R v Von Pein - [2002] QCA 385

[2002] QCA 385

COURT OF APPEAL

de JERSEY CJ
HELMAN J
JONES J

CA No 145 of 2002

THE QUEEN

ANDREW JOHN VON PEIN (Applicant)

BRISBANE

..DATE 25/09/2002

JUDGMENT

THE CHIEF JUSTICE: I will invite Justice Jones to deliver the first judgment.

JONES J: The applicant seeks leave to appeal against sentences imposed by the District Court after a trial, in respect of convictions on one count of assault occasioning bodily harm whilst armed, one count of common assault and two counts of a serious assault on a police officer, in the execution of the officer's duty. In respect of each conviction, the penalty was 18 months' imprisonment, with all sentences to be served concurrently.

The offences occurred at the applicant's residence on the evening of 19/20 April 2001. The applicant was then 36 years of age. The complainant in respect of the first two counts had, until August 2000, lived in a de facto relationship with the applicant for five to six years.

At the time of these incidents she was 29 years of age. The complainant had returned to the residence during the Easter school holidays to care for the applicant's two children, while the applicant was at work. The children were aged 12 years and 10 years.

During this period she slept in the applicant's bed. On the night in question, the applicant asked her to resume living with him, but the complainant refused. This led to an argument developing, which continued until the complainant went to bed, following the arrival of a friend of the applicant, with whom he commenced drinking. It appears from the evidence that a substantial amount of drink was taken by the applicant. It included beer and a half a cask of port wine.

After the friend left, the applicant went to bed. During the course of the evening, the complainant woke the applicant, to continue with the earlier argument. In the course of waking him, she shook him and it seems she also struck him a few times.

Once aroused in this way, the applicant launched into an episode of verbal and physical abuse of the complainant, which commenced with an assault of her in the bedroom, which then moved to the lounge room. The applicant struck the complainant with a belt on approximately six occasions, as a result of which she sustained contusions on her left leg.
That was the substance of the offence of the assault occasioning bodily harm whilst armed.

The offence of common assault occurred when the complainant went to a public telephone box to call the police. The applicant followed her, grabbed the complainant by the hair, pushed her face against the telephone box two or three times and then pulled her from the telephone box by the hair.

The two offences of serious assault occurred when police officers arrived at the applicant's home and sought to question him. The applicant initially slammed the door closed and then re-opened it. He took off the singlet…

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 Von Pein

Details

AGLC: R v Von Pein [2002] QCA 385
Case: [2002] QCA 385
Decision Date: 25/09/2002

CaseChat Overview and Summary

In the matter of R v Von Pein, the applicant, Andrew John Von Pein, sought leave to appeal against sentences imposed by the District Court following a trial where he was convicted of assault occasioning bodily harm whilst armed, common assault, and two counts of serious assault on a police officer. The District Court sentenced Von Pein to 18 months imprisonment for each count, with all sentences to run concurrently. The applicant's appeal was based on the argument that insufficient allowance was made for the complainant's actions that precipitated the assault, and that the penalty imposed was disproportionate to comparable decisions.

The Court of Appeal considered the circumstances of the offence and Von Pein's criminal history, which included prior acts of violence against the complainant and a police officer, as well as convictions for dishonesty and drug use. The Court found that the complainant's actions in waking Von Pein from sleep and continuing an argument that had previously ceased contributed to his violent response. The Court also noted that the actual injuries sustained in the assaults were minor, and the circumstances did not warrant the imposition of 18 months imprisonment. Taking into account Von Pein's stable employment, his role as the sole carer for his two children, and the complainant's wishes, the Court found that the penalty imposed was manifestly excessive without some qualification.

The Court of Appeal allowed the appeal and varied the sentence by ordering that the term of imprisonment be suspended after Von Pein had served six months, with an operational period of three years. The Court acknowledged the increase in penalties for assault and assault in circumstances of aggravation since the time of many of the cases referred to in the appeal. However, the Court found that the circumstances of this case warranted a more lenient penalty, taking into account the minor injuries sustained, the applicant's favourable work record, the wishes of the complainant, and the desirability of the applicant caring for his children.

Orders