R v Jones

[2003] QCA 474

SUPREME COURT OF QUEENSLAND

CITATION:	R v Jones [2003] QCA 474
PARTIES:	R
v
JONES, Paul Anthony
(applicant)
FILE NO/S:	CA No 326 of 2003 DC No 1552 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED EX	30 October 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	30 October 2003
JUDGES:	McPherson JA and Mackenzie and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT & PUNISHMENT – SENTENCE – FACTORS – CHARACTER OF OFFENCE – GENERALLY – whether short period of custody can be said
to be excessive for assault of this type
COUNSEL:	K M McGinness for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: On the 8th of October last, the applicant

pleaded guilty in the District Court at Brisbane, to a charge

of occasioning bodily harm. He was sentenced to imprisonment
for 18 months, suspended after serving three months, for a

period of two and a half years.

He applies for leave to appeal against sentence, on the ground

that the sentence was excessive. The substance of the

complaint is that it was wrong to impose any term of actual

imprisonment on the applicant.

The circumstances leading to the offence are that on 26 August

2002, the complainant drove to a building in the West End,

where he had his office, and parked his car against the wall

in the underground car park. The complainant chose a place,

perhaps because it was the only one available, that was

reserved for someone else.

He was evidently not away for long, but, when he returned, he

found his car had been parked in by someone else, possibly the

legitimate occupier of the parking space.

The next thing he recalls, or the last thing he recalls, is

seeing the applicant approaching him, but he remembers nothing

else.

The applicant himself had driven into the same car park, where

he had a permanent car parking space of his own. He found

that it had been occupied by another, who was not the

complainant in this matter. He also saw the complainant, and

noticed that the complainant had parked his car where he
should not have been, and was sitting in his car sounding the

car horn.

The applicant approached the complainant and an argument of

some kind ensued, in which the applicant struck the

complainant twice in the face.

The second blow was powerful, causing the complainant to fall

back and to hit his head on a car behind him and then on the

concrete floor where he fell.

The medical evidence is that reasonable force must have been

used in inflicting the blow that brought the complainant to

the ground.

As a result, the complainant sustained an extensive comminuted

fracture of the skull and an underlying extradural haematoma.

He was in hospital for approximately one month. Fortunately

for everyone, his injuries have largely resolved with the

passage of time.

At sentencing there was some remaining problem with his gait

or walk and perhaps with his spine, but it was accepted that

these would settle in time.

It was on this basis that a plea of guilty was accepted to the

charge of assault occasioning bodily harm, in satisfaction or

in preference to the original charge of grievous bodily harm.
He was sentenced on that lesser basis. Some circumstances

existed that went in mitigation. On the previous day, the

applicant's car had been written off in a serious accident and

he was not in the mood for drivers who disregarded the rights

of others.

Parking spaces, it must be said, arouse strong feelings of

territorial aggression, even among some quite rational people.

By sounding his horn, the complainant was aggressively

demanding attention to his own self-imposed plight, at a time

when it is said the applicant was trying to telephone tow away

assistance to clear his own parking space.

After punching the complainant, the applicant had at least the

decency not to clear off, but to dial triple 0 and call an

ambulance and he waited with the complainant for the ambulance

to come.

He confessed to the police that he had hit the complainant,

but at first also told them some admittedly false account that

the complainant had tried to kick him several times.

His victim, it should be observed - and this is a factor that

goes against the applicant - was a man aged 70 years of age,

although the applicant said that he thought he was only about

60. The applicant himself was a burly man.

The applicant was 44 years old at sentencing. He has always

worked and supported himself and has two adult children. He
has a science degree from Deacon University and a health

academy qualification. He works long hours as a personal

trainer, from a studio in the building where the incident

occurred.

Previously, he has worked as a general manager and for some

years as a bouncer, as well as working for two years as a

prison guard. His record does show two previous convictions,

for dishonesty, in 1982, but he has no prior history of

violence of any kind.

It is not often one can feel much sympathy for people who use

violence on others and, in doing so, inflict severe injury,

although the applicant may have been fairly tested in the

circumstances I have outlined here.

He was fortunate indeed that the complainant has recovered so

completely from the effects of the assault. The real question

before us on appeal is, however, not whether the learned

sentencing Judge could properly have imposed a sentence that

would have avoided sending the applicant to prison, but

whether the short period of custody imposed on the applicant

in this case, can be said to be excessive for an assault of

such force as to knock the victim down and fracture his skull.

In my opinion, it is not possible to answer that question in

the affirmative.

The sentence imposed cannot be considered to be excessive

having regard to the effects that followed, nor to the blow
that was struck by the applicant in assaulting the

complainant.

I would, in the circumstances, dismiss the application for

leave to appeal against sentence.

MACKENZIE J: I agree.

WILSON J: I agree.

McPHERSON JA: The application for leave to appeal is

dismissed.