R v Kent [2004] QCA 83

SUPREME COURT OF QUEENSLAND

CITATION: R v Kent [2004] QCA 83

PARTIES: R v KENT, John Vincent (applicant)

FILE NO/S: CA No 61 of 2004 / DC No 31 of 2004

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Toowoomba

DELIVERED EX TEMPORE ON: 23 March 2004

DELIVERED AT: Brisbane

HEARING DATE: 23 March 2004

JUDGES: Davies and Williams JJA and Philippides J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence dismissed

CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE -where applicant struck a woman in the face with a glass after he was punched by her - where applicant pleaded guilty to unlawfully wounding - where applicant was sentenced to 18 months imprisonment suspended after three months - whether sentence was manifestly excessive / R v Jasser [2004] QCA 14; CA No 277 of 2003, 9 February 2004, cited / R v Orreal [2002] QCA 547; CA No 296 of 2002, 19 December 2002, cited / R v Toohey [2001] QCA 149; CA No 351 of 2000, 19 April 2001, cited

COUNSEL: P B O'Neil for applicant / M J Copley for respondent

SOLICITORS: Connollys (Toowoomba) for applicant / Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: On 5 March this year the applicant was sentenced in the District Court to 18 months imprisonment suspended after three months, with an operational period of three years, for the offence of unlawful wounding on 7 November 2003. He had pleaded guilty to this offence on 3 March 2004. His plea of guilty was after an indication of remorse by the applicant and his co-operation with the police.

There was some difference between the versions which the learned sentencing judge heard from the prosecuting counsel and from the applicant's counsel as to the circumstances giving rise to the commission of this offence. As there was no attempt to resolve those differences, it is appropriate to take the version given by the applicant's counsel except to the extent that it may differ from the applicant's recorded interview.

The applicant was a regular visitor to the hotel in which the incident occurred. So, it seems, was the complainant, for he had met her a couple of times in the gaming room of the hotel. She seemed interested in him and he was, as it was described, chatty to her.

On the night and at the time in question, he, the applicant, was chatting to another woman and the complainant kept interrupting them telling him that she wanted him to speak to her. He was polite to her but told her that he did not want to speak to her and that he was speaking to the other person. Eventually when she kept interrupting him he told her to leave him alone.

On several occasions after that the complainant told the barmaid in the hotel that the applicant had ruined her evening. On the second of those occasions or perhaps it was on a later occasion, she told the barmaid that she had a good mind to go and slap his face. The barmaid advised her against this. Notwithstanding that advice, the complainant went up to the applicant and punched him with full force with her closed fist. The blow struck him on the nose which caused it to bleed quite heavily. He was also stunned by the blow. She then walked away. He immediately went after her and grabbed hold of her asking why she hit him. He then went to throw the contents of his glass into her face, but during the course of this movement he decided to deliberately strike her in the face. He did so; the glass broke on impact, and it cut her on the face.

The complainant suffered no serious injury. She made no complaint against the applicant and she filed no victim impact statement. The applicant, who is 48 years of age, has only a minor criminal record in Victoria resulting only in fines. He has a good work record and produced favourable references from apparently responsible citizens.

There is some merit in the contention by the applicant's counsel that his offence was a sudden and hot-blooded reaction to what was plainly an unprovoked and painful assault on him, and if this was some other offence the applicant may have had a defence of provocation. However, he did chase after the complainant in order to deliver the blow, which he did.

The circumstances however of the striking of the quite severe blow by the complainant on him and the fairly close proximity of that to the commission of the subject offence is of some relevance in mitigation of the sentence which might otherwise have been imposed. The problem for the applicant, it seems to me, unfortunately is that his reaction included intentionally striking the complainant with a glass in his hand in circumstances where the glass was likely to shatter on impact.

Cases of this kind have been viewed seriously by this Court because of the likely serious consequences of such a blow and because of the prevalence of incidents of this kind. In most cases of this kind, this Court has required a sentence of actual imprisonment be served. Many of the relevant cases are reviewed in the decision of this Court in Toohey [2001] QCA 149. More recent examples are Orreal [2002] QCA 547, and Jasser [2004] QCA 14, and as Justice Williams pointed out during the course of argument, the circumstances in Smart CA No 86 of 1999 bear some similarity to this case.

I should say that counsel for the applicant did not attack the head sentence of 18 months imprisonment but contended that it should have been suspended immediately.

The applicant would be entitled to have that sentence wholly suspended instead of after three months only if his circumstances were so special as to take the case out of the ordinary. By ordinary, I mean those cases in which this Court has held that a period of actual custody must be served for offences of this kind. I do not think that his circumstances do that. He is a mature man of 48 years with a generally good work record and personal record. No doubt that, together with his remorse, co-operation and guilty plea, persuaded his Honour to suspend the sentence after three months, but there are no special circumstances which would otherwise require further suspension than that.

I would accordingly dismiss the application.

WILLIAMS JA: I agree.

PHILIPPIDES J: I also agree.

DAVIES JA: The application is dismissed.