The Queen v Partridge[1997] QCA 77

COURT OF APPEAL

DAVIES JA

AMBROSE J

WHITE J

CA No 561 of 1996

THE QUEEN

v.

BRIAN THOMAS PARTRIDGE

BRISBANE

DATE 18/03/97

JUDGMENT

AMBROSE J:  This is an application for leave to appeal against a sentence of three years' imprisonment imposed upon the applicant who was convicted of doing grievous bodily harm to a garage proprietor.  The sentencing Judge recommended that the applicant be eligible for parole after serving 12 months.

At the time of the offence the applicant was 38 years of age.  He had a criminal history which had commenced in the Children's Court in 1975 in New South Wales.  There are a series of offences involving dishonesty and a couple of drug cases.  They stretch from 1975 through to 1979. Then there was a break for three years and then they stretched 1982, 1983, 1988 and finally the last offence, prior to the commission of this one, of which he was convicted, was in March 1995 where he was convicted of unlawful assault and fined $200.  That was apparently not a very serious assault.

On the day in question the complainant, the man assaulted, was operating a garage at the Gold Coast.  He was assisted by his daughter and the applicant and a lady companion arrived with their vehicle seeking a roadworthy certificate.  The garage proprietor inspected but refused to issue a certificate because of a number of faults discovered which would cost a few hundred dollars to remedy.

The applicant became upset and refused to pay for the inspection and there was a series of arguments and so on.  I will not go into those.  But, eventually, the applicant's lady companion agreed to pay the cost of the inspection.  The applicant then reversed his car out of the workshop and as the applicant's female companion left the office of the garage she assaulted, according to the evidence, the daughter of the garage proprietor who called for assistance from the police.

The complainant then ran from the office to see what his daughter was calling about and as he did so the applicant got into the workshop having taken his car outside and parked it out in the driveway.  The evidence was, and the sentencing Judge seems to have proceeded on this basis, that the applicant struck the complainant, the garage proprietor, a couple of times in the workshop and then dragged him out to the front of the workshop near where the applicant had parked his car and then severely assaulted him.

There was a tyre lever in the hand of the applicant at some stage which was apparently part of the equipment used at the garage but the sentencing Judge, in the absence of direct evidence that it was used in the assault, proceeded on the basis that it was not used by the applicant to assault the garage proprietor but he had it with him at that time.

The applicant was sentenced therefore on the basis that the injuries which were extensive caused to the proprietor of the garage were caused by punches from the closed fist of the applicant.  The applicant suffered fractures to the nose and other parts of the face and a fracture through the bottom of the right eye socket or orbit.

He has been left with blurred vision, pains and so on.  He says that he has flash backs and nightmares about the incident in which he was involved.  It is not clear that those sequela of the assault will improve but they may.

There was no question of self defence on the facts as the sentencing Judge found them.  The sentencing Judge said that the applicant had expressed some remorse in the record of interview.  To the extent that any remorse was expressed, it seems to me, from my perusal of the record of interview to have been very slight.

There was no provocation on the part of the garage proprietor.  The assault perpetrated by the applicant on the complainant was within a very short time of an assault being perpetrated by his lady companion on the daughter of the complainant.

The whole incident seems to have had its genesis in the dissatisfaction of both the applicant and his lady friend with the refusal of the complainant to give them a roadworthy certificate for the car that they had had him examine and his insistence on being paid for his examination even though he refused to give the roadworthy certificate.

Those, briefly, are the facts to which the learned sentencing Judge referred.  He pointed out that the matter went to trial.  He referred to some references that had been tendered on behalf of the applicant, one of which was from his aged mother indicating that she relied upon the applicant to assist and support her in her old age.

The range referred to or contended for on behalf of the applicant was about two years.  It was said that the appropriate sentence in the circumstances of this case, reference being made to a number of decisions of this Court was about two years' imprisonment with a recommendation for parole after, I think, it was nine months.

For the Crown it is said that the appropriate range on the cases is a sentence of two to four years and that there was no basis on the material upon which the learned sentencing Judge's recommendation for earlier eligibility could be supported.  The Crown, of course, have not cross appealed with respect to that recommendation.

In my view, the assault was a serious one. The applicant was a younger, bigger and fitter man than his victim who offered no provocation and in my view the sentence of three years imposed was within the appropriate range of sentence.  For the Crown it is contended that the learned sentencing Judge might well have made no early recommendation for parole but no appeal has been addressed on that point; it seems to me it is appropriate to look at the early recommendation as reducing the weight of the three year sentence imposed.

In my view it cannot be said that the sentence was other than one imposed in the exercise of a sound sentencing discretion and I would refuse the application for leave to appeal.

DAVIES JA:  I agree.  As Mr Justice Ambrose has said this was a vicious and unprovoked assault on an older man and whilst the head sentence of three years appears, to me, to be at the high end of the appropriate range despite the open argument of Mr Callaghan I find it still difficult to understand the basis upon which the learned trial Judge made a recommendation for eligibility after only 12 months.

Accordingly, it seems to me that when one has regard to the whole of the sentence which was imposed, that is, the three years together with the 12 months recommendation for release on parole, the sentence was well within the appropriate range.

WHITE J:  I agree with the reasons expressed by the learned presiding Judge and Mr Justice Ambrose and with the orders that they propose.

DAVIES JA:  The application is refused.