R v Boxall

[2013] QCA 375

SUPREME COURT OF QUEENSLAND

CITATION:

R v Boxall [2013] QCA 375

PARTIES:

R
v
BOXALL, John Robert
(applicant)

FILE NO/S:

CA No 171 of 2013
SC No 516 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2013

JUDGES:

Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring to the order made

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to seven years imprisonment with a parole eligibility date set at two years and four months in respect of an offence of malicious act with intent – where the applicant fired a spear from a spear gun into the complainant's stomach, causing him serious injury and lasting disability – where the applicant accepted that a sentence of seven years was appropriate, but contended that a parole eligibility date should have been set after two years, having regard to injuries which the complainant had inflicted on him in an earlier confrontation – where the sentencing judge took the injuries to the applicant into account – where an aggravating feature of the offence was that the applicant was not in any immediate confrontation with the complainant when he fired the spear gun – whether in all the circumstances it was open to the sentencing judge to set the parole eligibility date at one third of the sentence

R v Beer[2000] QCA 193, cited
R v Brannigan; R v Green[2009] QCA 271, cited
R v Dempsey[2001] QCA 141, cited
R v Dunn[2007] QCA 153, cited
R v Mitchell[2006] QCA 240, cited
R v Wease[1993] QCA 7, considered

COUNSEL:

J Noud for the applicant
P J McCarthy for the respondent

SOLICITORS:

AW Bale & Son for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA:  The applicant seeks leave to appeal against a sentence of seven years imprisonment, with a parole eligibility date after two years and four months, imposed in respect of an offence of malicious act with intent.

The factual background

1. The applicant was a 48 year old man at the time of the offence; his victim was 38.  A statement of agreed facts was tendered on sentence.  According to it, they had in the past shared a residence and had been friends, but they had begun to have heated arguments about money.  The applicant owed the complainant around $4,000, but when asked for it either claimed that he had no money or denied borrowing the funds.  The applicant tendered statements on sentence showing that the complainant had made a practice of harassing him about the debt.

1. On the afternoon of 15 November 2011, the complainant, who was drunk, telephoned…