Hofmeir v Brewster[1997] QCA 68

WHITE J:  The applicant seeks leave to appeal against sentence which was imposed upon him in the Magistrates Court at Ipswich on 19 November 1996 after he pleaded guilty to one count of assault occasioning bodily harm.

The Magistrate imposed a sentence of nine months' imprisonment suspended after four months with an operational period of three years.  He ordered the applicant to pay compensation in the sum of $1500 to the complainant within 12 months; in default three months' imprisonment. 

The applicant maintains that in all the circumstances the sentence was manifestly excessive.  The applicant is aged 33 years with a minor prior history of wilful damage to property which occurred on 6 February 1994 and for which he was fined $200 with no conviction recorded and for which he was ordered to pay the sum $2,999.64 by way of compensation.

The applicant and the complainant had resided in a de facto relationship for some nine and a half years.  They had separated some weeks prior to the incident giving rise to this application for leave to appeal.  On that day the complainant visited the applicant's residence to collect their 22 month old son who had been visiting the applicant.

A discussion commenced between the applicant and the complainant about their relationship and when the complainant indicated she did not wish the relationship to continue the applicant became upset and threatened her.  The complainant hit the applicant with a plastic bottle.  The applicant pushed the complainant in the chest and she tried to back away.  She fell on to a lounge as she backed away and the applicant commenced to punch her with a closed fist to the face.  She was struck a number of times then fell to the floor and curled up to protect herself.

The applicant continued to punch at her several times and she protected herself by raising her arms.  He then realised the enormity of what he had done and desisted.  He then gave the complainant assistance, rang the ambulance which was unable to attend immediately so he took her to the hospital and the police were called there.  He cooperated with the police.

The complainant suffered quite severe injuries that included two black eyes, a swollen lip, a broken nose, extensive bruising to the face, arms and chest and a hairline fracture to the jaw.  She suffered severe pain for a week or so and had difficulty eating normally for several weeks thereafter.

The learned stipendiary Magistrate noted the applicant's early plea of guilty, his remorse which was demonstrated by the assistance which he rendered to the complainant and that he had no previous criminal history which included violence.  But he also commented on the extent of the injury caused and the prolonged nature of the assault including that the applicant continued the assault after the complainant had fallen to the floor.

He also commented on the need to impose a sentence which might be a deterrent to others since he observed that there was a prevalence of this kind of offence in the community.

It is submitted, on behalf of the applicant, that no time should have been ordered to have been spent actually in custody and bearing in mind that the applicant who is now on bail pending the outcome of this application for leave to appeal has spent seven weeks and three days in custody that that is sufficient actual punishment.

Mr T Martin, who appears on behalf of the applicant, referred to the three cases of Reynolds and Hobson, CA 219 of 1994; R v. Hodges, CA 552 of 1994; and Anderson and Pollitt, CA 419 of 1996.  In the case of Reynolds and Hobson, the attack was much less serious than that which occurred here and on appeal the sentence of 12 months with a recommendation for parole after six months was suspended after three months.  In Hodges, the sentence imposed was six weeks and probation.  The injuries were not as serious as here, both parties had been drinking and both were involved initially.  In Anderson and Pollitt, there were several assaults, one including a choking assault.  In that case a sentence of four months was imposed. 

Now, those cases have various factors about them which could be utilised for distinguishing purposes, but in my view, none of them reveal the nature and the ferocity of the injuries that were sustained by the complainant here.

However, when consideration is given to the total sentence imposed upon the applicant, namely nine months imprisonment, suspended after four months, with an operational period of three years, together with the amount of compensation, that does seem to me to be on the high side.  There are disadvantages in having a suspended sentence since the prisoner is not then eligible for a gradated form of release, such as home detention and so on, but the four months must be actually served in prison.

When that is considered in association with the three years operational period, the penalty does appear to be outside the permissible range.

It seems that the learned Magistrate quite rightly recognised that this was a ferocious and cowardly attack and was sustained, but he might have given more weight to factors which were favourable to the applicant, including a lack of previous convictions for violence, and that he immediately desisted of his own accord and rendered what assistance he could to the complainant.

In my view, it seems that the appropriate sentence would be to remove the order for suspended sentence and let the term of imprisonment of nine months remain.  Otherwise, I would not interfere with the orders.

DAVIES JA:  I agree.

McPHERSON JA:  I also agree.

DAVIES JA:  The application is granted.  The appeal is allowed to the extent only of removing that part of the order suspending the sentence after four months for an operational period of three years.

MR CAMPBELL:  Could I ask that a warrant issue for his arrest?

DAVIES JA:  Do you want it to lie in the Registry?

MR CAMPBELL:  I ask that it lie in the Registry for seven days.

DAVIES JA:  You don't object to that?

MR MARTIN:  No, Your Honour.

DAVIES JA:  I so order.