DAVIES JA: The applicant pleaded guilty in the District Court at Townsville on 18 April this year to one count of serious assault, which was biting a police officer in the execution of his duty; two of wilful damage, which were throwing rocks, or in one case I think a brick, through a window; and three summary offences, two of threatening words, and one of breach of a domestic violence order.

These all occurred on 4 November 2000. The applicant is 27 years of age having been born on 23 October 1973. He was sentenced to eight months imprisonment, partially suspended after three months with an operational period of two years in respect of the serious assault and in respect of each of the other offences he was sentenced to one month imprisonment.

He has a short but relevant prior criminal history. In 1995 he was convicted of wilful and unlawful damage to property for which he was fined. No conviction was recorded. In the same year, he was found guilty of unlawful assault, no conviction was recorded and he was ordered to enter into a recognisance to be of good behaviour for a period of 6 months. Again in the same year, he was convicted of assault occasioning bodily harm and fined and ordered to pay compensation.

A domestic violence order was issued against him. He was found to be in breach of that domestic violence order in 1997 but the circumstances of the breach have not been disclosed and so it is not possible to say whether that breach involved any element of violence.

The applicant resided with his de facto wife on Palm Island and the offences arose out of a domestic incident on the morning in question when the applicant appears to have been substantially affected by alcohol.

On that morning, police were called to the residence at which the applicant and his de facto wife were residing. As they observed, the applicant picked up a rock and threw it through a sliding door on the second level of the residence. He then approached the driver's door of the vehicle which was then pulling up and while the officers were still inside it, he said, "Come out and I'll bash you, you white fucking cunt."

The witnesses later told the police that prior to their arrival the prisoner had thrown another rock through a different window at the bottom level of the residence; they were the two offences to which I referred earlier of wilful damage.

One of the police officers then got out of the vehicle and tackled the applicant who broke free and then began to run away. He was tackled again and a struggle ensued. Both officers were involved in attempting to subdue the applicant who attempted to throw punches at both officers but no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Reuben

Details

AGLC: R v Reuben [2001] QCA 322
Case: [2001] QCA 322
Decision Date: 07/08/2001

CaseChat Overview and Summary

The case of R v Reuben was heard by the Court of Appeal in Queensland. The applicant, John Wallace Reuben, appealed against his sentence for various offences, including serious assault, wilful damage, and breaches of a domestic violence order. The court found that the sentencing judge erred in concluding that imprisonment was the only appropriate penalty for assaults on police officers in the execution of their duty. The applicant had already served 15 days of his sentence before the appeal, and the court decided to re-sentence him.

The legal issue in this case was whether the sentencing judge had erred in imposing a custodial term for the applicant's offences, particularly given that assault on a police officer in the execution of their duty does not necessarily mean that imprisonment is the only appropriate penalty. The court found that the sentencing judge had indeed erred in law by concluding that imprisonment was the only appropriate penalty, which may have led to the imposition of a custodial term. This error necessitated the Court of Appeal to re-sentence the applicant, taking into account the circumstances of the case and the applicant's background.

The Court of Appeal considered the applicant's relatively young age, stable relationship, work history, and limited criminal history. The court acknowledged the seriousness of the offence, particularly the biting of a police officer, but also took into account the applicant's genuine remorse, his plea of guilty, and the time he had already spent in custody. The court decided that, while the offence warranted a custodial term, the applicant had already served some time in custody, and therefore, it was appropriate to suspend the sentence. The court imposed a sentence of three months' imprisonment, wholly suspended, for the serious assault, and one month's imprisonment, also wholly suspended, for each of the other offences, with an operational period of 18 months.

The court made a declaration that the 15 days the applicant had already served would be considered as time served, and if the applicant was ever called upon to serve the three months' imprisonment, the 15 days would be deducted. The orders were as indicated by the presiding judge, and the appeal was allowed.

Orders