R v King

[2008] QCA 1

SUPREME COURT OF QUEENSLAND

CITATION:

R v King [2008] QCA 1

PARTIES:

R
v
KING, Peter
(applicant)

FILE NO/S:

CA No 356 of 2007
DC No 2183 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bowen

DELIVERED EX TEMPORE ON:

30 January 2008

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2008

JUDGES:

de Jersey CJ, Keane JA and Holmes JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal granted.

Appeal allowed.

Set aside the sentence of six months imposed in respect of the serious assault and sentence the applicant in lieu to four months imprisonment suspended after two months for an operational period of two years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – INTOXICATION – DISORDERLY BEHAVIOUR – ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER – GENERAL PRINCIPLES – where the intoxicated applicant spat blood and phlegm onto a police officers face and mouth – where applicant pleaded guilty to committing a common assault and a serious assault – where there were mitigating factors – whether the sentence imposed was manifestly excessive

R v Barry [2007] QCA 48; CA N0 2 of 2007, 23 February 2007, considered
R v Hamilton [2006] QCA 122; CA No 336 of 2005, 21 April 2006, considered
R v Laskus [1996] QCA 120; CA No 56 of 1996, 24 April 1996, considered

COUNSEL:

M J Byrne QC, with P J McCafferty, for the applicant
G Cash for the respondent

SOLICITORS:

Nyst Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  The applicant is a 30 year old man who, when aged 29 years, committed a common assault and a serious assault to which he pleaded guilty in the District Court.  For the serious assault he was sentenced to six months' imprisonment suspended after three months for an operational period of two years.  For the common assault he was sentenced to two months' imprisonment to be served concurrently with the three months. 

At the time of the offences the applicant had no prior criminal history.  He subsequently incurred a conviction for obstructing a police officer which the present sentencing Judge described as "really of no consequence" in the District Court proceeding.  The applicant seeks leave to appeal against the six months' sentence imposed upon him for the serious assault.

On 9 July 2006 at a backpacker's bar at Airlie Beach in North Queensland security officers found the apparently intoxicated applicant sleeping at a table.  He was escorted from the premises to the footpath outside where he was forcibly placed on the ground.  The offence of common assault arose from the applicant's scuffle with one of the security officers in the course of which the applicant was injured though not seriously.  Police officers were summoned.  The applicant could not walk without stumbling and was laughing and…