The Queen v Ball[1998] QCA 369

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.  288 of 1998

Brisbane

[R. v.  Ball]

THE QUEEN

v.

TREVOR RAYMOND BALL

(Applicant)

Thomas J.A.

Shepherdson J.

Jones J.

Judgment delivered 13 November 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13 November 1998

1. The applicant seeks leave to appeal against the sentence imposed on him on 20 May 1998 at the District Court at Townsville.  He had pleaded guilty on 23 March 1998 to a charge of assault occasioning bodily harm whilst armed with a knife.  After taking the plea the learned sentencing Judge ordered a pre-sentence report to be provided.  At the adjourned hearing the pre-sentence report was tendered and this included reports from Mr Philip Hale, psychologist and Professor Basil James, psychiatrist. 

2. The applicant was sentenced to three years imprisonment with a recommendation that he be considered for parole after serving eight months of that sentence.

3. The events giving rise to this offence occurred on 1 December 1997.  For some 12 months prior to that date the applicant had resided at a caravan park on the Flinders Highway, Sellheim, near Charters Towers.  The caravan park was owned and operated by Kenneth Mellow, the complainant, and his wife Shirley. 

4. Initially the applicant paid rent for the site to which he had moved his own caravan but after a period of approximately 6 months the rent was reduced, and then waived, on the basis that the applicant would carry out odd jobs around the caravan park.  The arrangement also included the fact that the applicant would be provided free of charge with some meals and provisions from the store operated by the Mellows.

5. This arrangement continued until the applicant started drinking to excess.  He had also found employment at a nearby grape farm and so although in a position to pay rent, he continued to do the odd jobs in lieu of paying rent.  These were performed in circumstances of increasing tension between himself and Mrs Mellow. The applicant had the feeling of being exploited by reason of this arrangement.

6. Matters came to a head on 30 November 1997 when the applicant drove a utility owned by the Mellows to a drinking session with some friends.  On the Crown’s submissions to the learned sentencing judge this action was said to be in defiance of an instruction from the Mellows not to drive the vehicle but before this Court on appeal the applicant alleged that the Mellows had agreed that he could drive the vehicle to a friend’s place from where they would retrieve it.

7. At that place the Mellows told the applicant that he would have to leave the caravan park within a few days.  The applicant’s response was to make threats against the Mellows and their property.  The applicant then returned to the caravan park and attempted to pay the Mellows cash by way of rent and to put an end to the arrangement that he carry out work.  This offer of rent was refused resulting in more heated discussion.

8. At about 11 o’clock that evening the applicant caused a nuisance by playing music very loudly on his stereo equipment.  The police were called and the applicant confronted them with a baseball bat.  He was detained by the police and taken away.  That incident led to his being charged with assaulting a police officer in the performance of his duty.

9. The applicant returned to the caravan park in the early hours of 1 December 1997.  To the learned sentencing judge it was said (and not challenged) that the complainant told the applicant he had to leave the caravan park within the next two days.  He replied that he would not do so and the complainant then unplugged the electricity supply to the applicant’s caravan at the power source.  Before this Court the applicant alleged that he was told by the complainant that he had to leave the caravan park immediately.  This angered him because the complainant was aware that he did not have a vehicle with which to tow his van.  Further he was concerned the loss of the electricity supply would result in food which he had in the freezer being ruined.  The applicant attempted to re-connect the power and was prevented from doing so by the complainant.  The applicant then produced a knife and swinging it in an arc in the complainant’s direction inflicted an 11 cm. long superficial wound on the complainant’s upper arm. After the assault Mr and Mrs Mellow locked themselves in the store and called the police who again took the applicant away.  Before this Court the applicant asserted that the wound came as a consequence of the complainant lunging towards him.  But this point was not made to either the psychologist or the psychiatrist who examined him nor is it consistent with what was recorded in a taped record of interview by the police in which he denied that he had seen the complainant on that morning (R49/10).  Clearly the learned sentencing judge could be satisfied to the requisite standard that the assault occurred as the prosecution alleged.

10. As one of his grounds of appeal, the applicant asserts that his side of the story was not told to the learned sentencing judge.  He identified those omissions, additional to the challenges we have referred to above, as being:

1. the exploitation of him by the work in lieu of rent arrangement;

2. an alleged intimacy with the complainant’s wife; and

3. a refusal on the part of the Mellows to allow him to pay rent.

11. Firstly, it must be observed that those matters were referred to in considerable detail in the report of Mr Hale and in a general way in the report of Professor James.  Insofar as they provided a background explanation to the events leading to the assault they were clearly before the learned sentencing judge.

12. Secondly, on that further material it was open to infer that the background circumstances led to the build up of considerable anger on the part of the applicant which could have provided a motivation for his conduct rather than the assault being seen as a spur of the moment response.  In short the more detailed airing of the facts which the applicant said his counsel failed to bring forward was more likely to lead to a higher rather than a lesser sentence.

13. The next ground of appeal was that the learned sentencing judge erred in not applying s. 161 of the Penalties and Sentences Act 1992 to take account of a period of imprisonment in pre-sentence custody.

14. The learned sentencing judge paid particular attention to this matter.  The applicant had between the date of this offence and the date of sentencing been convicted of other offences.  On 27 January 1998 the applicant was admitted to probation on the offence of assaulting the police officer referred to above.  On 10 March 1998 he was sentenced on a number of offences which occurred on 15 January 1998 as well as for the breach of that probation order.  The major sentence imposed was for 4 months imprisonment to commence on 27 January 1998.

15. It is clear enough therefore that by the time of the sentencing in respect of which this application is made, the applicant was still in custody in respect of other offences.  It is our view that the provisions of s. 161 do not therefore apply.

16. Apart from the alleged excessiveness of the sentence, the only other ground of appeal is to the effect that the recommended treatment programme has not been undertaken by Corrective Services.  This is an administrative matter and is not a matter to be considered in this application.

17. The applicant was born on 3 March 1958 and is now 40 years of age.  He has prior criminal convictions for a variety of offences but particularly offences of dishonesty when he was a teenager; driving offences when he was in his early twenties; and a number of counts of damage to property.  Of more significance is the fact that in 1995 the applicant was found guilty of two offences of being found in a dwelling house without lawful excuse and two offences of wilful and unlawful destruction of property.  His record also includes an offence of unlawful assault and he recounted to Mr Hale a further offence of grievous bodily harm resulting from a knife attack on a man the applicant believed had had sexual relations with his girlfriend.  He has had previous periods of imprisonment in respect of the various offences.

18. The applicant has shown no remorse for his actions and increasingly seeks to attribute the blame for his actions on the conduct of Mr and Mrs Mellow.  His Honour had before him victim impact statements from Mr and Mrs Mellow which detail their concerns and their fears about repetition of this conduct.  Professor James sees some explanation for his conduct in damaging experiences which he suffered as a young boy and the effect this had on his emotional development.  This was relevant in the current circumstances where he had a perception that he was being exploited and becoming disempowered with respect to his life.  Professor James expressed his opinion thus:

“However, I do hold the view that resonance from his earlier, formative days, of distrust, and sense of exploitation and domination, tends to be resurrected within certain important relationships, and that these and the attendant emotions, may have made some contribution to the events in question.”

19. Professor James then went on to suggest that the applicant was “unusually suited” for treatment in the form of psychodynamic psychotherapy and he was confident that such treatment would ameliorate the tendency to this type of antisocial behaviour.  It is obvious from the way in which his Honour framed his sentencing remarks that he had very much in mind the likely benefits of this treatment.

20. The Court was referred to sentence schedules relating to unlawful wounding and assault occasioning bodily harm with circumstances of aggravation.  The widely varying circumstances in which such offences are committed and the differing levels of injury resulting, makes impossible the identification of any discrete tariff for this particular offence.  The respondent referred to the following cases as providing some guidance:

The first three of the above list concern hotel brawls in which the complainant was struck with a beer glass which caused the infliction of the actual wound.  The case of  Fookes was a racially based attack on a coloured person outside a night club.  These cases indicate a range of 2-3 years as being appropriate for that type of offence.  The circumstances differ quite markedly however from the circumstances under consideration.

21. The case of Oakley concerned an unprovoked and unexplained attack on two men by a severely intoxicated person welding a ceremonial axe.  The accused had a modest criminal record and was initially sentenced to 2½ years imprisonment to be suspended after 1 month.  On appeal the sentence was varied to the extent of increasing the period before suspension to 12 months imprisonment.

22. The case of Darke involved the accused being charged with an offence of wounding together with an offence of occasioning bodily harm in circumstances again involving a drunken brawl during the course of which a knife was produced which resulted in the complainant being stabbed and was the foundation of the wounding charge.  The assault charge appeared to be based on the complainant being struck several times in the face and head.  In that case the sentence of 2 years imprisonment to be suspended after 15 months was not disturbed on appeal.

23. Whilst these cases differ significantly in their factual context each of them concerned an accused person with a significant criminal record and sufficient guidance is derived from them to produce the appropriate head sentence in this instance for a term of imprisonment of up to three years.

24. The fact that the applicant was subsequently found guilty of an offence of assault of a police officer on the day prior to this offence and that he was convicted of a further assault and an offence for damage which occurred within 6 weeks of this offence, required his Honour to be conscious of the principle in Mill v. The Queen.^[1]  That principle requires a sentencer in circumstances which attained here, to “review the aggregate sentence and consider whether the aggregate is ‘just and appropriate‘”.  Again, this Court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence in respect of all the offences.^[2]

25. Having regard to the effect the recommendation for parole after serving eight months imprisonment has on the totality of the sentence, it is our view that due weight has been given to all relevant considerations on sentence.  The sentence is not, in our view, manifestly excessive.

26. The application is refused.