The Queen v Cooney[1998] QCA 149

COURT OF APPEAL

PINCUS JA

DAVIES JA

FRYBERG J

CA No 386 of 1997

THE QUEEN

v.

NATHAN TODD COONEY Appellant

BRISBANE

DATE 06/03/98

JUDGMENT

PINCUS JA:  The applicant seeks leave to appeal against sentence. He was convicted in the District Court, after a trial, of unlawful wounding, and sentenced to two years imprisonment. He is 31 years of age and has a significant criminal history of which some details will be given later. The offence was committed late at night outside a hotel and as one might expect, different versions of the event were given, and to some extent these are set out in the written outlines which have been submitted. It is, however, important, as it seems to me, to pay attention to what the judge found. His Honour had the advantage, having presided at the trial, of seeing and hearing the witnesses, and was, of course, entitled to make findings consistent with the jury's verdict. His Honour took the view that over some minutes at least, the applicant was involved in fights with a group of other people and that that conduct persisted for some little time. The judge noted that the jury must have been satisfied that the applicant was not acting in self defence and proceeded on the basis that "this was a violent piece of conduct on your part on a person who in any view of the evidence was a totally innocent bystander". 

What the applicant had done was to strike the complainant in the head, with a glass which he had picked up. This caused a small laceration which required four sutures near the left ear. As Mr Hunter, who appeared for the applicant, emphasised, the injury was not one of considerable seriousness. Nevertheless, the judge noted, if the blow had landed just a little further from the point at which it did land, then the consequences might have been grave indeed.

To return to the question of the criminal record, the applicant has indeed been a persistent offender, having been before the Magistrates Court and the District Court dozens of times for various offences, such as damage to property, unlawful use of motor vehicles, breaking and entering, receiving and assaults. As to the last, he was sentenced in 1989 to community service in respect of an assault occasioning bodily harm and later in the same year was sentenced to six months imprisonment for such an assault. In 1992 he was sent to prison for three months for a group of offences, including assaulting police, and later in 1992 sent to prison again for three months for offences including resisting police. Since 1983, in most years the applicant has generally been in court and convicted of offences at least once, sometimes several times. He has, on ten occasions, been sent to prison. This is a substantial factor in considering whether, in the instant case, substantial deterrence is necessary.

The original submission made by Mr Hunter was that the offence was equivalent to a period of imprisonment in excess of that which was imposed, and that was a period of two years, as I have mentioned. The submission was made on the basis that the judge had given credit for 81 days that were spent in pre-sentence custody. The basis of treatment of that is set out in section 161 of the Penalties and Sentences Act 1992, subsection 1 of which requires that, if it is intended to achieve the result that pre-sentence custody is not to be taken into account, the court must otherwise order. More specifically, the subsection says "[i]f an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders."  As Mr Hunter pointed out in the present case, the Judge made reference to section 161, and it seems clear that His Honour did not "otherwise order".  What he said was, "More importantly, I take into account that you have spent 81 days in custody. I do not intend to make the declaration provided for under Section 158 or 161 of the Act, but I do propose to give full credit for the 81 days that you have spent in custody which, applying the old approach, can be almost doubled so far as a head sentence is concerned. Indeed, I propose to deal with it on the basis it is equivalent to approximately a six months' head sentence."  Hence, said Mr Hunter, what was imposed was in substance a sentence of two and a half years.

The difficulty with that reasoning is that His Honour has not made such an order as section 161 contemplates. It is perfectly clear that he intended to make such an order, but he has not done so, and there is no appeal by the Attorney. The consequence is that section 161(1) has its prima facie effect and the period of 81 days is taken to be imprisonment already served under the sentence, despite the Judge's intention.

In the submission which was made by Mr Hunter, he urged upon us the view that the range within which the sentence should have been imposed was 18 months to two years. In fact, it was a two year sentence; I have come to the conclusion that the two years, although at the top end of Mr Hunter's range, and although admittedly a heavy sentence, is not beyond the scope of a proper exercise of the sentencing discretion. We were referred to a number of authorities, and I have looked at some others, but it seems to me sufficient to refer, by way of comparison, to one of those cases, and that is the decision in the case of Darwin (CA No 98 of 1996, 4 June 1996).  That was a similar incident, at a Leagues Club where there was a party on. The applicant struck the complainant with a beer glass and twisted it into his head. There were a number of lacerations to the scalp. The judge took the view that there was no real provocation. There was a criminal history, but in contrast to the present case, no offences of violence. The penalty which was imposed on the applicant in that case was a sentence of 18 months imprisonment, with a recommendation for parole after serving a period of six months. In the leading judgment, the Judge remarked "[a] head sentence of 18 months is, in my view, well within the range for an offence of this type. This Court has, on many occasions, indicated that Courts must deal seriously with this type of offence, particularly where beer glasses are involved. There is need for general deterrence of that type of behaviour."  His Honour went on to say the recommendation for parole after six months, in his view, adequately reflected the circumstances peculiar to the applicant. In that case, the criminal history was not, as it seems to me, as serious as in the present case, because of the absence of previous offences of assault, and also, importantly, there was a plea of guilty, as there was not here. So, at least to that extent, Darwin manifested some remorse. Looking at the matter more broadly, a sentence of 18 months in Darwin does not seem entirely out of line with the sentence of two years here imposed.

It should be mentioned, however, that on behalf of the applicant, emphasis was placed on the fact that there was evidence before the primary Judge that immediately after the assault of which he was convicted, he himself was assaulted by persons present, perhaps in reaction to the assault which he had himself committed. The evidence before the Court was that as a result of the assault upon him, the applicant had a laceration to the left cheek extending to the left external ear. It was superficial and had a straight edge consistent with a sharp object being used and there were various small abrasions to the left forehead; about 20 sutures were inserted. It was contended, and it seems to me to be correct, that the Judge was entitled to take that matter into account as being a circumstance which might mitigate the punishment. His Honour in fact did so and the question is whether he did so sufficiently.

My own view is that although the sentence imposed is by no means a light one, considering the central point that in fact not a great deal of damage was done to the complainant, it was, as indeed seems to be conceded, one which was within the range.

Therefore, what I would propose is that the Court note that no order was made under section 161 of the Penalties and Sentences Act 1992 and note that in consequence the period of pre‑sentence custody is taken to be imprisonment already served under the sentence, but otherwise dismiss the application.

DAVIES JA:  I agree.

FRYBERG J:  I agree.

DAVIES JA:  The orders are as indicated by Pincus JA.