R v Ball - [1998] QCA 369

IN THE COURT OF APPEAL	[1998] QCA 369
SUPREME COURT OF QUEENSLAND

C.A. No. 288 of 1998

Brisbane

[R. v. Ball]

THE QUEEN

TREVOR RAYMOND BALL

(Applicant)
Thomas J.A.
Shepherdson J.
Jones J.

Judgment delivered 13 November 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL - sentence application - applicant convicted upon own confession to a charge of assault occasioning bodily harm whilst armed with a knife - sentenced to three years imprisonment, recommendation for consideration for parole after serving eight months - whether applicant’s story heard by sentencing judge - whether sentencing judge erred in not applying s.161 Penalties and Sentences Act 1992 - whether sentence manifestly excessive.
R. v. Darke C.A. No. 214 of 1996, delivered 20 August 1996. Mill v. The Queen (1988) 166 C.L.R. 59 R. v. Oakley C.A. No. 92 of 1998, delivered 26 May 1998 *Penalties and Sentences Act* 1992, s.161
Counsel:	The applicant appeared on his own behalf Mr W. Clark for the respondent
Solicitors:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	16 October 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13 November 1998

The applicant seeks leave to appeal against the sentence imposed on him on 20 May 1998 at the District Court at Townsville. He had pleaded guilty on 23 March 1998 to a charge of assault occasioning bodily harm whilst armed with a knife. After taking the plea the learned sentencing Judge ordered a pre-sentence report to be provided. At the adjourned hearing the pre-sentence report was tendered and this included reports from Mr Philip Hale, psychologist and Professor Basil James, psychiatrist.
The applicant was sentenced to three years imprisonment with a recommendation that he be considered for parole after serving eight months of that sentence.
The events giving rise to this offence occurred on 1 December 1997. For some 12 months prior to that date the applicant had resided at a caravan park on the Flinders Highway, Sellheim, near Charters Towers. The caravan park was owned and operated by Kenneth Mellow, the complainant, and his wife Shirley.
Initially the applicant paid rent for the site to which he had moved his own caravan but after a period of approximately 6 months the rent was reduced, and then waived, on the basis that the applicant would carry out odd jobs around the caravan park. The arrangement also included the fact that the applicant would be provided free of charge with some meals and provisions from the store operated by the Mellows.
This arrangement continued until the applicant started drinking to excess. He had also found employment at a nearby grape farm and so although in a position to pay rent, he continued to do the odd jobs in lieu of paying rent. These were performed in circumstances of increasing tension between himself and Mrs Mellow. The applicant had the feeling of being exploited by reason of this arrangement.
Matters…

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 [1998] QCA 369
Case: [1998] QCA 369
Decision Date: 13/11/1998

CaseChat Overview and Summary

The case of R v Ball involved the applicant, who was convicted based on his confession to assaulting another person with a knife, resulting in bodily harm. The applicant was sentenced to three years imprisonment, with the recommendation that parole be considered after eight months. The applicant appealed the sentence, arguing that the sentencing judge did not hear his full story and that the sentence was manifestly excessive. Furthermore, the applicant contended that the judge failed to consider section 161 of the Penalties and Sentences Act 1992, which pertains to the imposition of sentences.

The legal issues before the court were whether the applicant's full story was heard by the sentencing judge, whether the judge erred in not applying section 161 of the Penalties and Sentences Act 1992, and whether the sentence was manifestly excessive. The court examined the sentencing remarks and the arguments presented by the applicant's counsel. The applicant argued that his version of events, which included mitigating factors, was not fully considered by the judge, and that the judge should have taken into account section 161 of the Penalties and Sentences Act 1992. The court needed to determine if these arguments had merit and whether the sentence was just and appropriate.

The court held that the sentencing judge did hear the applicant's story, albeit not in as much detail as the applicant would have liked. The court found that the sentence was not manifestly excessive, and that the judge had considered all relevant factors, including the seriousness of the offence and the need for deterrence. The court further held that section 161 of the Penalties and Sentences Act 1992 did not apply in this case, as the judge had appropriately weighed the mitigating and aggravating factors. Consequently, the court dismissed the appeal, affirming the original sentence.

The court's final order was that the appeal was dismissed, and the original sentence of three years imprisonment, with a recommendation for parole consideration after serving eight months, was upheld.

Orders