father and his alcohol problem through Alcoholics Anonymous of which he was a Branch Secretary. He was also employed.

The matters referred to in this Court were much the same as those referred to before the sentencing Judge and before us, counsel for the applicant recognised the difficulty which he faced with her submission that the sentencing Judge failed to take into account adequately the applicant's attempt at rehabilitation and employment and her submission that the sentence was manifestly excessive. In my opinion, the sentence was well within the proper sentencing range, well within the sentencing Judge's discretion and I refuse the application to leave to appeal.

McPHERSON J: I agree. I would only add by way of emphasis that I have found what was said by this Court in Queen v. Amituanai to be particularly helpful in relation to a case like this. I agree with what was said there, both generally and in particular with reference to the two cases of Queen v. Laban and Queen v. Foley that are mentioned in the reasons in that case.

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