The Queen v Smallwood[1997] QCA 91

COURT OF APPEAL

DAVIES JA

McPHERSON JA

MACKENZIE JA

CA No 30 of 1997

THE QUEEN

v.

DAVID ARCHIE SMALLWOOD

BRISBANE

DATE 15/04/97

JUDGMENT

McPHERSON JA:  This is an appeal by the Attorney-General directed to inadequacy of the sentence imposed on the respondent Smallwood in the Magistrates Court at Townsville for an offence, to which he pleaded guilty, of assault occasioning bodily harm committed on the complainant Patrick Whelan in the early morning of 24 August 1996.

The sentence imposed was two years probation and 200 hours community service. The applicant was also ordered to pay compensation of $200 to the complainant. The complainant was privately employed as a security officer at a taxi rank outside The Bank nightclub in Flinders Street, Townsville.

When the nightclub closed at 5.00 a.m. on the day in question a number of people gathered at the taxi rank at which the complainant was on duty. A scuffle broke out among some of them and the complainant intervened to try to stop it. In the course of doing so some seven people set upon him and began punching and kicking him.

One of those assailants was the respondent Smallwood. After the complainant had been knocked down and then dragged to his feet again, the respondent clenched his fist and delivered an upper cut to the complainant's head. He then grabbed the complainant by the shoulders and smashed his face with his knee. Then, while the complainant was being held by two other men named Cassidy, the respondent kicked the complainant in the head. In doing so he appeared to step back and swing his foot backward and forward as if taking aim and kicking a football. The complainant collapsed behind a waiting taxi where he was kicked by someone else, before he succeeded in getting away. These events were recorded by a security video camera at the scene. The film was viewed by the Magistrate at the sentencing hearing and in this Court we have seen it too.

There is no doubt that the assaults committed by the respondent made this a serious offence of its kind. He punched, kneed and deliberately kicked the complainant in the face or head and he did so in the company of some six others, some of whom assisted him and who also joined in the assault. He used his fist, knee or foot to deliver a blow while the complainant was being held, and so was unable to defend himself or to escape from the beating he was receiving.

The assault by the respondent was not a single punch delivered in the passion of rage but a series of callously aimed and violent attacks on the most vulnerable part of the human anatomy, meaning by that, the head.

There is no suggestion that the respondent's conduct was justified or inspired by anything in the nature of provocation on the part of the complainant. The complainant was, in fact, most fortunate in not sustaining any permanent injury from the extensive blows inflicted on him; but he was left with a swollen, bruised and painful face and was away from work for at least a week.

In circumstances like those it requires some exceptional fact or feature to avert the normal consequence of conduct of that character, which is a prison sentence of appropriate duration. In deciding not to impose such a sentence the Magistrate relied on the following matters as justifying the non-custodial orders which he made. First, the respondent was, according to reports obtained from a community correction officer, a suitable candidate for probation and community service. He was a 25-year-old father of four, whose wife had deserted him and their four children aged eight, seven, five and three leaving him to care for them alone. He had an excellent work record until last year when his wife left him and he had to forego employment with Queensland Railways, where he had been working for two and a half years, in order to care for his children, of whom only two are of school age.

On the other hand, the respondent did have  a prior conviction for an offence of assault occasioning bodily harm in 1993 arising out of an incident that took place in late 1992 for which the applicant was sentenced to undergo probation for 12 months. In the course of that probation he evidently breached the terms of it, because he was convicted of doing so in about April 1993.

His underlying problem, so far as one can gather from the material before us, either generally or on the occasion of the offence with which we are concerned here has been excessive drinking. The question for the Court on appeal in a case like this is, I consider, to decide whether factors personal to the respondent and his children are so compelling as to outweigh what I have said is the normal or expected consequence of committing a violent offence of this character and severity on a fellow citizen lawfully going about the duty of attempting to secure the safety of others.

In my opinion, that question must be answered in the negative. By statute we are required to approach the matter of imprisonment as a penalty of last resort. At the same time, rehabilitation of the offender is not the only consideration in the sentencing process and there is nothing in the Penalties and Sentences Act to say that it is. If it were, one would expect that every first offender (which the respondent is not) could expect a non-custodial sentence for inflicting a beating as severe as this on an individual who, at the time, was unable to defend himself. The element of deterrence is of some significance in this kind of case where the complainant was, as I have said, carrying out a peace-keeping function at the time he was attacked.

If a term of imprisonment is not imposed in circumstances like these it will be difficult to justify such a sentence on any occasion in the future in which the offender is a person of otherwise apparently good character, and has personal and family claims on the sympathy of the sentencing tribunal. However, if justice is not seen to be done by and to others in the case of similar offences, the sentencing process will, in my opinion, quickly degenerate to the stage where prison sentences are arbitrarily imposed on some, but not on other, offenders who are equally undeserving or deserving of sympathy. The impression will soon gain ground that some individuals are specially favoured over and above others who have offended in much the same way.

To my mind consistency is a prominent hallmark of impartial justice and, at least, in the case of offences which cannot be passed off as relatively minor it should not be readily sacrificed to factors that are purely personal to the offender or his family.

I sympathise with the human impulse that led the Magistrate to arrive at the sentence which she imposed; but the matters I have mentioned seem to me to require that the respondent undergo a term of imprisonment for this offence. Taking into account all factors, both those in favour of and against him, including his past record and his family predicament I would therefore allow the appeal, set aside the orders for probation and community service; and sentence the respondent to imprisonment for a term of nine months. A conviction will be recorded.

DAVIES JA:  I agree.

MACKENZIE J:  I wish to comment on only one aspect of the matter in addition to what has been said by the learned Presiding Judge. The submission was made to the Magistrate that in the interests of consistency in sentencing the Court should not place a greater degree of importance on the degree of violence depicted because of a tendency for a tape to make an incident look worse than it is.

Counsel for the respondent here who was not counsel below expressly declined to advance that submission before us. Counsel for the respondent below had asked the Magistrate not to place an undue emphasis because there is a visual record of what had occurred. If it is implicit in that submission that the evidence provided by the surveillance tape should in some way be devalued in deciding the degree of violence used in the assault and its seriousness, merely because there is a visual representation of the event I do not accept that as valid.

If it is implicit in the submission that viewing the tape is calculated to inflame the Tribunal which has to make a decision involving those issues it is equally unfounded.

Where an accused person's actions are captured on tape there is no reason why what is clearly shown on the tape should not be given full effect. If the visual image conveys more graphically than the spoken word what was done by the accused the mere fact that that occurs does not disadvantage an accused in an impermissible or unfair way.

Of course, there may be tapes which do not clearly depict what happened or which are equivocal. Where that occurs the accused is entitled to have his case dealt with on a basis which does not involve drawing any inference more adverse to him than is open on a fair interpretation of what the tape shows. But if a tape unequivocally shows what has occurred there is no reason why the Court should not act upon what is plainly recorded on it. I agree with the orders proposed.

McPHERSON JA:  I agree entirely with the remarks that Mr Justice Mackenzie has added, and wish to associate myself with them.

DAVIES JA:  So do I.

McPHERSON JA:  A thought has occurred to me, Mr Martin, which I should really have taken account of earlier. It was not my intention to disturb the order for payment of compensation for $200 but I see that, on looking at it, it was really made part of and a condition of the probation order. Now, if we, as I have already proposed, remove the probation order, the compensation condition goes with it. Is it open to us to order that the offender pay the sum of $200 by way of compensation?

MR MARTIN:  Could Your Honour bear with me a moment?  Your Honour, it might be appropriate to - I'm trying to find the appropriate section in the Penalties and Sentences Act. There is no reason why Your  Honours cannot do that and there is no reason why Your Honour cannot impose a figure of $200 on the understanding that whatever the sum was has already been paid.

McPHERSON JA:  It is not really imposing a new sentence, is it?  It does not seem to me to be so anyway.

MR MARTIN:  Your Honours would simply have to act under the general provisions which I am trying to turn up now rather than the probation provisions.

McPHERSON JA:  Well, can I do it this way?  We will make an order for compensation, and if it requires to be refined in some form, you can let me have a piece of paper with the refinement written on it, which I will incorporate into the transcript of the reasons. Otherwise, we will probably spend some time trying to find the section and then formulating the form of order which, I suppose, requires that it be paid to the clerk of Court somewhere at a certain time. You can include in it provision to the effect that amounts already paid under the probation order shall be taken as paid on account of this order.

MACKENZIE J:  It looks as though it is probably section 35 which seems to give a Court the general power to order that an offender may pay compensation for personal injury suffered by a person because of the commission of an offence. But, perhaps, if you could confirm that that is correct.

MR MARTIN:  I have got 35 in front of me Your Honour but I will have to read it.

MACKENZIE J:  Yes, I am only trying to be helpful not definitive.

McPHERSON JA:  The order of the Court on this appeal therefore will be that the appeal is allowed and that the orders for probation and community service imposed below are set aside and the respondent is sentenced to imprisonment for a term of nine months. It is not the intention that the order for compensation should be disturbed. I understand that some amount has already been paid under it; but, as it is at present a term of the probation order which we have set aside, it will be necessary for a new order to be made for the payment of that compensation taking into account, of course, the fact that some amount has, as we are informed, already be paid from the sum of $200.

Counsel will, if they please, submit a formulated provision to cater for the matter of that compensation to which I have referred. We have to issue a warrant.

MR HAMLYN-HARRIS:  Yes, I have no objection to that Your Honours but would Your Honours be prepared to order that the warrant lie in the Registry for one week so that the respondent can put his affairs in order.

McPHERSON JA:  Any objection to that, Mr Martin?

MR MARTIN:  No, Your Honour.

McPHERSON JA:  Yes. A warrant is ordered to issue but it is to lie in the Registry for one week or until further order.