Nicholas v Armitage

[2010] QDC 269

[2010] QDC 269

SNR CONST R ARMITAGE REG # 15722	Respondent
DATE 06/05/2010

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE SAMIOS

No 526 of 2009

Applicant

JOEL PAUL NICHOLAS
and

SOUTHPORT namely an assault occasioning bodily harm in company, committing a public nuisance and possession of a knife in a public place.

The assault occasioning bodily harm in company occurred on the guilty preceded over two days, namely the 8th of July, 2009 and the 11th of August 2009.

23rd of May 2009. The other offences occurred on the 15th of

The appellant was born on 17 of September 1982. He was 26 years of age at the time he committed the offences.

The learned Magistrate sentenced the appellant to three years' imprisonment for the assault occasioning bodily harm in company offence, two months' imprisonment for the possession of a knife in a public place and two months' imprisonment for the public nuisance offence. It was ordered that the terms of imprisonment be served concurrently with each other, but cumulatively upon another sentence being served by the appellant and a parole eligibility date of 2 September 2010 was ordered.

The factual basis of the sentence was that the appellant was affected by alcohol, the incident occurred at the front door of a dwelling on private property. Someone had sent a text

message to the complainant and he was lured to the offence
location. There was a verbal argument, and the defendant
punched the complainant with his fist causing the complainant
to hit a wall. The appellant's co-accused then involved

himself of his own volition. The appellant did not invite
this involvement from his co-accused. The appellant and the
co-accused punched and kicked the complainant, and this
continued whilst the complainant was on the ground. The
complainant was hit in the face at least once.

The complainant did not physically provoke the appellant or his co-accused, however, it was accepted by the learned Magistrate that this incident arose in the context of there being a heated argument between the complainant and the appellant's girlfriend who was the complainant's ex- girlfriend.

The assault by the appellant and his co-accused ceased voluntarily at which point the complainant left the scene. The complainant suffered a swollen nose, a 15 millimetre cut to his head and chin requiring three stitches, scratches to the face, back and shoulder, bruising on the arm and legs, blood blisters to his lips and various lumps and muscular strains causing some muscular soreness for some time.

Regarding the appellant's cooperation, he did participate in a occasioning bodily harm in company offence was manifestly excessive. It can be accepted that there was no premeditation on the appellant's part, nor any plan on his part and his co- accused to jointly assault the complainant. There was some explanation offered for the incident, namely the involvement of the ex-girlfriend.

record of interview with police and made admissions regarding
his presence at the scene, but denied involvement.
Nevertheless, he entered an early plea of guilty.

Further the appellant and his co-accused ceased the assault of their own volition and this was not a random act of drunken gratuitous violence in a public place, and thankfully, the injuries sustained by the complainant were relatively minor.

Nevertheless, it is significant on the hearing of this appeal that the appellant had previous criminal history. He was on probation at the time he committed these offences and had ceased a period of parole prior to committing these offences. He also in 2002 in the District Court at Southport had been convicted for an offence of an assault occasioning bodily harm in company and was imprisoned for 18 months suspended after six months for an operational period of five years.

Further, in the same Court on 6 November 2008 he was convicted of a number of offences including possession of a knife in a public place and assault occasioning bodily harm in company. On that occasion, he was convicted and sentenced to six months' imprisonment in respect of the assault occasioning bodily harm and given a parole release date of 24 December 2008. As I said, he was placed on three years' probation in respect of the other offences.

I have been referred to a number of authorities by the appellant's counsel, Mr McNab. These do arguably show a range of between 18 months and two years' imprisonment for an assault occasioning bodily harm where there has been other offending in the past, and the offending for which the person had been sentenced was quite serious.

Nevertheless, each case depends upon its facts, its own facts, and in this case the learned Magistrate had to deal with somebody who was on probation and had previously been convicted and sentenced to terms of imprisonment for assault occasioning bodily harm in company.

Even though this was not a random act of drunken gratuitous violence in a public place, it was nevertheless a serious offence committed upon someone who did not provide excuse. Even though there may have been a reason for the incident, it was not a justifiable reason in my opinion.

Therefore the question of whether the discretion was exercised in error arises, and in all the circumstances, particularly in light of the criminal history and the serious nature of the

offending, I come to the view that the learned Magistrate has range, but I do not consider it is outside the permissible range in the circumstances of this case, and I emphasise "this case", therefore, I dismiss the appeal.

not been shown to have acted incorrectly in the exercise of
his discretion.

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