R v White - [1992] QCA 419

COURT OF APPEAL [1992] QCA 419

DAVIES JA
McPHERSON JA

de JERSEY J

CA NO. 244 OF 1992
THE QUEEN
v.

PAUL BERNARD WHITE Appellant

CA NO. 263 OF 1992

GARTH NOBLE KIRKWOOD and

RAYMOND IAN RAINE Respondents

and

PAUL BERNARD WHITE Appellant

BRISBANE
... DATE 19/10/92
JUDGMENT

McPHERSON JA: These are applications for leave to appeal against sentences imposed, two of them in the District Court of Bundaberg, and the others in the Magistrates Court of Bundaberg.

In respect of the latter, we have already extended the time

within which to make the application for leave to appeal.

The applicant is Paul Bernard White. He was a man of some 29 years of age, who was driving his vehicle in Bundaberg one day

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when the police attempted to stop him. They were carrying out standard breathalyser procedures of motorists, and were attempting to apply that procedure to him. The applicant did not stop. He was pursued, and eventually was apprehended. It was evident that he was quite substantially intoxicated and he was, in due course, dealt with for the offence of driving in that condition.

To remain, however, with the matter before us now, when the applicant was placed in the police van, he struggled, had to be handcuffed, and proceeded to kick the back of the van so as to bend or, to some extent, buckle it. That represents one of the two charges, namely the charge of wilful damage, which was brought against him in the District Court of Bundaberg.

The other charge in the District Court was of a similar kind, that is to say, it was wilful damage constituted in this instance by the applicant's "stomping" on a police typewriter when the police were attempting to deal with him in the police station.

In respect of those two offences, the District Court Judge before whom the matter came on pleas of guilty, imposed terms of 15 months imprisonment to be served concurrently.

The offences dealt with in the Magistrates Court were charges of

assault committed in each case against the members of the police force who were attempting to restrain the applicant after he had been conveyed to the police station. At the police station he continued to behave violently, and had to be carried to a cell. There he spat in the face of Constable Kirkwood, which gave rise to count 1 before the Magistrate.

He punched another police officer, whose name was Jensen, and when it became necessary to bring the applicant from the cell in order to have a blood sample taken, he punched Sergeant Raine - that represented count 2 - and he had to be handcuffed again. He also, it is said, spat in Raine's face and told him he hoped that Raine would get AIDS. He threatened to bite Raine, he attempted to strike him in the genitals, but Raine avoided the blow.…

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 White

Details

AGLC: R v White [1992] QCA 419
Case: [1992] QCA 419
Decision Date: 19/10/1992

CaseChat Overview and Summary

In the case of The Queen v. Paul Bernard White, the appellant sought leave to appeal against the sentences imposed for various charges of assault, resisting police, and wilful damage, which were heard in both the District Court and the Magistrates Court of Bundaberg. The appellant, Paul Bernard White, was found guilty of driving while intoxicated, resisting arrest, and assaulting police officers after being apprehended for the former offence. The primary legal issue before the Court of Appeal was whether the aggregate sentence of 27 months imprisonment was manifestly excessive. The appellant's counsel argued that the severity of the sentence was disproportionate to the nature of the offences, particularly considering the appellant's heavily intoxicated state at the time of the incidents.

The Court of Appeal considered several factors in determining the appropriate sentence, including the appellant's criminal history, his conduct during the incidents, and the impact of his intoxication. The judges acknowledged that while the assaults on the police officers were serious, the sentences imposed for the wilful damage offences in the District Court appeared excessive. Consequently, the Court decided to allow the appeals in respect of the District Court sentences and reduce the terms of imprisonment for those offences from 15 months to six months each. The sentences for the assault charges in the Magistrates Court were upheld as appropriate, resulting in a new aggregate sentence of 18 months imprisonment.

In conclusion, the Court of Appeal allowed the appeals against the sentences for the wilful damage charges, substituting the original sentences with terms of six months imprisonment each. The sentences for the assault charges were left unchanged, leading to a revised effective sentence of 18 months imprisonment.

Orders