R v Johnson[2002] QCA 283

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

HOLMES J

CA No 143 of 2002

THE QUEEN

v.

PAUL CLIFFORD JOHNSONApplicant

BRISBANE

DATE 05/08/2002

JUDGMENT

DAVIES JA:  Justice Holmes will deliver her reasons first.  You can sit down, Mr Johnson.

HOLMES J:  The applicant seeks leave to appeal against a sentence of two years' imprisonment suspended after eight months with an operational period of three years, imposed upon him in respect of two offences of assault occasioning bodily  harm and one offence of wilful damage. 

The applicant was born on 8 April 1964 and is now 38.  The offences to which he pleaded guilty were committed on three separate occasions against a woman with whom he had been in a relationship described by her as casual.  On the first occasion, on 30 March 2001, the complainant, after an argument with the applicant, went to a neighbour's house.  On her return the applicant grabbed her around the throat causing scratches, swelling and bruising to her neck and then threw her to ground.  On his account she had provoked him by using a cigarette lighter to singe the hairs on his arm.  The complainant suffered scratches to the left side of her neck, swelling and bruising and a sore lower back with some abrasions as a result of this incident.

On the second occasion, about a week later, the applicant went to the complainant's home.  She, it seems, was not prepared to speak to him.  He became agitated and accused her of sleeping with his brother and caused her enough concern to make her go inside and lock her security door.  Meanwhile, outside, he began to call her offensive names and then threw a garden statue through the front window of her house smashing the window, of course, and breaking the statue.  This was, his counsel said, the result of anger and aggression because she had not wished to talk to him.

On the third occasion, which took place about a month later, the offence of assault occasioning bodily harm was committed while the applicant was on bail for the earlier two offences.  On this occasion the applicant again accused the complainant of infidelity.  He grabbed her around the neck and shoulders area and shook her, then pushed her, causing her to lose her balance and fall.  On this occasion she sustained lacerations around her neck and a large bruise to her hip.  This offence again was said to be the product of frustration and anger brought about, the applicant's counsel said, by the complainant being somewhat unstable in personality and sometimes drunk and abusive.

The applicant had pleaded guilty in sufficient time to prevent the bringing of the complainant from Western Australia to give evidence at a trial.  He had a reasonably good work history although it was, presumably, interspersed with short periods of imprisonment.  It is to be noted that the applicant has an extensive criminal history which includes a conviction for a breach of a domestic violence order in 1992 for which he was fined and a previous offence of assault occasioning bodily harm for which he was sentenced to one month's imprisonment in 1997.

On that occasion he had assaulted his then de facto wife and admitted to pushing her to ground and head butting her.  On 5 May 2000 he was again convicted of assault occasioning bodily harm.  On this occasion, however, he assaulted someone with whom he was dancing in a club, knocking that person to the floor.  The explanation for this assault was said to be that the person had proved to be a transvestite and that had angered him.  He was sentenced to six months' imprisonment.

In addition to those offences of violence the complainant has a history of offences of dishonesty, the most recent of which resulted in his being sentenced in March 2001 to 12 months' imprisonment.  He had presumably completed his parole on that sentence the day prior to the first of the assaults. 

For assaults of this type a head sentence of two years is heavy but when one takes into account the applicant's previous criminal history, the repeated nature of the offending against the same complainant and the fact that the third occasion involved an offence of assault of the complainant committed while on bail for earlier offences against her, the sentence was not outside the range.  The plea of guilty was appropriately recognised by suspension after eight months. 

I would refuse leave to appeal.

DAVIES JA:  I agree.

WILLIAMS JA:  I agree.

DAVIES JA:  The application for leave to appeal is dismissed.