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[1996] QCA 215
General information, not legal advice.
Court of Appeal (Qld)
1996-06-05
Sir Dormer J, Pherson JA, Demack J, Williams J
Original judgment source is linked above.
The applicant is said to be a smaller man than his victim, to be someone who is an alcoholic and to be afflicted with osteoarthritis. Nonetheless, the wound that was inflicted to the stomach was one that was potentially a very serious one. On behalf of the applicant it is urged that because of the peculiar circumstances affecting him, the sentence is one which should have been less and should have been suspended.
The particular circumstances relating to the applicant are that he is an alcoholic with significant health problems; that he was in fact first assaulted by the complainant and he acted in defence of himself but overreacted; that he was physically inferior to the complainant; that he has entered a timely plea and shows remorse. The applicant has a very long criminal history but most of that is back in the 1960s and 1970s, when it is apparent that the applicant had a serious drinking problem.
The only previous conviction of violence is for one charge of assault in 1965. The most recent offences have been in 1985 when he was in possession of Indian hemp at Grafton and also used offensive words on railway property and then in 1995 he was dealt with in the Brisbane Magistrates Court for drug offences. Consequently although his history is a very unattractive one, there is no other offence since 1965 involving an assault or any violence.
Apparently, until recently, he has had a good employment record but alcoholism and arthritis now leave him unable to work. He has been on a pension now for some time. All of these matters were put before the sentencing Judge and there is no indication he did not take them into account.
So far as the sentence is concerned, we have been referred to a number of wounding offences where alcohol was involved. Particularly in the Crown submissions, reference is made to Bouma, CA No 261 of 1988 where a 34 year old alcoholic struck a complainant on the head with an empty bottle which shattered and he then used the bottle to inflict punches. He had previous convictions but none for violence. A sentence of three years imprisonment was not disturbed. The perhaps main significance of the remarks of the then Chief Justice Sir Dormer Andrews was that the sentence was high and in ordinary circumstances it could reasonably have been deemed too high. However, in the circumstances of that case the Court did not interfere; however, it can be obviously said that for that particular case, the sentence was a high one.
Reference was also made by the Crown to Robertson, CA No 103 of 1989. Again a glass container was used, in that case a beer jug into the face of the complainant and three years imprisonment was not disturbed. Here of course a knife was used to the trunk of the victim and that is always a hazardous undertaking because there are so many vulnerable organs that may be damaged.
Consequently the Courts have indicated the use of a knife is something that, in itself, requires condign sentence and that was what was used here. It seems to me that the sentence was within range and in the circumstances is not one that ought to be interfered with.
So far as the applicant's personal situation is concerned, because of his alcoholism and his osteoarthritis, there is reason for some order in relation to earlier parole. This was considered by the sentencing Judge and as I have indicated he ordered that the applicant be eligible for parole after 12 months. That seems to me sufficiently to recognise those peculiar characteristics of the applicant and in my view the sentence and the order for parole are proper ones, that the application for leave to appeal should be refused and the application dismissed.
McPHERSON JA: The order is as Mr Justice Demack stated it.
R
Meehan [1996] QCA 215