R v Mathieson

[2005] QCA 313

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mathieson [2005] QCA 313

PARTIES:

R
v
MATHIESON, Nellda Jae
(applicant/appellant)

FILE NO/S:

CA No 199 of 2005
DC No 326 of 2005
DC No 107 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

26 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2005

JUDGES:

McPherson and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, McPherson and Jerrard JJA concurring as to the orders made, Fryberg J dissenting

ORDERS:

1.    Application for leave to appeal against sentence granted

2.    Appeal against sentence allowed

3.    Sentence imposed below on counts 1 and 2 varied in each case by reducing the head sentence of imprisonment from 12 months to six months and by reducing the period before suspension of the imprisonment from four to two months

4.    Period of suspension reduced from 18 months to 12 months

CATCHWORDS:

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – assault occasioning bodily harm – offences committed against police officer whilst resisting arrest – whether 12 month sentence suspended after four months for operational period of 18 months manifestly excessive

Criminal Code 1899 (Qld), s 339(1), s 340(b)

R v Conway [2005] QCA 194; CA No 121 of 2005, 10 June 2005, considered
R v Wotton & Bourne; ex p Attorney‑General [1999] QCA 382; CA Nos 215 & 216 of 1999, 9 September 1999, considered

COUNSEL:

C Heaton for the applicant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: The applicant for leave to appeal was sentenced to imprisonment for 12 months suspended for 18 months after serving 4 months on each of one count (count 1) of serious assault contrary to s 340(b) of the Code, and a second count (count 2) of doing bodily harm contrary to s 339(1) of the Code. She was also sentenced to concurrent terms of 1 month for obstructing police and 2 months for assaulting police. In addition she was convicted, but not further punished, for consuming liquor in a public place, and under the Police Powers and Responsibilities Act 2000 for refusing to state her name when required to do so.

1. Very early in the morning at about 3.50 am the applicant was seen by police constables John Curry and Donna Burley standing in the roadway in the town of Ingham arguing with someone. A car coming along the street needed to swerve to avoid hitting them. The police asked them to move off the roadway, but the applicant, who was drinking from a can of rum UDL and was intoxicated, became aggressive and used abusive language to the police.  She refused when asked to state her name, saying that she did not have to tell them anything.

1. The…