R v Ward - [1998] QCA 329

COURT OF APPEAL

[1998] QCA 329

McMURDO P
McPHERSON JA
SHEPHERDSON J

CA No 245 of 1998

THE QUEEN

THOMAS DARRYL WARD Applicant/Appellant

BRISBANE

..DATE 18/09/98

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty on 22 July 1998 part-way through a trial to one charge of assault occasioning bodily harm committed upon Susan Joy Dooley. The complainant and an eye-witness had already given evidence and been

cross-examined. The applicant was sentenced to nine months' imprisonment, suspended after three months, for three years. He claims the sentence was manifestly excessive in respect of him serving a term in prison.

He is 49 years of age. He and the complainant have lived together for about seven years, separating on 31 March 1997. The offence occurred on 26 August 1997. There had been prior correspondence from the applicant to the complainant requesting return of property claimed by him to which the complainant had not responded.

The complainant was visiting a neighbour of the applicant who was a friend. As she left the neighbour's residence the applicant confronted her at her car, demanding the return of the property claimed by him. The complainant tried to get into her car but the applicant pushed her against the vehicle and struck her several blows to her hands and arms, and one or more on her face.

In her statement she described these blows as slaps, but in evidence said they were neither slaps nor punches. She said, "Mr Ward is trained in martial arts and I would say it would be close to a martial arts action." She suffered a swollen upper right lip, bruising to three fingers of the right hand, bruising to her right elbow, and soreness of the arm and chest.

She suffered from a persistent back injury which flared as a result of the assault. She had swelling to the right side of her back. When she was pushed, her lower right side of the spine hit the car. Her sunglasses were knocked from her face and she put her hands up to protect her face.

There is no suggestion of any history of prior violence by the applicant to the complainant. The applicant was aware the complainant had suffered prior disc damage to her back and had nursed her. He had demanded the return of a walking-stick which was in the back of the car and which had been used by her in the past, and which had been a gift from him. She refused.

At a time during their relationship, her back injury had been such that she was confined to bed for three months, receiving twice daily injections for pain. Following the assault she required additional medication, stronger doses of medication in her spine injections, and extra sleeping tablets to help her sleep.

It was unclear from the re-examination of the complainant as to what portion of her current back pain was attributable to the assault, or for how long there was a flare-up of pain attributable to the…

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 Ward

Details

AGLC: R v Ward [1998] QCA 329
Case: [1998] QCA 329
Decision Date: 18/09/1998

CaseChat Overview and Summary

In the case of R v Ward, the applicant appealed against the sentence imposed by the lower court, which had sentenced him to nine months imprisonment, suspended after serving three months, for a term of three years. The applicant, Thomas Darryl Ward, pleaded guilty to one charge of assault occasioning bodily harm committed against Susan Joy Dooley, who had suffered injuries including a swollen lip, bruising to her hands and arms, and exacerbated back pain. The Court of Appeal was required to determine whether the sentence was manifestly excessive and whether it should be varied.

The Court of Appeal found that the sentencing judge's comments indicated a misapplication of the law, particularly in mischaracterising the offence as one of grievous bodily harm. The Court considered the applicant's antecedents, age, and character, noting that he had no prior convictions and that the incident appeared to be isolated. The Court also highlighted the seriousness of the offence, particularly the applicant's awareness of the complainant's vulnerability due to her disability. However, the Court concluded that the sentence imposed should be varied to reflect the appropriate punishment while considering the applicant's background and the nature of the offence. The Court varied the sentence to be suspended forthwith, with a conviction recorded if necessary.

The final orders of the Court were that the application for leave to appeal against the sentence was granted, and the sentence was varied to be suspended forthwith. The Court deemed the five days the applicant had already served as time served under the sentence.

Orders