R v Siddell

[1997] QCA 346

[1997] QCA 346

COURT OF APPEAL
DOWSETT J
MACKENZIE J

HELMAN J

CA No 166 of 1997
THE QUEEN
v.

PHILLIP JOHN SIDDELL

BRISBANE

..DATE 18/06/97

JUDGMENT
180697 T13/VT26 M/T COA131/97

DOWSETT J: The applicant was born on 20 May 1971 and is 25 years of age. He was convicted on 18 April 1997 of two offences committed by him on 22 January 1997 whilst he was a prisoner at the Borallon Correctional Centre. He was, at the time, serving a sentence for armed robbery. Two cumulative sentences, one for assault occasioning bodily harm and one for breaking and entering, had extended the period which he had to serve. The figures provided by the Crown suggest a total sentence of about eight and a quarter years, although the applicant believes it to be nine and a half. It probably does not matter for present purposes.

The offences of which he was convicted on 18 April involved one of resisting lawful authority in the prison and one of common assault. He was sentenced to 12 months imprisonment cumulative upon the sentences he was already serving on the resisting authority count and to a further period of six months concurrent with that 12 months sentence in respect of the common assault count. In addition he was dealt with on the same day for another offence which occurred on 12 March 1997, a charge of obstructing police. On that count he was sentenced to a further period of three months imprisonment cumulative upon the 12 months sentence.

It seems that his intention is to appeal against all three sentences although only one, that is the one relating to the common assault count, is before this Court. I would infer that the other two were simple offences and that appeals have been instituted in the District Court, if at all.

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I stress therefore that I am presently concerned only with the common assault count.

As I have said the principal sentence which the applicant is presently serving is for armed robbery. As a prisoner, he has previously been convicted of an offence of assault occasioning bodily harm. Thus the use or threatened use of violence is, by no means, something which is out of character for him, having regard to his past history.

The current assault was committed upon a Correctional officer who entered the prison yard to apprehend him after he had refused to leave the yard and had offered violence to anybody who attempted to remove him. When the complainant sought to apprehend him, the applicant struck him with a mop handle, which blow the complainant took on a shield which he was carrying as part of the riot control gear which he had donned as a result of the applicant's conduct.

Given the applicant's previous record, a sentence of six months for an offence of that kind is not open to challenge, particularly given the special position in which the complainant stood towards him. One must be careful in this regard because there is a possibility of double jeopardy arising out of the two offences, but nonetheless that was undoubtedly dealt with effectively by making the sentence on the assault count concurrent with that on the resisting authority count.

In the circumstances I can see no basis for criticising the six

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months sentence and, in any event, the sentence itself is of no real significance for so long as the sentence on the other count stands. I see no basis for giving leave to appeal.

MACKENZIE J: I agree.

HELMAN J: I agree.

DOWSETT J: The application is refused. Now what I think you should do, Mr Siddell, if you are interested in appealing in respect of the other two counts, you had better make sure you have got an appeal in the District Court.

APPLICANT: Thank you.

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