R v Hope

[1993] QCA 299

IN THE COURT OF APPEAL [1993] QCA 299

SUPREME COURT OF QUEENSLAND

C.A. No. 228 of 1993

Brisbane

[R. v. Hope]

T H E Q U E E N

v.

WILLIAM JOHN HOPE Applicant

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THE PRESIDENT
DAVIES J.A.
MOYNIHAN S.J.A.

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J udgment delivered 17/08/1993

REASONS FOR JUDGMENT - THE COURT
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

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CATCHWORDS:	CRIMINAL LAW - SENTENCE - Applicant sentenced to cumulative sentence of nine months for assaults on custodial correctional officers - whether sentence manifestly excessive given need to maintain discipline in correctional centres.
Counsel:	D. Meredith for the Crown T. Rafter for the Applicant
Solicitors:	Director of Prosecutions for the Crown Legal Aid Office for the Applicant
Hearing Date(s):	12 August 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 228 of 1993
Brisbane
Before	The President Mr Justice Davies Mr Justice Moynihan

[R. v. Hope]

T H E Q U E E N
v.

WILLIAM JOHN HOPE Applicant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17/08/1993

On 10 June 1993 the applicant was convicted and sentenced for four offences; one of aggravated assault on 28 May 1993, one of aggravated assault on 1 June 1993, one of assault occasioning bodily harm on 4 June 1993, and one of assault also on 4 June 1993. All of these assaults were committed whilst the applicant was a prisoner at Lotus Glen Correctional Centre and all were committed on custodial correctional officers. The applicant was then serving a term of nine months' imprisonment, being the effective term imposed on him on 18 January 1993 for the offences of bringing stolen goods into Queensland, stealing, dangerous driving, and unlawful use of a motor vehicle; and a cumulative term of four months' imprisonment imposed on him 9 March 1993 for assault occasioning bodily harm on 18 January 1993, the date upon which he was previously sentenced. Although we were told nothing of the circumstances of this last offence it appears likely that it was committed after he had been sentenced on 18 January 1993.

For the first of the offences the subject of the present application the applicant was sentenced to three months' imprisonment; for the second he was sentenced to three months' imprisonment cumulative upon the term which he was then serving; for the third he was sentenced to six months' imprisonment cumulative upon the term of imprisonment imposed on the second offence, with a non-parole period of three months; and for the fourth he was sentenced to three months' imprisonment. He was thus effectively sentenced to a term of nine months' imprisonment cumulative upon the term which he was then serving.

The first of these offences, that committed on 28 May 1993, was of spitting upon a community correctional officer three times, once in the face. The second, committed on 1 June 1993, consisted of the applicant actually spitting into the mouth of a community correctional officer whilst the latter was speaking to him.

The third and fourth offences involved one incident. Upon being released from his cell for exercise, the applicant, without provocation or warning, attacked a community correctional officer from behind, punching him several times to the head whilst the latter sought to protect himself by covering his head with his hand, at the same time attempting to extract the key from the cell door. Finally, the officer fell to the ground, the applicant continuing to strike him. After the officer fell to the ground, the applicant gouged him in his left eye causing him severe pain and temporary blindness. During the course of attempts to restrain the applicant, the applicant then bit the officer in his left thigh, causing him severe pain, at the same time continuing to throw punches and threatening to kill him. During this same incident the applicant headbutted another correctional officer who was attempting to assist in restraining him.

The applicant is 24 years of age, having been born on 24 February 1969. He has a substantial criminal record dating from 1981, mostly for offences involving dishonesty, ranging from theft to burglary and armed robbery - he has been convicted on more than 25 occasions for offences of this kind - but he has also been convicted on five occasions for assault or assault occasioning bodily harm or offences of a like nature.

This and other courts have on many occasions stressed the importance of the maintenance of discipline in correctional centres and the consequent need to impose substantial penalties upon those who commit offences in breach of that discipline in order to deter others who might be like minded. All of the present offences involved, in our view, serious breaches of discipline. The first was not only degrading but involved the risk of endangering the health of the officer assaulted. It plainly justified a term of imprisonment. The second was even worse, involving as it did an even greater risk to health, and plainly justified a sentence cumulative upon the sentence he was serving. The third offence was violent attack upon a correctional officer, injuring him and involving him in risk of very serious injury. It fully justified the sentence which was imposed. Mr Rafter, who appeared for the applicant, did not suggest that the stipendiary magistrate who imposed these sentences was not justified in making this sentence cumulative upon the sentence for the second offence.

It was submitted that the magistrate should have taken into account the applicant's plea of guilty. We agree, but his notes indicate that he did so. Given the circumstances, we do not think that the guilty plea deserved any greater credit than the magistrate must have given it or that in any other respect he erred in the exercise of his sentencing discretion. On the contrary, we think that the total sentence imposed in this case was fully justified.

The application is therefore refused.