R v Bell

[1994] QCA 406

[1994] QCA 406

COURT OF APPEAL
DAVIES JA
McPHERSON JA

MACKENZIE J

CA No 200 of 1994
THE QUEEN
v.

MARK ANDREW BELL Applicant

BRISBANE
..DATE 24/08/94
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DAVIES JA: The applicant was convicted on his own plea in the
Magistrates Court at Cairns on 13 May this year on five
counts. The first of these was a charge of possession of a
dangerous drug, namely cannabis, that offence having occurred
on 10 May this year. In respect of that offence the applicant
was sentenced by the Stipendiary Magistrate to 14 days'
imprisonment. The second charge was one of wilful destruction
of property on 1 April this year. In respect of that he was
sentenced to six weeks' imprisonment, cumulative on the
14 days to which I have referred.

The third charge was also one of wilful destruction of property on 30 April 1994, and on that he was sentenced to six weeks' imprisonment, which was a concurrent term. The fourth charge, the most serious of those for which he was charged, was one of aggravated assault, also on 30 April 1994, and on that he was sentenced to six months' imprisonment cumulative on the six weeks' imprisonment in respect of the second charge. The last charge was one of, again, wilful destruction of property, this time on 1 May 1994, and on that he was sentenced to one month's imprisonment, which was a concurrent term.

The effect of this was that the total term of imprisonment
imposed in respect of all of those offences was one of eight
months and the learned magistrate added a recommendation that
the applicant be eligible for parole after serving four months
of that term.
240894 T 4/OW M/T COA94/249
The applicant is 29 years of age, having been born on
7 February 1965. The circumstances with respect to the first
of those charges are that he was found in possession on 12 May
1994 of a small foil containing cannabis. All of the other
charges arose out of a domestic relationship which the
applicant had with a woman. The first of them, that is
charge 2 on 1 April 1994, one of wilful destruction of
property, arose out of an argument between the parties on that
day in a flat in which they were living in Cairns. The
complainant said that the applicant gathered a quantity of her
clothing, some of her books and a stereo unit, placed them in
a pile, poured petrol on them and set fire to them. They were
destroyed beyond repair.

The second of these domestic incidents, the third charge to which I have referred, and the fourth charge both occurred on 30 April. The first of them, one of wilful destruction of property, was not much different from the first. Again, it involved the destruction of property of the complainant by the applicant. This time he ripped and tore some of her clothes and threw them on the floor. He also punched holes in the wall of the flat and smeared dog faeces on the walls. During an interview he admitted this to the police.

The complainant, not surprisingly, became very angry and
shouted at the applicant about this. The applicant in turn
became aggressive, and he said in order to stop her yelling
240894 T 4/OW M/T COA94/249
because he was concerned of police intervention he struck her
with his open hand on the head. He hit her just above the
left eye and as a result of that she had some swelling and
bruising around the left eye but no permanent disability. He
then pushed her and caused her to fall to the ground.
The final charge, again of wilful destruction of property, on
1 May involved throwing a brick through the window of the flat
to which I have referred.

The applicant cooperated with the police and pleaded guilty at an early stage. These are matters to which Mr Farmer referred us and suggested they were matters to which the learned magistrate should have paid greater attention.

The offences must be looked at in the context of the
applicant's prior criminal conduct. He has a very long
criminal history dating back to 1982; a long and frequent
criminal history over that period. Many of his offences
involve dishonesty, but most disturbing for present purposes
are three offences of violence against the person - one in
1986, an aggravated assault for which he was imprisoned; in
1988 it appears he had unlawfully wounded and unlawfully
assaulted someone. He has also been convicted of going armed
in public in a manner so as to cause fear, and most relevant
for present purposes is a conviction on 18 June 1993 for
assault occasioning bodily harm whilst armed with an offensive
weapon.
240894 T 4/OW M/T COA94/249

I should also add that at the time of the commission of the offences the subject of this application, the applicant was on probation. He appears in respect of offences for which he was convicted in Mount Isa on 5 March 1993, they being offences of unlawful use of a motor vehicle and breaking, entering and stealing. It was submitted on the applicant's behalf in his favour it was said that he was suffering from schizophrenia. It is by no means certain that this is so. The only medical evidence on this question comes from a Dr Stephenson who was told by the applicant that he had schizophrenia and thought it would be useful to inquire from his general practitioner in Western Australia and was awaiting information from him, but nothing appears in the record to indicate what that information was. In any event, there is no medical suggestion of schizophrenia had anything to do with the offences which he committed in this case.

The applicant's conduct in this case, in my view, having
regard to his previous criminal history fully justified a term
of eight months' imprisonment. The learned magistrate, it is
true, imposed cumulative terms and it may well be that he was
incorrect in doing that, but that, it seems to me, is
irrelevant in the circumstances of this appeal where if we are
of the view that for the overall criminality a sentence of
eight months' imprisonment was within range the cumulative
nature of the orders which the learned magistrate imposed are
in my view irrelevant.
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In my view, for the reasons I have given, the overall term of eight months' imprisonment was well within the appropriate range and I would therefore refuse the application.

McPHERSON JA: I agree.

MACKENZIE J: I agree.

DAVIES JA: The order is as I have indicated.

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