Washington v Bradley

[2007] QDC 111

DISTRICT COURT OF QUEENSLAND

CITATION:	Washington v Bradley [2007] QDC 111
PARTIES:	FRANKLIN WARREN WASHINGTON
Appellant V
SENIOR CONSTABLE R BRADLEY
Respondent
FILE NO/S:	Toowoomba Appeal 19/2006
DIVISION:	Appellate
PROCEEDING:	Appeal under s 222, Justices Act 1886
ORIGINATING  COURT:	Magistrates Court of Queensland, Toowoomba
DELIVERED ON:	19 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	14 June 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	APPEAL – APPEAL AGAINST SENTENCE – CONVICTION FOR ASSAULT OCCASIONING BODILY HARM – SERIOUS CRIMINAL HISTORY – SENTENCE OF 18 MONTHS, SUSPENDED AFTER 6 MONTHS – whether sentencing discretion miscarried – whether sentencing court fell into error – relevant factors
Cases considered: R v Payne [1997] QCA 219 R v Taylor [2000] QCA 311 R v Jones [2003] QCA 474
COUNSEL:	R Davies for appellant M Pollock, Solicitor, for respondent
SOLICITORS:	David Burns Lawyers for appellant Director of Public Prosecutions for respondent

1. This is an appeal against a sentence imposed upon the appellant after he pleaded guilty in Toowoomba Magistrates Court on 10 November 2006 to one count of assault causing bodily harm. He was sentenced, on 13 November 2006, to 18 months imprisonment with a fixed parole date of 6 April 2007. In effect, then, he was to serve six months imprisonment, although a declaration of 42 days pre-sentence custody was made. He has, I was informed, satisfactorily served his term of custody and is presently on parole release.

2. The appeal is brought on the ground that the sentence was manifestly excessive and that the learned Magistrate fell into error during the sentencing process; and, that the sentence should be reduced from 18 to 12 months.

3. The appellant was born 15 January 1977 and is now 30. He has a significant criminal history, including convictions for assault occasioning bodily harm in 1994, and manslaughter in 1999 for which he was sentenced to seven years. He had only been back in the community for approximately 12 months, following that sentence, when this offence occurred.

4. Detailed submissions about his limited education and troubled upbringing, and history of drug abuse were placed before the sentencing court. The first ground of complaint is that the learned Magistrate failed to mention these elements of the appellant’s background in his sentencing remarks. The submissions about these matters were, however, lengthy and very detailed (occupying four pages of transcript) and it is simply inconceivable they were not within the mind of the learned Magistrate when he came to sentence.

5. The second complaint is that the learned magistrate failed to mention the “... significant fact that (the appellant) had been struck first by the complainant”. The transcript shows, however, at two places that submissions were made to the effect that the complainant had tried to push the appellant off another person whom he was assaulting, and that the appellant himself felt “… some sort of force applied to the side of his face”.[1]

   [1]            Transcript of proceedings, 10 November 2006, T 5.52.

6. The assertion has to be…