R v Gurney

[1992] QCA 75

COURT OF APPEAL	[1992] QCA 075
MACROSSAN CJ McPHERSON JA WILLIAMS J
No 6 OF 1992
THE QUEEN v. STEPHEN JOHN GURNEY

(Applicant)

BRISBANE

... DATE 31/3/92

JUDGMENT

JUDGMENT

THE CHIEF JUSTICE: The applicant committed an offence while in prison on remand on 11 January 1991. He was found guilty of committing the offence to which I refer after a trial, that is. he did not plead guilty but the conviction followed the trial.

The offence in question was one of unlawfully assaulting and doing bodily harm to another, and offence under s 339 of the Code. There was a circumstance of aggravation in that the applicant was in company in the course of committing the offence.

That had the result that the maximum penalty imposable under the Code was seven years. That followed an amendment made in 1988. The assault occurred in the course of an altercation between the complainant, the applicant and one other person.

The applicant and the other person joined together in assaulting the complainant. The episode arose out of a game of cards. The learned trial Judge accepted the account of the episode given by the complainant and rejected the version which the applicant contended for in his evidence in the trial.

There were some serious physical results of the assault. The complainant suffered swelling and laceration to his face; small fractures to his cheekbones and he lost one tooth, and it is said, or rather was said, would lose two other teeth. He had to spend six days in hospital as a result of the assault upon him. Reading the account in the record, we can see that the assault was constituted by more than the exchange or the delivery of some isolated blows. I should not have used the word "exchange: because the complainant did not punch back, although he endeavoured to protect himself as best he could. It was a case that could fairly be described as an episode somewhat prolonged, more what would be conveyed by the description "a beating".

The complainant was trying was trying to make his way out of the room where the assault commenced to the door of that room, to make his escape, and his two attackers followed him, striking at him. After the episode had occurred and the complainant was trying to clean himself up, the record shows that the applicant, Gurney, made a treat to him that he should keep quiet about the episode and say simply that he had fallen down somewhere.

The applicant was 39 years of age. He had an extensive criminal history. He had been convicted for a variety of offences, mainly to do with drugs and driving, but also involving some dishonesty and one case of assault occasioning bodily harm, which was described as being based on domestic circumstances for which he was sentenced to a short term of imprisonment.

In respect of his previous convictions generally, we see on looking at his lengthy record that he has been sentenced to a number of custodial terms, up to 15 months and beyond. Indeed, we see terms of two and two and a half years there. Argument for the applicant before us did not endeavour to suggest that a custodial term of some sort was inappropriate. The attack was merely made upon the length of the term, namely 18 months, which the trial Judge imposed.

Having in mind the fact that the offence occurred within prison; considering the need for a deterrent and the essential requirement of keeping order, one sees that a term of some substantial length was called for. Episodes of this sort have a tendency to be subversive of discipline, unless controlled properly.

I think that His Honour quite appropriately imposed a custodial term and this is not, as I say, contested before us but I think further, having in mind the circumstances of the case and the extensive criminal history of the applicant, it cannot be accepted that the term of 18 months was excessive and I would refuse the application.

McPHERSON JA: I agree.

WILLIAMS J: The Court of Criminal Appeal in the matter of Q v. Manager and Fatefehi CA Nos 165 and 166 of 1989, judgment delivered 24 July 1989, correctly and succinctly referred to matters to which a sentencing Judge should have regard when imposing sentence with respect to an offence committed upon an inmate of a prison. Very briefly those considerations are the protection of inmates in the prison and discipline generally in the prison. Bearing in mind those observations, I agree with all that has been said by the learned presiding Judge.

THE CHIEF JUSTICE: The application is then dismissed.