R v Bean - [1999] QCA 359

99.359

COURT OF APPEAL
PINCUS JA
McPHERSON JA

CHESTERMAN J

CA No 95 of 1999
THE QUEEN
v.

CHRISTOPHER ROY BEAN	Applicant
BRISBANE ..DATE 26/08/99

JUDGMENT occasioning bodily harm to Darren Flood on 21 April 1996.

CHESTERMAN J: On 23 February 1999 after trial in the

The applicant was then 21 years of age and had only a slight criminal history. He had been convicted in January of 1996 of possessing a dangerous drug and of a pipe used in connection with smoking the drug, no doubt cannabis. For the assault he was sentenced to 12 months imprisonment, the term to be wholly suspended for an operational period of three years. A conviction was recorded.

The applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive. It is contended that the appropriate punishment would fall within a range from a nominal fine to an order that the applicant undergo probation or perform community service. It is submitted that no conviction should have been recorded.

The offence was committed in a street near the applicant's family's home late at night. The applicant together with members of his family and friends had been celebrating his 21st birthday at a football club. The complainant had been one of the guests. When the party finished a number of the party goers returned to the family home. At the house the complainant behaved disagreeably towards the applicant's mother and sister. The sister responded by pushing a tart into the complainant's face. He abused her and the applicant came to her defence. He was heard to say, "What's

260899 T3/SKH11 M/T COA207/99

a 21st without a fight," and then aimed a number of kicks at
the complainant, none of which connected.

The assailants were separated but a man named Johnson, who was also accused with the applicant of assaulting Flood, came to blows with the complainant. They fell to the floor where each continued to throw punches at the other. They too were separated.

The complainant left the house and walked off with some other guests to a motor car parked outside the home and some short distance up the street. After an interval the applicant approached the complainant and punched him with a closed fist to the right side of the face. Flood fell to the ground whereupon both the applicant and Johnson kicked him. The applicant stomped on the complainant's right ankle as he lay on the road. The applicant and Johnson then left.

Mr Flood suffered a fractured fibula, the smaller bone in the lower leg, just above the level of the ankle. As well he had bruising to the back of his head, a laceration on the inside of his lip and a graze to his right elbow. The fracture was treated by immobilisation in a slab which remained in place for about six weeks. The complainant could not return to work until after 2 July 1996.

The charge against Johnson was dismissed at the committal…

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 Bean

Details

AGLC: R v Bean [1999] QCA 359
Case: [1999] QCA 359
Decision Date: 25/05/1999

CaseChat Overview and Summary

In the case of R v Bean, the applicant, Christopher Roy Bean, sought leave to appeal against his sentence for assault occasioning bodily harm to Darren Flood. Bean was convicted and sentenced to 12 months imprisonment, wholly suspended for three years, for an incident that occurred on 21 April 1996. The incident arose out of a dispute at a birthday party, where Bean punched Flood and subsequently stomped on his ankle, causing serious injury.

The legal issue before the Court of Appeal was whether the sentence imposed was manifestly excessive. Bean argued that a more appropriate punishment would have been a nominal fine, probation, or community service, and that no conviction should have been recorded. The Court considered this argument in light of previous cases, particularly The Queen v Walsh, Sayer and Thompson, where the Court had imposed a suspended sentence and fines for a similar offence. Bean contended that he had been sentenced more severely for a less serious offence.

The Court of Appeal acknowledged that the circumstances of each case varied, and that it was difficult to make exact comparisons between cases. However, the Court found that the assault in this case was serious and cowardly, justifying a significant penalty. While the Court agreed that the operational period of three years might be excessive, it was of the opinion that the sentence overall was not manifestly excessive. The Court allowed the appeal to the extent of reducing the operational period of the suspended sentence from three years to 18 months, while confirming the rest of the sentence.

Orders