Reynolds v Hobson

[1994] QCA 401

[1994] QCA 401

COURT OF APPEAL

DAVIES JA PINCUS JA AMBROSE J

CA No 219 of 1994
A.O.B. REYNOLDS
and

DESMOND BEN HOBSON	Applicant
BRISBANE ..DATE 23/08/94
JUDGMENT
230894 M/T COA94/246

PINCUS JA: This is an application for leave to appeal against sentence. The applicant was convicted of an offence of unlawfully assaulting one Lillian Kris and thereby doing her bodily harm and at the time of the commission of the offence being armed with an offensive weapon, namely a chair. He was also convicted of a similar offence committed on the same day, the offensive weapon in that case being a knife. The applicant pleaded guilty in each case.

The information which the Court has as to the circumstances in which the offences were committed is a little scanty and it is not absolutely clear how seriously injured the victim was.

According to the information placed before the Magistrate by the Prosecutor, Lillian Kris, who was living with the applicant, went next door to have a cup of coffee. Whilst she was there, the applicant also went next door, to see her. He became angry, picked up a butter knife, and hit her over the back of the neck apparently with the knife's handle. Then the lady went outside. She went back into the flat a little later and this time the applicant hit her again, with a chair. The Prosecutor said in the Magistrates Court that the applicant hit her on the right hand, causing a large laceration and that a large amount of blood was visible on her hand and on the floor of the flat. According to an affidavit placed before the Court on behalf of the applicant, the solicitor who appeared in the Magistrates Court, Mr Matthew McLaughlin, told the Court with respect to the second offence that the cut

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which the victim suffered was not serious enough to require
sutures.

The applicant is a man born on 2 November 1957 and he was thus 37 years at the time of the offence. The learned Stipendiary Magistrate, Mr Wessling, decided to sentence the applicant to imprisonment of one year in respect of each of the offences, with a recommendation for parole after six months. A domestic violence order was also made in relation to the offences, lasting two years. Counsel for the applicant today has referred us to a number of decisions of a similar character and suggested that the penalty of one year's imprisonment was beyond the range at which one would arrive if the discretion were exercised properly.

In my view, the submission is made out. The offence, although by no means a minor one, is certainly not as serious as many of the same type which we see in this Court. The applicant pleaded guilty early and, quite importantly as it seems to me, he has no offence of violence in his record for some considerable time past. His criminal record shows that he committed a number of offences until he was about 23. Two of them were offences of violence, one an aggravated assault of a sexual nature for which he received three months' imprisonment and another one an assault occasioning bodily harm in 1981, for which he was fined. Since then, there is no recorded offence, other than for unlawful possession of a dangerous drug, in 1991.

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One therefore has a person who, although he has been to prison allowance being made for his plea of guilty.

as a youth, has not committed any offence of a similar
character for a long time. He has been given 12 months'
imprisonment with, as is implicit in the argument of

The penalty having been imposed on 13 May 1994, the applicant has now served more than three months of it and it appears to me that he has been in prison long enough for this offence.

The problem, as I see it, is whether or not to replace the sentence which the Magistrate imposed by one which would involve supervision of the applicant. It appears to me that in view of the age of the applicant (he is a mature man) and the fact that he does not seem to be currently a persistent offender, it would be sufficient to suspend the sentence.

The order which I would make is to allow the appeal and, in respect of each of the offences, to replace the recommendation for parole by an order that the sentence of imprisonment imposed be suspended after three months. I would also order under section 144 subsection 5 of the Penalties and Sentences Act that the operational period for the purpose of that provision is 12 months. The result of that order, if it were made, would be that the applicant would be entitled to be released forthwith.

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230894 M/T COA94/246

DAVIES JA: I agree.

AMBROSE J: I agree also.

DAVIES JA: The order is as indicated by Mr Justice Pincus.

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JUDGMENT