R v Puchala

[2003] QCA 560

SUPREME COURT OF QUEENSLAND

CITATION: 

R v Puchala [2003] QCA 560

PARTIES: 

R
v
PUCHALA, Paul
(appellant)
PUCHALA, Matthew
(appellant)

FILE NO/S: 

CA No 332 of 2003 CA No 334 of 2003 DC No 352 of 2003

DIVISION: 

Court of Appeal

PROCEEDING: 

Appeal against Conviction & Sentence

ORIGINATING 
COURT: 

District Court at Maroochydore

DELIVERED EX 

11 December 2003

TEMPORE ON: 

DELIVERED AT: 

Brisbane

HEARING DATE: 

11 December 2003

JUDGES: 

Williams JA and Chesterman and McMurdo JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDERS: 

1.	In each case of Paul Puchala and Matthew Puchala appeal against conviction dismissed
2.	In the case of Matthew Puchala application for leave to appeal against sentence dismissed
3.	In the case of Paul Puchala (b) Appeal allowed

(c) Add to the sentence imposed at first instance an order that the sentence be suspended after serving nine months with an operational period of four years

CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where appellants father and son convicted of assault occasioning bodily harm – where father sentenced to two and a half years imprisonment – where baseball bat used in assault – where no significant criminal history – where appellant had done a large amount of community work over a lengthy period of time – where suffers disability in his hip – whether sentence imposed on father manifestly excessive
COUNSEL:	The appellant in CA No 332 of 2003 appeared on his own behalf The appellant in CA No 334 of 2003 appeared on his own behalf D L Meredith for the respondent
SOLICITORS:	The appellant in CA No 332 of 2003 appeared on his own 10
The appellant in CA No 334 of 2003 appeared on his own behalf
behalf respondent

WILLIAMS JA: After a trial in the District Court, Paul

20

Puchala was convicted of two counts of assault occasioning bodily harm with a circumstance of aggravation and one count of wilful damage. He was sentenced to two and a half years imprisonment on each count of assault occasioning bodily harm, and six months imprisonment on the wilful damage count. All

30

sentences were to be served concurrently.

His son, Matthew Puchala, was convicted of one count of assault occasioning bodily harm with a circumstance of aggravation. He was sentenced to 18 months imprisonment,

40

suspended after six months with an operational period of two years. Both appealed against conviction and sought leave to appeal against sentence.

When written outlines were submitted, Matthew Puchala

50

indicated that if he did not succeed on his appeal against
conviction he did not wish to challenge the sentence. When
the appeal were called on certain matters were drawn to the
attention of the appellants with respect to grounds of appeal
which challenged the appropriateness of their legal
representation. 2 60

After considering issues raised by the Court with them over

the luncheon adjournment, both appellants indicated that they	10
left for consideration by this Court the application by Paul
wished to withdraw their appeals against conviction. That imposed on him.
20
The events giving rise to the convictions were particularly
serious but it does appear that they must be assessed against
the background of some matrimonial disharmony. Paul Puchala
and his wife, Hilary, had separated and there was some on
going disputation between them, some of which would appear to	30
involve questions of custody of the boy, Tim, who at the time was aged about 12.
The offences occurred on the 23rd of August 2001. At that
time the two appellants and other persons including the co-	40
accused, Amy Dunford, were living in a house near Cooroy. The complainants, Mr and Mrs Breeze, came to that address on the night in question obviously with intention of raising with the Puchala's issues relating to the matrimonial dispute.
50

It is sufficient for present purposes to say that fighting broke out. Mr Breeze appears to have been attacked initially by Matthew and then by Paul. At some stage a baseball bat was used in the fracas, and on the jury findings, it was Paul Puchala who used that baseball bat to occasion injuries to both Mr and Mrs Breeze. 3 60

It is the use of the baseball bat which makes the offences

particularly serious. In those circumstances a head sentence	10
of two and a half years imprisonment is well within the range given comparable sentences imposed by Courts for offences of this type.
The real question is whether or not various matters personal	20
to Mr Paul Puchala warrant the Court ameliorating that sentence by ordering that it be suspended at an earlier point of time than the time at which he would become eligible to apply for parole.
30
It appears that in 1979 Paul Puchala was seriously injured in a motor vehicle accident and received significant orthopaedic injuries. Initially it appeared he may never be able to work again but through some hard work on his part he was able to
get various jobs as a builder supervisor or manager.	40
He sustained a fall in 1993 and on that occasion injured his
hip badly, rendering him unable to work in his former
capacities. Thereafter it is accepted that he embarked on
working for the community obtaining various positions.	50
His counsel before the sentencing Judge outlined a number of
those positions in broad terms and the applicant has
particularised those activities in some more detail in his

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written outline. It is accepted that for about six years he
was a community service supervisor for the Noosa Community
Corrections manager.
During that time he spent some 30 to 50 hours per week working

free of charge supervising the work of persons subject to such	10
community service orders. In addition he has been president of the Cooroy Sports Complex and various soccer clubs and youth clubs in the neighbourhood. He has been involved in raising funds for a number of those sporting organisations.
20
The issue with his hip was mentioned by counsel before the
sentencing Judge. The learned sentencing Judge was told that
he suffered continuing effects from his hip injuries since
1979, through 1993, and that he'd had hip replacement
operations in 2000 and 2002.	30
The on going disabilities were referred to in a very general
way as involving disability to his legs and hips, with his leg
popping out of the joint quite frequently. Counsel said
earlier this year he spent a few months on his back in bed	40
connected to drips because of infections associated with his hip replacements.
It seems that he suffered some serious golden staph infections
in relation to the previous hip surgery. That is a matter	50

which has been stressed by Mr Paul Puchala in support of his application for leave to appeal against sentence. It does appear that he has a significant hip disability. It appears that as a result of the staphylococcal infection there is loss of some bone in the area and his hip has dislocated on regular occasions. The applicant in submissions before us spoke of it dislocating some five times since he's been in gaol since 19 September 2002.	5	60
10

Counsel for the prosecution accepted in this Court that
because of the hip disability he would, to use the colloquial
expression, do his time harder in gaol because of his
significant disability. It is probably also fair to say that

whilst he is in the same prison as his son he will get some	20
support from his son but when his son is discharged after serving six months he will of course lose that support.
In my view it is significant that the experienced sentencing
Judge in his brief sentencing remarks did not advert to the	30
consequences of the injury when it came to the applicant
spending time in gaol. In my view there was insufficient
weight given to that consideration. As I have said the time
that this applicant spends in goal will be the equivalent of a
much longer period than compared with a person of normal	40
robust health.
As I have already said because of the serious nature of the
assault offences in particular the use of an offensive weapon
the head sentence of two and a half years should stand but in	50
my view, taking into account the factors personal to the
applicant in particular the fact that he has no significant

criminal history, his valuable community work over a lengthy period of time and more significantly the disability that he suffers from his hip and the effect that it will have on time 6 60

served in gaol I am of the view that there should be added to
the sentence imposed an order that the sentence be suspended
after he has served nine months thereof and the operational

period should be fixed at four years.	10
The orders that I would therefore propose are in each case of
Paul Puchala and Matthew Puchala appeal against conviction dismissed. In the case of Matthew Puchala application for leave to appeal against sentence dismissed. In the case of	20
Paul Puchala grant leave to appeal against sentence, allow the
appeal and add to the sentence imposed at first instance an
order that the sentence be suspended after serving nine months with an operational period of four years. That will cover all counts.	30
CHESTERMAN J: The assaults of which the applicant Paul
Puchala was convicted were rightly described by the trial
Judge as prolonged and vicious. The use of a baseball bat,
especially against a woman, was deplorable. The sentence	40
cannot in my view be criticised but for the physical
disability of the applicant. For the reasons given by Mr
Justice Williams the Court should conclude that imprisonment for him will be especially arduous. For that reason alone I agree with the order proposed.	50
McMURDO J: I agree with the reasons given by Justice Williams
and the orders he proposes.

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WILLIAMS JA: Now, Mr Puchala, I'll just explain that to you so that you're fully appraised of it. Your sentence will be suspended after you serve nine months. Then you will be

subject to a good behaviour bond in effect for a period of	10
four years. That means if you commit any further offence
during that operational period you will be required or called
upon to serve the balance of your sentence which is 21 months.
So that should be an incentive to you to ensure that no
further offences are committed during that operational period.	20
APPELLANT PAUL PUCHALA: Thank you, your Honour.
WILLIAMS JA: There's nothing further required in relation to
that, Mr Meredith?	30
MR MEREDITH: No, your Honour.

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