R v Starr

[2001] QCA 514

[2001] QCA 514

COURT OF APPEAL

McPHERSON JA
MACKENZIE J
CHESTERMAN J

CA No 282 of 2001

THE QUEEN

v.

PETER JAMES STARR  Applicant

BRISBANE

..DATE 16/11/2001

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal in this matter was convicted on his own plea of guilty in the District Court at Beenleigh of one count of assault occasioning bodily harm.  He was ordered to pay a fine of $1000, and the Judge also ordered a conviction to be recorded.

The grounds of his application are that the sentence was manifestly excessive in that a conviction ought not to have been recorded.  In submissions before us, he has made it clear that the reason for his concern about this matter is that he fears he may be at a disadvantage in the labour market.

The circumstances of the offence can be summarised as follows. On 19 February 2000, the complainant went to the Awl Cove Restaurant that was conducted by the applicant and his partner at Canungra.  The complainant and the applicant had been friends before this occasion.  On the night of the offence, the complainant and his girlfriend were sitting having a meal or something to drink in the restaurant when they were joined by the applicant, his partner and another woman.  For some reason, the two men began to argue.  The applicant took offence at something that was said by the complainant and slapped him about the face.  The complainant attempted to placate the applicant, telling him to calm down, and then backing away. 

However, the applicant followed the complainant outside the restaurant where he punched him around the head causing the complainant to lose balance and fall to the ground.  While he was on the ground, the applicant kicked him at least once in the chest area.  The result was a broken rib which penetrated the complainant's lung. 

The complainant also sustained bruising to his face and some abrasions on his legs after falling to the ground.  He was in hospital for four days and it is a matter that was recognised by the Judge that injuries of this kind - namely, broken rib and injured lung - are painful. 

The applicant is about 44 years of age.  He has no prior criminal record, which is in his favour.  By trade, he is a chef, who was unemployed at the time of sentence.  He had previously owned the Awl Cove Restaurant to which I have referred, but he no longer does so.  He has two teenage children, one of whom was living with him at the time of sentence.

In my view, the sentence was an extremely modest one.  Incidents of this kind commonly attract at least a short period of imprisonment.  The Judge was evidently inclined to spare the applicant that experience, he being, from what one can observe and see, a respectable sort of person.  But it seems to me to be most optimistic to imagine that one should escape the recording of a conviction in circumstances in which one has inflicted as much injury and with such persistence as is seen in this case.

In all events, it is in my view certainly not a case in which this Court should interfere with the discretion of the sentencing Judge at first instance and upset the decision to record the conviction.  I would therefore refuse the application for leave to appeal against sentence.

MACKENZIE J:  I agree.  The question of the effect on the prospects of employment was clearly before the learned sentencing Judge and it was clearly within the proper exercise of his discretion to impose a conviction on the facts before him.

CHESTERMAN J:  I also agree.

McPHERSON JA:  The order of the Court is that the application for leave to appeal is refused.

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