R v Monday[2000] QCA 491

COURT OF APPEAL

McPHERSON JA

WILLIAMS J

DOUGLAS J

CA No 234 of 2000

THE QUEEN

v.

PAUL RALPH MONDAY

BRISBANE

DATE 28/11/2000

JUDGMENT

WILLIAMS J:  This is an application for leave to appeal against a sentence of three years' imprisonment suspended after six months with an operational period of three years with respect to a conviction for attempted robbery.

The applicant pleaded not guilty but was found guilty by the jury after a short trial.

The circumstances of the offence are revealed in the evidence of the complainant taxi driver and the applicant who were the only people who gave evidence at the trial.

The complainant was a taxi driver in Townsville.  He was engaged by the applicant at about 3.30 a.m. on the morning in question and then drove to an address in Townsville which was relatively isolated because of the presence of a park.

When he arrived at that point the applicant was asked to stop and he did so.  The applicant then asked him whether he had change of $50.00.  The complainant indicated that he did and proceeded to get some notes out of the pocket of his shirt. 

At that stage the applicant got out of the taxi and then turned around and punched the complainant with his fist.

Thereafter, a number of blows were struck.  The applicant made a grab for the money which the complainant had in his hand.  The complainant threw the money to the floor of the taxi and then put his car in gear and drove forward.

That dragged the applicant for some distance up the road before he fell away from the vehicle.  The applicant then left the immediate scene.

According to the evidence some 10 to 15 blows were struck in the course of the assault and the complainant suffered lacerations inside his mouth and bruising to his forehead and the top of his head.

The evidence given by the applicant did not challenge, in any way, the evidence as to the actual assault.  His evidence was that he assaulted the complainant so as to obtain sufficient time to run away from the vehicle, he not having sufficient money to pay the taxi fare.  That evidence was put forward on the basis that if accepted by the jury it negatived any intention to steal.  The jury rejected the evidence and convicted the applicant; the trial judge accurately described the defence as fanciful.

The applicant was aged 22 years having been born on the 16 September 1977.  He worked in a labouring capacity on various farms in North Queensland.  His only criminal history was a conviction for obstructing police and one for breaching bail.

Before the sentencing Judge reference was made to the decision of this Court in Jackson, 206 of 1994, and it was submitted that this case was distinguishable from Jackson because here nothing was actually taken.  As no money was actually taken, it was submitted that the sentence here should be lower than that imposed in Jackson.

In his written outline Mr Winn, for the respondent, has referred to the decision of this Court in O'Brien, CA 190 of 1995, judgment 28 July 1995, in which Justice Davies said:

"The applicant failed to complete the offence only because of the effective resistance of the complainant.  In my view there is a good deal to be said for the submission that there is little in cases such as this between an attempt and a completed offence."

I agree entirely with that observation and, in my view, it is apposite in the circumstances here.  It was only because the complainant had the presence of mind to scatter the money and then put his vehicle in motion that the applicant did not complete the commission of the intended offence of robbery.

In his remarks the sentencing Judge referred to the fact that this was a serious, persistent and sustained assault on the complainant and that it caused a reasonable degree of injury.  He made mention of the fact that 10 to 15 blows with the fists were involved.  He did record that no weapon was used.

He made the observation, correctly in my view, that taxi drivers are in an extremely vulnerable position and he said that the sentence to be imposed must send a message to the community that such conduct will not be tolerated.

In the circumstances, I am not persuaded that a sentence of three years suspended after six months is manifestly excessive.  It seems to me, in particular, that the period that the applicant will spend in custody, namely six months, is, if anything, on the low side.

In all the circumstances I would refuse the application for leave to appeal.

McPHERSON JA:  I agree.

DOUGLAS J:  I agree.

McPHERSON JA:  The application for leave to appeal is refused.