The Queen v Brown[1997] QCA 134

LEE J:  This is an application for leave to appeal against sentence.  The applicant was convicted on 14 February 1997 after a three day trial in the Magistrates Court at Townsville of one count of assault occasioning bodily harm in company and one count of common assault.  He was sentenced, on that date, to three months' imprisonment.  The ground relied upon is that the sentences were manifestly excessive in all of the circumstances.

The Stipendiary Magistrate did not specify whether the three months' imprisonment was a sentence for each offence, as stated in the Notice of Appeal, but his remarks show clearly that the sentence was intended to reflect the total punishment for what he regarded as two interrelated offences.  The maximum term of imprisonment for assault occasioning bodily harm in company is seven years' imprisonment, for common assault one year.

The applicant was born on 16 February 1970 and was aged 26 at the time.  He was married with four children.  On 31 August 1996 he was at the Bank Nightclub in Townsville with several companions.  A fight broke out in another group, the applicant and his co-defendant Henry Savage and a friend named John Ansey attempted to break up that fight.  Security staff arrived and the applicant and Savage were forcibly ejected from the nightclub by staff and by another person not employed by the club but who was apparently a patron.  That patron ejected the applicant by a choker hold.

After the applicant and Savage had been ejected they observed Ansey being assaulted on the landing and also observed him being thrown down the steps a short time thereafter.  This caused annoyance to the applicant and Savage.

Some 15 to 20 minutes later the applicant, Savage and some others approached one of the nightclub's bouncers, one Martin, who told them they could not re-enter the club.  Martin had not been involved in the earlier eviction of the applicant Savage or Ansey.  The applicant punched Martin in the face, at least twice.  Another bouncer D'Ilisio, who apparently had been involved in an altercation with a friend of the applicant earlier, was struck by the applicant near the left shoulder at the back. 

During this incident a number of other companions of the applicant, including Savage, were also involved in fighting D'Ilisio and Martin.  Savage also assaulted Martin, in respect of which he was convicted for common assault and given a community service order.  He had some criminal history but nothing since 1992.  Martin suffered a swollen lip and a bruised jaw as a result of the blows thrown by the applicant.  It was not in dispute that this constituted bodily harm.  The assault against Martin constituted the first count.  The assault occasioning bodily harm in company and the assault against D'Ilisio involved the second count, the common assault.

The Stipendiary Magistrate said that the offences committed in a public area were not uncommon and were serious.  He had the advantage of a video which showed a great deal of the relevant events.  He said that the assaults committed by the applicant were vicious; he regarded the offences as premeditated with the applicant taking, if not a leading role, a major role in initiating the assaults by himself and others committed on persons engaged in their lawful business, one of whom had not been involved in evicting any of them earlier.

The Magistrate concluded that the applicant had shown no remorse and that notwithstanding that the applicant felt a grievance for his early eviction and that of his two companions, he had no right to take the law into his own hands some 15 to 20 minutes later.  It appears that the applicant was, to some extent, affected by alcohol.

The applicant has a criminal history.  This commenced in 1987 when he was convicted and fined $150 for possession of a dangerous drug.  On 10 February 1989 he was convicted of living off the earnings of prostitution and placed on a recognisance for six months.  Of more direct relevance was a conviction in February 1995 for an aggravated assault on a female on 24 July 1994 for which he was placed on a $300 recognisance and a six months' good behaviour bond with no conviction recorded.  Also on 20 October 1995 he was convicted of common assault for which he was placed on a $300 recognisance and a one year good behaviour bond, again with no conviction recorded.

In October 1996, that is after the commission of the offences the subject of this application, he was convicted of unlawfully being in an enclosed yard in the night-time and fined.  The recognisance imposed on 20 October 1995 was estreated.  It does not appear that the fact that the Magistrate referred to this conviction in passing during his sentencing remarks caused him to impose any greater penalty than he would have otherwise, but it at least displays some insight into the character of the applicant.

The learned Magistrate stated that the applicant had failed to learn from the leniency previously given to him and particularly on the two earlier assaults.  He carefully considered all aspects of sentencing and matters relevant to the commission of the offences as well as the applicant's personal circumstances and the effect incarceration would have on the applicant and his family.  The Magistrate placed emphasis not only on punishment but on the need for deterrence to the applicant and others.

It was submitted on behalf of the respondent that the appropriate range for these offences was between three to 12 months' imprisonment and several authorities were placed before the Court by the respondent showing a range of sentences in the order of six to nine months some of which were for offences not greatly dissimilar to those committed in the circumstances of this particular case.

Counsel for the applicant submitted that a non custodial order such as a suspended sentence or, perhaps, a suspended sentence combined with a community based order, was appropriate having regard to the circumstances surrounding the commission of the offences which, while committed in circumstances not amounting to provocation, were not committed without some moral justification.  He submitted that the applicant was still upset and inflamed from what had occurred earlier and that this gave him some reasonable ground for doing what he did.

It was submitted that all previous offences by the applicant were minor in that no convictions were recorded and he had been placed on bonds.  Further, it was submitted that the applicant had suffered no significant or permanent injury. Counsel referred to various authorities in support of his application.  These have been referred to.  The first was R v. Eli Rowe, CA 149 of 1996, R v. Peter John Williamson, CA 352 of 1993 and the matter of Anderson v. Pollitt, CA 419 of 1996.

Those authorities, in my opinion, do not support the applicant's case.  The facts were entirely different.  The authorities referred to by the respondent demonstrate that the range of sentences for offences of this kind may be in the order of six to nine months.

Having considered all of the circumstances of the case, all the submissions and the authorities it cannot be said that the sentence imposed by the Magistrate was outside the limits of a sound sentencing discretion and, if anything, was on the moderate side.  In my opinion the application should be refused.

THE CHIEF JUSTICE:  I agree.

THOMAS J:  I would add something about the circumstances of this case.  It is not uncommon for non-custodial terms to be appropriate for assaults where no serious injury results.  However, it is difficult to make comparisons between cases where the circumstances vary so infinitely.  In the present case, some 15 to 20 minutes after an incident that had annoyed him, the applicant returned to a nightclub with approximately six or seven other persons, apparently intent upon a retaliatory raid.  The group ran up the front stairs of the nightclub led by the applicant.  In the result several members of security staff were assaulted and of course the present offences committed by the applicant.

The danger of escalation was considerable.  When the incident is looked at as a whole it seems to me to be a perfectly proper response for the Court to impose a custodial sentence notwithstanding that fortunately no serious physical harm was inflicted.  I accordingly agree with what Mr Justice Lee has said and proposed.

THE CHIEF JUSTICE:  The application then is refused.