R v Walden

[2002] QCA 66

[2002] QCA 66

COURT OF APPEAL

DAVIES JA
THOMAS JA
MUIR J

CA No 365 of 2001

THE QUEEN

v.

ALLEN SPENCER WALDEN  Applicant

BRISBANE

..DATE 11/03/2002

JUDGMENT

DAVIES JA:  I'll ask Mr Justice Muir to deliver his reasons

first.

MUIR J:  Consequent on the applicant's pleas of guilty to one count of stealing, one count of assault occasioning bodily harm whilst armed and one count of being in premises with intent he was sentenced in the District Court at Townsville on 12 December 2001 to terms of imprisonment of six months, 12 months and three months respectively.  The sentences were ordered to be served concurrently. 

The learned sentencing Judge also ordered that the applicant serve the balance of the outstanding term of a sentence of 18 months' imprisonment, suspended after nine months, imposed on 2 December 1999 for an offence of occasioning bodily harm when armed and in company.

The applicant seeks leave to appeal on the grounds that the sentence imposed is manifestly excessive.  It is contended that although a sentence of 12 months for the assault taken in isolation may not have been susceptible to challenge it became manifestly excessive when made cumulative on the nine month term of the re-activated suspended sentence.

On 1 September 2000, the date of the assault, the applicant was 22 years of age.  He had an extensive criminal history, which included convictions for breaking and entering and stealing, stealing, wilful and unlawful damage to property and escape from lawful custody.  The applicant also had a conviction in 1997 for an assault occasioning bodily harm.
The offence for which the applicant was ordered in December 1999 to serve a suspended sentence arose out of an attack on a person by the applicant and three others. 

The applicant was armed with a baseball bat during the attack, which took place whilst he was on probation.  The other two offences for which the applicant was sentenced on 12 December 2001 were of a relatively trivial nature.  One concerned the theft of Scratch-it casket tickets with a value of $26, and the other involved the applicant going behind the counter at the Palm Island Hospital after being told not to do so.  The learned Crown Prosecutor described these offences as "really nuisance matters".

The events surrounding the assault, so far as one can glean them from the rather sketchy material in the record, are as follows.  The applicant went to the Palm Island Hospital complaining of a broken hand.  The complainant, a male nurse at the hospital directed him to leave after signs of aggression were manifested.  The applicant became more aggressive. 

The complainant followed him out of the hospital in order to ensure his departure, whereupon the applicant commenced throwing stones.  The complainant then went to enter the Police Station which was nearby and was hit in the head by a stone thrown by the applicant, sustaining a three centimetre long laceration to the scalp.  There is no evidence of the size of the stone and thus of its potential to cause more serious injury. 

The applicant's conduct was thus not spontaneous in nature.  His violence was directed towards the nurse performing his duties and the exposure of persons such as the complainant to violence could be expected to make it more difficult to attract and keep suitable hospital staff in a remote location such as Palm Island. 

Moreover, the assault was perpetrated by a person with an extensive criminal history during the operational period of a suspended sentence imposed for an earlier serious assault.  In those circumstances it was appropriate for regard to be had to both personal and public deterrence in sentencing.

Having regard to those matters a cumulative sentence was appropriate and a combined term of 21 months cannot be considered manifestly excessive as "crushing" or as offending the totality principle.  The learned sentencing Judge took into account the totality principle, observing that the sentence imposed would be reduced by reference to the fact that it was cumulative.  He also had regard to the applicant's plea of guilty.  I would dismiss the application.

DAVIES JA:  I agree.
THOMAS JA:  I agree.

DAVIES JA:  The application is dismissed.

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