Palmer v Walden

[1996] QCA 212

[1996] QCA 212

COURT OF APPEAL

DAVIES JA
DEMACK J
WILLIAMS J

CA No 127 of 1996

BEN ROBERT PALMER

v.

EDWARD JOHN WALDEN  Applicant

BRISBANE

..DATE 06/06/96

JUDGMENT

DAVIES JA:  The applicant was convicted, on his plea in the Magistrates Court, of aggravated assault.  He was fined $400 in default 13 days imprisonment.  No conviction was recorded.  He is a 24 year old man with no prior convictions.  The complainant is a 55 year old woman who is the Director of Nursing at the Doomadgee Hospital. 

On the afternoon of 16 February the applicant, who is studying to be a community teacher at a practical school in Doomadgee, left the school to go to the hospital to visit his older sister who was very ill.  He was very close to and very fond of her.  Although she was - as he noticed when he got to the hospital - attached to a number of machines, she was talking to him in a sensible way and appeared to him to be all right.  He was told the Flying Doctor was coming to take her to Townsville so he returned to his school.

When he returned later he found his sisters crying outside the room in which his ill sister was.  There was a good deal of confusion, so far as he was concerned, as to his sister's state of health.  No-one was allowed into her room.  He asked one nurse who said that his sister would be all right but then a little time later a doctor from the hospital came and told them - that is, him and his sisters - that his elder sister had died.  He then became very upset.  He has said that he wanted to kill himself and join his sister.  When the complainant, the Director of Nursing, came out of the room, he just hit her. 

The assault consisted of an open-handed slap to the right side of the complainant's face.  It must have been quite a hard blow because the complainant felt immediate pain and had ringing in her ears several hours later.  However, it did not inflict on her any enduring injury.  The assault was entirely unprovoked and it occurred, plainly enough, out of frustration, upset and - as he described - a sense of helplessness.

The applicant later apologised to the complainant and said he was sorry.  He told her that he intended her no lack of respect.  It was just that he was so upset and he had been wanting to hurt himself and he just hit her because she was - as he put it - part of the hospital.  Although there was no permanent physical damage, the complainant was understandably very upset at the sudden attack on her.  As I have already mentioned, it caused her some pain for some time. 

The complaint in the appeal is about the severity of the fine. The applicant's solicitor, who appeared for him before the learned Magistrate, did not make any submissions as to the appropriate punishment but submitted that no conviction should be recorded, a submission to which the learned Magistrate acceded.  However, it was submitted to this Court that - in the light of other sentences, including those which had been imposed by this Magistrate - the sentence imposed here was too high; that the fine of $400, which was imposed upon him, was too high and it was submitted that, having regard to the nature of the offence and the absence of any previous convictions, the appropriate order would have been one that the applicant be released upon entering into a recognisance to be of good behaviour.

There was no doubt that the learned Magistrate, having regard to the tragic circumstances of this case, could have made an order such as the applicant submits here and the question before this Court is whether the order which the learned Magistrate did impose was manifestly excessive. 

In my view, having regard to the tragic circumstances of the case, the young age of the offender, and the absence of any convictions of any kind, his otherwise apparently good record - including the study which he was undertaking - the sentence which was imposed in this case - that is, the fine of $400 - was manifestly excessive and I would accede to the submission which was made on behalf of the applicant before this Court that, in lieu of that sentence, that an order be imposed that

- the appropriate section is section 19, would it be, Mr Byrne?

MR BYRNE:  Yes, it is, Your Honour.

DAVIES JA:  I think it is included in what I have already said but, in proposing the order which I would make, I would say that I have had regard to the applicant's character, age, health, mental condition, the nature of the offence, and the circumstances of the offence which make it less serious than if it had been committed under other circumstances. 

I would, therefore, allow the application and the appeal and order that the applicant be released upon entering into a recognisance in the sum of $200 on condition that the applicant be of good behaviour and appear for conviction and sentence if called on at any time during a period of 12 months.  I would not record a conviction.  I would also order that - having been told that a sum of $200 fine has already been paid - order that the sum of $200 paid as fine be returned to the applicant.

DEMACK J:  I agree.

WILLIAMS J:  I agree.

DAVIES JA:  That last order is satisfactory to achieve that result, is it, Mr Byrne?

MR BYRNE:  Yes, it is, Your Honour.

DAVIES JA:  They will be the orders of the Court.

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