R v Marshall

[1992] QCA 389

COURT OF APPEAL [1992] QCA 389

PINCUS JA
McPHERSON JA

MOYNIHAN SJA

CA NO. 200 OF 1992

THE QUEEN
v.

RICHARD IAN MARSHALL

(Applicant)

BRISBANE
... DATE 30/09/92

JUDGMENT

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4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Tel:[phone]

Fax:[phone]

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PINCUS JA: This is an application for leave of appeal against sentence. The applicant, who has appeared for himself today committed an offence on 11 January 1992 of assault occasioning bodily harm. He came before the District Court for sentence having pleaded guilty on 26 June 1992 and the sentence was two years and six months with a recommendation for eligibility for parole which I will mention later.

The circumstances of the offence were as follows: the applicant was in prison on 11 January 1992 and a correctional officer was assembling prisoners who were to receive visits that morning, the applicant being one of them. The applicant inquired whether he could have breakfast before his visit and was told by the officer that that was not possible. The applicant said that he wanted to go to breakfast first and he was told he could have the visit or breakfast. The applicant said he was entitled to both.

Another officer intervened and said that he would arrange for breakfast to be brought to the applicant after his visit. The officer who was ultimately assaulted assembled the other prisoners, and asked the applicant if he was coming with them. The applicant turned to that officer and feigned to throw a punch saying, "see how easy it would be." He then walked away ignoring calls upon him to stop.

The officer ordered him to stop and that was ignored. The

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officer caught up with the applicant and said he would be breached. The applicant replied, "don't fuck with me." The applicant then struck the officer six forceful blows with his fist on the head and body.

The officer suffered a depressed fracture of the cheek bone which required surgery and according to the doctor suffered ongoing effects such as bad moods, slow thinking, headaches and the like.

The offence for which the applicant was then in prison had been committed in somewhat similar circumstances, in that the applicant had assaulted some police. He had been sentenced on 10 January 1992 to three years imprisonment which was the maximum. So that the day after his receipt of the maximum penalty he received another two and a half years which as he points out is not much short of a maximum of three years.

The applicant complains about the head sentence and says that it was too long and in particular relies upon the case of McIlroy which was decided in the Court of Criminal Appeal on 23 May 1988.

That was also an offence of assault upon two prison officers, both of whom were punched. It appears to me that the McIlroy case is not as bad as the present in that there, although McIlroy had a substantial history of violence, indeed a worse one than the present applicant, neither prison officer was severely damaged. In fact, only one of them was hurt and he was not hurt

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nearly as badly as the officer was in the present case.

In that case, the prisoner McIlroy was initially sentenced to an additional 12 months, that is 12 months on top of his then sentence, being six months in respect of each offence. On appeal that was varied so that the six months were made cumulative. He received only an additional six months imprisonment, as compared with the present applicant who was sentenced to two years and six months. It has to be said that in relation to McIlroy's case, considering that in isolation, the two years and six months is not extremely easy to reconcile with McIlroy.

The recommendation for parole, which I have mentioned, was made in these terms. After what appears to me to be a very complete and useful summary of the relevant circumstances, the Judge below said:

"There are a number of matters here which I consider

make possible a recommendation as to parole. Since you have been in prison, the contents of Exhibit 3 show that you have been devoting your time to your own advancement in a commendable way. You have obtained - and there are certificates here to say so - completion of certain educational courses, which I do not detail.

They are in the exhibit and you also have the statement of the psychologist here - which I will not read out, but to which I have given attention. There is reflected in that material some possibility for your rehabilitation, and I think that that fact makes possible that I recommend that you be eligible for parole after you have served 18 months of sentence from this day.

Those are the orders that I make."

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His Honour sentenced the applicant on 26 June 1992 and the consequence is that he became eligible for parole at a date which was beyond the halfway period of the sentence which His Honour imposed but short of the halfway period for the total sentence which he was then to serve, which was four and a half years. I should have explained that the assault for which he was convicted on 10 January produced a sentence of three years imprisonment which was reduced to two years on appeal. The consequence of the order recommending eligibility for parole after 18 months then was that the applicant became eligible for parole in December 1993. The suggestion which the applicant has made today is that the head sentence should be reduced. He complains of the fact that his assault upon the officer may make it difficult for him to get parole and he suggests that the recommendation which the Judge made may not be of much use to him.

It is my opinion that whereas, as I have said in relation to McIlroy's case, the two years and six months does not seem light and it is indeed not very easy to square the results of the two cases, I find it impossible to say that two years and six months is an excessive sentence. It is true, as Mr. Rutledge has said on behalf of the Crown, that the protection of prison warders from assaults by prisoners is a matter of the utmost importance and if it is not made clear that such assaults will be punished solidly then prison discipline would be adversely affected.

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I have had more difficulty with the recommendation for parole. The recommendation which his Honour made puts eligibility for parole not earlier than but later than the halfway period which would ordinarily have followed from the sentence. That is, 18 months is more than half the sentence of two years and six months which his Honour imposed; on the other hand, it is short of halfway, in relation to the whole four years and six months.

I agree with the Judge's view that there should be a recommendation for early eligibility for parole. In taking that view I have considered the matters which have been placed before us today by the applicant in person. There is, on the material before the Court, reason to think that despite his lamentable record the applicant is a person of some basic worth who may make something of himself and no doubt this was the view which motivated the District Court's recommendation. We have in a sense an advantage over the District Court in that we have had the opportunity of hearing from the applicant in person.

It is my opinion that the application for leave to appeal against sentence should be granted and the appeal allowed. I would leave the head sentence as it is but I would vary the recommendation of eligibility for parole so that it would become a recommendation of eligibility for parole after serving 12 months of sentence from the day of sentence in the District Court. If that order were made the result would be that the applicant would become

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eligible for parole on the 26th day of June 1993.

McPHERSON JA: I agree with what has been said by the presiding

Judge and with the order that he proposes.

MOYNIHAN SJA: So do I.

PINCUS JA: The order will be as I have indicated.

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