R v Clumpoint[2000] QCA 199

COURT OF APPEAL

PINCUS JA

DAVIES JA

MUIR J

CA No 45 of 2000

THE QUEEN

v.

THOMAS ANDREW CLUMPOINT Appellant

BRISBANE

DATE 26/05/2000

JUDGMENT

DAVIES JA:  On 4 February 2000 in the District Court of Townsville the appellant was convicted on three offences all committed on 6 January 1998.  The complainant in each case was Ms Palmer.

In the order in which they occur the offences were:  an offence of unlawful assault at Paw Paw Creek; an offence of unlawful assault causing bodily harm when the appellant was armed with a rock which occurred outside Jacob Baira's house; and an assault outside Jacki Wilson's house.  All of these having occurred on Palm Island.

And they occurred, as appears from the evidence in the case, when the appellant and her companion, Ms Oui, were attempting to walk up the street of the town from one end to the other.  On 9 February the appellant was sentenced for these offences to 21 months imprisonment cumulative upon eight months imprisonment then being served under a partially suspended sentence.

The appellant appeals against his conviction and seeks leave to appeal against his sentence.  His appeal against his conviction is, in effect, on one ground only that the verdict of the jury was unreasonable or, put another way, that it was not reasonably open to them to be satisfied beyond reasonable doubt of his guilt on any of the charges.

The basis for this contention is the inconsistency between versions given in respect of each offence by the complainant and Ms Oui.  In respect of the first offence the complainant said, when first asked, that she was punched on the left cheek indicating just below the left eye.

In cross-examination she described the punch as being to her eye.  After this occurred she said she threw an empty baby's bottle at the appellant.  Ms Oui said, when first asked, that the appellant pushed the complainant two or three times on the shoulder.  She later added that he also pushed her in the chest and the shoulder and then punched her about two times in the left temple.

Her recollection was that the complainant did not throw the baby's bottle at him on this occasion but on the second occasion.  These different accounts were put to the jury by the learned trial judge and, no doubt, by defence counsel.  They had in common a punch by the appellant to the complainant's face in the vicinity of her left eye. 

I do not think that these differences in account result in any unreasonable verdict on this charge.  As to the second incident the complainant said, when first asked, that the appellant knocked her down and kicked her in the forehead with his right foot.  She said he then threw a rock at her, which hit her in the back somewhere lower than the shoulder causing a bruise.

In cross-examination she said that he knocked her down by rushing at her like he was tackling a person.  She saw the appellant pick up a rock but did not see him actually throw it.  She then felt a blow on her back and then saw the rock on the ground.  Ms Oui confirmed that the complainant was knocked down.  She thought, however, that was the result of a punch.

She said the appellant then punched the complainant all over her head.  She said there were a good few punches but no kicking.  She did not mention the throwing of the rock on this occasion.  A doctor, who examined the complainant, did not notice any bruise on her lower back although she noticed an injury to her left shoulder.  She did look generally at her back, but the complainant did not complain of any injury to her lower back to the doctor.

There was plainly considerable inconsistency between the complainant and Ms Oui on this account.  They were at one in the fact that the appellant knocked the complainant to the ground, however, Ms Oui contradicted the complainant's account that she was thereafter kicked.  She said the complainant was punched but the complainant did not say that.

Whilst it is true that Ms Oui was not specifically asked about the rock throwing allegation she would surely have mentioned it had she recalled it, and there seems to be considerable doubt as to whether there was any injury in the region of which the complainant says she was hit by the rock.

In my view, the jury could adequately have been satisfied that at this place and time the appellant assaulted the complainant by knocking her to the ground, but I do not think they could reasonably have been satisfied that he caused her bodily harm or that he hit her with a rock.

As to the third count the complainant said the appellant knocked her down like a tackle and kicked her in the back of the head.  She there grazed her left shoulder, which appears to be the injury later observed by the doctor.  According to her he did not punch her.

Ms Oui said the complainant pulled the complainant by the shirt, slammed her on the road and kicked and punched her in the face and head, he also stood on her head and kicked her all over her head and face.  He then, according to her, threw a rock on the road 2 or 3 metres away from her head but it did not hit her.

Here again the complainant and Ms Oui appear to be on fairly common ground as to at least part of their recollection.  Both said the appellant knocked the complainant to the ground and both said he kicked her while she was on the ground.  It seems to me that the jury was reasonably entitled to conclude that on this occasion the appellant, once again, assaulted the complainant.

The doctor who saw the complainant observed a bruise over her left shoulder, over the upper corner of her back.  As I have mentioned, she did not observe any injury to her lower back.

It follows from what I have said so far that in my opinion the appeal against conviction should be allowed only to the extent of setting aside the verdict on count 2 and substituting on that count a verdict of assault.  I would therefore allow the appeal against conviction on count 2, set aside the conviction and substitute a conviction of assault.

It then becomes necessary to re-sentence the appellant.  Although she suffered no serious injuries, the assaults to the complainant involved punching and kicking and she was lucky not to have been more seriously injured.  They also involved a degree of persistence, the appellant following the complainant  and her companion up the street for a considerable distance, assaulting her on three separate occasions.  They were also unprovoked.

The appellant has a criminal history dating from 1986.  Although it is not substantial it involves convictions on more than 12 occasions and several sentences of imprisonment.  Importantly, they involved a number of assaults, two aggravated assaults on a female in 1987 and 1994, one assault occasioning bodily harm in 1987 and, unfortunately, on the day before the commission of these offences, a further offence of assault for which he was serving the suspended sentence to which this sentence was made cumulative.

Unsurprisingly, the complainant, although she did not suffer any long-lasting physical injury, was at least for a time emotionally upset although that does not seem to have been a long-lasting matter.

Mr Chowdhury for the appellant submitted that in the changed circumstances as a result of the setting aside of the additional circumstances with respect to the second assault an appropriate sentence would be one of nine months cumulative upon the sentence which the appellant is now serving and Mrs Clare for the respondent does not disagree with that view.

I would accordingly set aside the sentence imposed below and substitute a sentence of nine months imprisonment on each of counts 1, 2 and 3 to be served concurrently with one and another but cumulatively upon the sentence which the appellant is now serving.

PINCUS JA:  I agree.

MUIR J:  I agree.

PINCUS JA:  Mr Chowdhury, could I raise one matter with you?

MR CHOWDHURY:  Yes.

PINCUS JA:  I notice at page 107, line 8, the sentencing Judge remarked, "The intent is that the sentence of 21 months' imprisonment will commence on 16 August 2000.  What is the significance of that, do you know?

DAVIES JA:  That is the date upon which the present sentence finishes, is it?

PINCUS JA:  That would depend on whether he got out early I suppose on that.

MR CHOWDHURY:  Yes, although he was sentenced to a suspended sentence after serving eight months.  I don't know if there would be any reduction on that eight months.

PINCUS JA:  Well, there is no need for that really, is there?

MR CHOWDHURY:  No, there is no need for that.

PINCUS JA:  Anyway it is only a statement of intent.

MR CHOWDHURY:  Yes.

PINCUS JA:  The orders of the Court will be as indicated by Mr Justice Davies, that is the conviction on count 2 of assault occasioning bodily harm is set aside and there is substituted a conviction on count 2 of unlawful assault. 

Secondly, it is ordered that the sentences of imprisonment of 21 months in respect of each offence be set aside and there is substituted a sentence of nine months' imprisonment in respect of each of the three counts. 

Those sentences of nine months' imprisonment are to be served concurrently with each other but cumulatively upon the sentence of eight months which the applicant was serving when sentenced.

Therefore the appeal against conviction will be allowed to that extent and the application for leave to appeal against sentence granted and the appeal against sentence allowed to that extent.

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