R v Lucas

[2001] QCA 287

[2001] QCA 287

COURT OF APPEAL

McMURDO P
McPHERSON JA
PHILIPPIDES J

CA No 180 of 2001

THE QUEEN

v.

JASON JOHN LUCAS

BRISBANE

..DATE 23/07/2001

JUDGMENT

PHILIPPIDES J:  The applicant for leave to appeal against sentence was convicted on his own plea of guilty in the District Court of Brisbane on 19 June 2001 of one count of assault occasioning bodily harm.  The sentence imposed was one of three months imprisonment.  The application is brought before this Court on the basis that the sentence was manifestly excessive. 

The circumstances of the offence were that the applicant, who was 28 years of age at the time of the offence being born on 4 August 1972, assaulted a ticket inspector after the applicant had been requested to supply his name and address.

The applicant, who had a weekly ticket, had jumped over a fence to catch his train.  He was confronted by the complainant ticket inspector who asked the applicant for his details.  The applicant alighted from that train but shortly thereafter the applicant was approached by the complainant in another train and asked for his details again.  It was on that occasion that the assault occurred.

The assault consisted of the applicant pushing the complainant in the chest following which a struggle ensued during which the applicant kneed the complainant in the groin, albeit not intentionally according to the applicant's version of the incident which was not contested. 

As a result of the assault, the complainant suffered minor injury to his chest, shoulder and some slight injury to his scrotum.  Before the learned sentencing Judge the Crown contented for a term of between six to nine months.  Counsel for the applicant conceded that this was not out of range, but urged that any sentence imposed be fully suspended.

In this Court, it is conceded by the applicant's counsel that in all the circumstances of the case the learned sentencing Judge was not left with many sentencing options.  However, it is contended that the learned sentencing Judge did have open to him the option of wholly suspending the sentence and setting an operation period.

It is submitted that the appropriate range was one of three to six months imprisonment wholly suspended and that the sentence which should have been imposed was one of three months imprisonment wholly suspended, alternatively suspended after serving one month.  It is submitted that the matters that ought to have persuaded the learned sentencing Judge were:

(a)although the applicant had a lengthy criminal history for offences of violence it had been some ten years since his last offence involving the use of violence;

(b)that the previous offences were committed when aged 17 or 18 and alcohol was associated with those offences;

(c)the applicant had matured since his early youthful difficulties resulting in offences and obtained employment which he had maintained for nearly nine years;

(d)the applicant's conduct resulting in injury to the complainant was not the result of an intention to do injury, in other words, it was not deliberate;

(e)if the applicant were sent to prison, he was likely to lose his employment which he had held for several years; and

(f)the applicant showed restraint in the circumstances, against the background of his previous conduct in the past resulting in the prior convictions.

In sentencing the applicant, the learned sentencing Judge referred to aspects of the case relevant to penalty.  In particular, his Honour took into account the fact that the applicant had pleaded guilty, the nature of the injuries suffered by the complainant, the applicant's prior criminal history including the fact that there had been a substantial period of time since his last conviction involving violence.

He also took into account the fact that the offence was committed whilst the applicant was on probation and the need to send a message of deterrence in order to protect ticket inspectors in their performance of their duty.

The learned sentencing Judge rightly emphasised the importance of the fact that ticket inspectors need protection in the performance of their duty and anyone who assaults them should expect to be dealt with in a way that will indicate that such offences will not be tolerated.

Bearing in mind all the circumstances of the case, I am not persuaded that the sentence imposed was manifestly excessive.  I therefore refuse leave to appeal against sentence.

THE PRESIDENT:  I agree.  Whilst a slightly more lenient penalty could have been imposed in this case for the reasons given by Justice Philippides it is plain that the sentence that was imposed was not outside an appropriate sentencing discretion.  I agree that the application should be refused.

McPHERSON JA:  I also agree.

THE PRESIDENT:  The order is the application is refused.

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