Scoffin/Leadbetter v Hearn

[1997] QCA 123

[1997] QCA 123

COURT OF APPEAL

DAVIES JA
McPHERSON JA
MACKENZIE J

CA No 520 of 1996

SCOFFIN/LEADBETTER

v.

TREVOR JAMES HEARN

BRISBANE

..DATE 15/04/97

JUDGMENT

McPHERSON JA:  This applicant for leave to appeal was sentenced in the Toowoomba Magistrates Court to imprisonment for nine months for an assault occasioning bodily harm committed on 1 September 1996.

On the occasion in question, he was a passenger in the rear seat of a motor car travelling from Cunnamulla to Oakey.  The complainant, a woman of some 37 years of age, was the other passenger in the rear seat of the vehicle in which the front seats were occupied by the driver and another woman passenger.

According to the complainant, she asked the applicant to move to his side of the seat, whereupon he punched her in the right eye and began yelling abuse at her and the other female passenger.  The complainant, needless to say, suffered pain, swelling and abrasion to or in the area of her eye, for which some minor medical treatment was sought and obtained.

The applicant's version of events as recounted by his solicitor at the hearing was that he asked the driver to stop the car so that he could go to the toilet; but the driver refused to do so, saying the applicant must wait until they reach St George.  At that point, it was claimed, the complainant "butted in" and harangued both the driver and the applicant about their excessive intake of alcohol, whereupon the applicant hit her in the face.

On either version of events, the assault was sudden, quite unprovoked and unexpected.  There is little doubt that the assault was induced by the applicant's consumption of alcohol to excess.

He is a 32-year-old man, who unfortunately has an almost unending record of prior convictions extending back to 1981.  He has committed offences or sustained convictions in every year since 1981, among them being convictions for wilful destruction of property (which appears in his record with remarkable frequency), along with various assaults, offences of dishonesty, use of obscene language and disorderly conduct.

Counsel for the Crown, who has made an examination of the record and attempted to count occasions and sentences, submitted that we would find there that the applicant had served 12 previous prison sentences and had been convicted of 16 prior offences of violence to the person.  There is no reason to doubt the accuracy of that assessment, although carrying it out is, having regard to the length of the record, a rather tedious process. 

Various sentencing options have already been tried in the case of the applicant, but without success.  He has been fined, ordered to do community service work, disqualified from driving, sentenced to periods of imprisonment which he has served, undergone probation and so on. 

As recently as 1995, I notice, he was sentenced to imprisonment for 18 months for wilfully setting fire to a motor vehicle.  He was on probation at the time he committed the offence in respect of which the sentence is now brought before us.
There is every reason for thinking that his criminal activities are closely related to alcohol abuse and, as I have said, he had been drinking to excess before the particular offence was committed on this occasion.

In the catalogue of assaults that come before this Court, the particular offence committed by the applicant is nowhere near as serious as some we are accustomed to; but the victim on this occasion was an unoffending and unsuspecting woman, and it is difficult to see any basis on which the applicant could have been led to commit the offence except possibly his apparent propensity for violence when drunk.

If sent to prison, the applicant will lose his current employment as a meatworker.  That is greatly to be regretted, as is the fact that there is some evidence that he has been responding to probation on this occasion; but it plainly is his record that is against him and, on that basis alone, I do not think it possible to regard the sentence imposed on this occasion as being excessive in the circumstances.

In the result I would refuse the application for leave to appeal.

DAVIES JA:  I agree.

MACKENZIE J:  I agree.

McPHERSON JA:  The application for leave to appeal is refused.
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