R v Hodges

[1995] QCA 125

COURT OF APPEAL

[1995] QCA 125

MACROSSAN CJ FITZGERALD P BYRNE J

CA No 552 of 1994
THE QUEEN
v.

MICHAEL CHARLES HODGES Appellant

BRISBANE
..DATE 22/03/95
THE CHIEF JUSTICE: This application for leave to appeal
against sentence concerns a term of imprisonment of six weeks
combined with a probation order that was imposed for an
assault occasioning bodily harm. The matter arose out of an
argument between two people who were cohabiting.

It seems that the two in question had been drinking and the episode escalated from a fairly modest beginning. But the assault which eventually took place had serious aspects. It is said that the complainant herself intiated the more serious response by the applicant by throwing a bottle at him.

However that may be, the applicant punched the woman in the face, attempted to pull her mouth open, pushed his fingers into her mouth and continued the assault by pursuing her to a nearby phone box where she was further punched. The complainant suffered swelling and bruising to the eyes and nose and a split lip.

For the applicant, it is said quite fairly, that he pleaded guilty at the first opportunity. He appeared to demonstrate remorse for his actions in that respect. It is also true, it must be said on his behalf, that he had no previous convictions for any offences involving violence.

All of that being said, the assault was a serious one, and although the Magistrate may well have dealt with the matter by imposing no custodial term, that is not the question with which this Court is concerned. This Court needs to consider the order which the Magistrate did in fact impose and decide whether it should be asserted that it lay outside any permissible range.

In my view, notwithstanding the ameliorating matters to which I have referred, the matters calling perhaps for consideration for mitigation, it cannot be said that the sentence is one which could not appropriately have been imposed by the Magistrate and accordingly the sentence cannot be regarded as manifestly excessive and I would refuse the application.

THE PRESIDENT: I agree.

BYRNE J: Personal deterrence was among the matters mentioned on behalf of the Crown. Generally speaking, in my view, short terms of imprisonment dispel the fear of the unknown - apprehension which, where it exists, itself has a deterrent value. For this reason, in my opinion, short sentences are generally not an attractive sentencing option. But the shortness of the sentence here may be explained by the plea of guilty and the absence of any prior conviction.

In the result, I am not persuaded that the Magistrates's sentencing discretion miscarried. I agree in the order proposed.

THE CHIEF JUSTICE: The application is refused.

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