R v Ball - [2000] QCA 46

[2000] QCA 46

COURT OF APPEAL

McMURDO P
PINCUS JA
WILLIAMS J

CA No 344 of 1999

THE QUEEN

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 andSentences 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ball

Details

AGLC: R v Ball [2000] QCA 46
Case: [2000] QCA 46
Decision Date: 28/02/2000

CaseChat Overview and Summary

In the case of R v Ball, the applicant, Trevor Raymond Ball, sought leave to appeal against a sentence imposed by the District Court at Townsville. Ball had assaulted a correctional officer, causing minor injuries, while he was in custody and awaiting a decision on his parole application. The District Court sentenced Ball to 12 months imprisonment, cumulative upon any other sentence he was serving at the time. Ball argued that the sentence was excessive and sought leave to appeal to the Court of Appeal.

The legal issues before the Court of Appeal were whether the sentence imposed by the District Court was manifestly excessive and whether the Court should grant leave to appeal. The Court considered the nature of the offence, Ball's extensive criminal history, his lack of remorse, and the importance of maintaining discipline within correctional centres. The Court also compared Ball's sentence with those in similar cases where cumulative sentences were imposed for assaulting prison officers.

The Court of Appeal determined that the sentence was within the appropriate range, given the circumstances of the case. The President noted that the attack on the correctional officer was unprovoked and that Ball showed no remorse. Pincus JA emphasised the need to deter breaches of discipline in correctional centres through substantial penalties. Williams J also found that the sentence was appropriate, considering Ball's recent criminal history and lack of remorse. The Court concluded that the sentence was not manifestly excessive and refused the application for leave to appeal.

The final order of the Court was that the application for leave to appeal against the sentence imposed by the District Court was refused.

Orders