R v Ball[2000] QCA 46

COURT OF APPEAL

McMURDO P

PINCUS JA

WILLIAMS J

CA No 344 of 1999

THE QUEEN

v.

BALL, Trevor Raymond Applicant

BRISBANE

DATE 28/02/2000

JUDGMENT

THE PRESIDENT:  This is an application for leave to appeal against a sentence imposed in the District Court at Townsville after a trial on 20 September 1999.  The applicant was a prisoner and hoped to be granted parole.

On 26 February 1999, he was part of a group of prisoners with similar hopes, gathered outside the Parole Board's meeting room at Stuart Creek Correctional Centre at Townsville.  They were supervised by one correctional officer, the complainant.

The applicant was notified that his application was unsuccessful and became distressed and angry.  He began to swear and then to move away from the area where the rest of the group were congregated.  The complainant, as sole supervising officer, could not allow the applicant to go too far from the group and told him to move back into the assembly area.

In response, the applicant punched the complainant just below the left eye, causing bruising and a small laceration.  The medical evidence supported the fact that this amounted to bodily harm but fortunately the complainant was not seriously injured and suffered only minor consequences.

The applicant was 41 years of age - 40 at the time of the commission of the offence.  He has an extensive criminal history with convictions for dishonesty since 1975 and many traffic and street offences.

It is regrettable that, since 1993, he has been convicted of a number of offences of assault, the most recent being the offences for which he was incarcerated.  On 20 May 1998, he was convicted of three counts of assault occasioning bodily harm whilst armed with a dangerous or offensive weapon or in company.

He was sentenced to three years imprisonment with a recommendation that he receive treatment whilst in prison and it was in respect of that sentence that the applicant hoped to be released on parole.  The applicant was sentenced to 12 months imprisonment cumulative upon that sentence by the learned sentencing Judge.

Mrs McGinness, who appears on the applicant's behalf, submits that comparable sentences demonstrate that the sentence imposed on this applicant was excessive and submits that the appropriate sentence was one of six months imprisonment cumulative.

It is accepted that a cumulative sentence was necessary because of section 156A Penalties and Sentences Act 1992.

In McIlroy, 382 of 1987, which was, of course, decided well before the Penalties and Sentences Act 1992, an effective sentence of 12 months cumulative upon a prisoner who assaulted a prison officer was reduced by this Court to six months imprisonment.  In that case the applicant pleaded guilty in the Magistrates Court.

In Hope, 228 of 1993, delivered 17/08/93, another case where the applicant pleaded guilty in the Magistrates Court, Hope pleaded guilty to assaulting on three separate occasions correctional officers whilst in prison.  He had an even worse prior criminal history for violence than this applicant and each of the three offences was worse than the single offence in this case.  He was sentenced to nine months cumulative imprisonment and appealed to this Court claiming his sentence was manifestly excessive.  This Court noted that the sentence was fully justified.  Indeed the sentence imposed in that case seems remarkably lenient, bearing in mind the serious nature of that offence, but, of course, it was not an Attorney's appeal.

In Taylor, 397 of 1993 delivered 29 November 1993, Taylor was serving a sentence of imprisonment and threw a quantity of blood at a prison officer splattering the prison officer with it and causing minor injuries in the course of a struggle.

In that case the sentence imposed was six months cumulative imprisonment.  Taylor applied for leave to appeal on the grounds that the sentence was manifestly excessive and that application was refused by this Court.  Significantly Taylor also pleaded guilty.

In this case the applicant went to trial, showed no remorse for his actions and had an extensive criminal history for violence; indeed he was serving a term of imprisonment for violence at the time he committed this offence.

In all the circumstances, the learned sentencing Judge was quite right to note that an aggravating feature was that it was an unprovoked attack on a prison officer performing his functions and that the prison officer had done nothing to justify the assault in any way.  His Honour also rightly noted that no remorse had been shown for the applicant's actions.

Whilst the comparable sentences, which unfortunately were not placed before the learned sentencing Judge below, demonstrate that a slightly lesser penalty could have been imposed in this case, bearing in mind the lack of remorse and the applicant's prior criminal history, I am not persuaded that this sentence is outside a proper sentencing discretion.  I would refuse the application for leave to appeal against sentence.

PINCUS JA:  In the case of Hope to which reference was made by Mrs McGinness the Court remarked:

"This and other Courts have on many occasions stressed the importance of the maintenance of discipline in correctional centres, and the consequent need to impose substantial penalties upon those who commit offences in breach of that discipline in order to deter others who might be like-minded."

In the present case there was no real or even fancied grievance against the officer and it appears that the prisoner felt free to take out his frustration, because of his unsuccess in the parole application, on that officer.

It is my opinion that it must be made very clear that that is not an appropriate course of conduct, nor one which the Court will regard lightly.  I would refuse the application.

WILLIAMS J:  The applicant was convicted of an assault on a police officer in the performance of his duty on 27 January 1998 and placed on probation for a period of 12 months.  Then on 10 March 1998 he was convicted of a serious assault in the Charters Towers Magistrates Court and sentenced to imprisonment for four months.

Then in the District Court at Charters Towers on 20 May 1998 he was convicted of an assault occasioning bodily harm with a circumstance of aggravation.  He was sentenced to a term of imprisonment for three years with a recommendation that he be eligible to apply for parole at the expiration of eight months.

The offence in question occurred on 6 February 1999.  Thus in the space of approximately one year he committed four serious assaults, two of which had already resulted in him being sentenced to a term of imprisonment prior to the commission of this offence.

Having regard to that recent criminal history involving convictions for serious assaults and also having regard to the lack of remorse in the instant case, I am of the view that a sentence of 12 months imprisonment is well within the appropriate range.  I agree with what has been said by both the President and Justice Pincus.  I agree that the application should be refused.

THE PRESIDENT:  The order is the application for leave to appeal is refused.