R v Pein [2002] QCA 385

Court of Appeal (Qld)|2002-09-25|Before: Jones J, Jersey CJ, Helman J

The applicant's reaction to the police visit with intemperate and threatening, but the actual assault in which the police officer sustained the minor injury appears to me to have been caused by the applicant's wish to avoid being sprayed with the capsicum chemical.

Without in any way diminishing the applicant's conduct, the fact remains that the injuries sustained in respect of each of the assaults was quite minor and the circumstances of each assault did not, in my view, warrant the imposition of 18 months' imprisonment, despite the unfortunate prior criminal record of the applicant. Given that his Honour was looking at the totality of the conduct in deciding on the penalty and his regard to - and even with regard to his past criminal record, the penalty, without providing some earlier termination, appears to me to be excessive.

I express this view conscious of the fact that since the time of many of the decisions to which we have been referred there have been an increase in the penalties provided for the offence of assault and assault in circumstances of aggravation.

Nevertheless, in my view, the application for leave should be granted, the appeal allowed and the sentence varied by ordering that the term of imprisonment be suspended after the applicant has served six months' imprisonment, with an operational period of three years.

THE CHIEF JUSTICE: I agree. Ms McGinness, who appeared for the applicant, submitted among other things, that the pain suffered by the applicant upon the administration of the capsicum spray should in some way be brought to account in the sentencing process.

I would like to say for my part that I think that to be untenable simply because the police officer was in so doing acting in accordance with the law.

THE CHIEF JUSTICE: The order is as indicated by Justice Jones.

More recently, in The Queen v. Pierpont, [2001] QCA 493, the offender had assaulted his de facto wife in the course of an argument over custody of their child. The complainant struck the offender and he retaliated with a degree of violence, which included throwing her to the floor, partially choking her, punching her and causing other physical injuries.

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