The Queen v Nuckey[1998] QCA 208

COURT OF APPEAL

McPHERSON JA

HELMAN J

CHESTERMAN J

CA No 95 of 1998

THE QUEEN

v.

HUNTER YORK NUCKEY 

   (Applicant) Appellant

BRISBANE

DATE 22/06/98

JUDGMENT

McPHERSON JA:  The applicant was convicted on his own plea of guilty in the District Court to an indictment charging him with common assault. He was sentenced to imprisonment for 12 months to be suspended after 45 days for a period of two years. At the time of sentencing he had already spent 45 days in custody and in consequence he was released immediately.

He has now appealed against his conviction and more importantly has sought leave to appeal against sentence. The appeal against conviction after a plea of guilty is, to say the least, futile and it has been withdrawn.

So far as sentence is concerned, the facts are that the applicant went to a pawnbroker's shop taking with him a whipper-snipper which he wished to pledge. The pawnbroker formed an impression that the applicant had stolen something and sought to prevent him leaving the shop by barring his exist through the door. The applicant pushed him off using the whipper-snipper for that purpose, and a struggle ensued in which the applicant ended up with a hold on the pawnbroker's hair. Someone nearby said the police had been called and the applicant ran away.

The complainant sustained no injuries apart, one supposes, from some temporary pain. It should perhaps be added that the experience of being attacked is for most of us not necessarily a welcome one. The assault was, however, a mild one and was appropriately charged only as a common assault.

The plea of guilty, it must be said, came late because the applicant had also originally been charged with stealing, but the Crown decided not to proceed on that charge. The assault, as I have said, was slight, and the applicant, who is some 44 years old, might fairly have expected to escape without any penalty at all, but for his extensive criminal record.

His convictions go back to 1973, since which time he has been before the Court some at least 13 occasions for various offences including burglary, larceny, stealing, receiving false pretences and numerous offences concerning drugs, which seemed to be the source or root of his problems. In the course of that time he has been sentenced to imprisonment for periods ranging from 12 months to two years. His most recent conviction before this was in 1997.

One can sympathise with the view that the judge took in the matter, because, having regard to the applicant's previous record, it seems rather likely that he will re-offend in the future. Nevertheless, it is not open to this Court to impose a sentence disproportionate to the seriousness of the offence with a view to attempting to stop him offending in the future. To put it in another fashion, the function of the Court is not simply to use the sentencing process as a means of preventive detention or punishment against the possibility of future offences being committed.

When one returns to look at the offence itself, it was, as I have said, a mild form of common assault and one which, apart from this man's record, would probably have been punished in a very lenient fashion. It seems rather unlikely that the sentence in most other cases would have exceeded a period of, say, three months at most, and the applicant has, as I have already noted, spent 45 days in gaol before sentence.

In all the circumstances I think that the judge erred in the manner in which he approached this matter, in as much as he must have imposed the suspended sentence out of an understandable, but legally unwarranted, expectation that the applicant would re-offend at some time in the future.

Having regard to all these matters and to the fact that the applicant had been in custody for 45 days before sentence, I would be inclined to grant leave to appeal against the sentence in this case and to set aside the sentence of imprisonment for 12 months, suspended for two years as it was in this case.

HELMAN J:  I agree. In the course of arguing the applicant's case Mr Hunter submitted that one reason for concluding that the sentence was manifestly excessive could be that there is on the applicant's history a strong possibility, at least, that he will re-offend during the operational period and that that in itself would tend to show that the sentence was manifestly excessive.

That is an argument that I would reject. It appears to me that the sentence was, however, manifestly excessive for the reasons given by the learned presiding Judge.

CHESTERMAN J:  I agree.

McPHERSON JA:  Gentlemen, should we formally sentence him to 45 days or - if we say nothing, are we leaving the case as one in which he has not yet been sentenced?

MR RIDGWAY:  That's a possibility that there needs to be a sentence imposed to take account of the time served. If nothing else I'd urge the Court to do that.

McPHERSON JA:  Would it be not appropriate to sentence him to the rising of the Court?

MR RIDGWAY:  Yes.

McPHERSON JA:  That's this Court. That's not unsatisfactory to you, is it?

MR HUNTER:  No, Your Honour.

McPHERSON JA:  The order of the Court is that the application is granted and the appeal allowed. The sentence of 12 months imprisonment, which was suspended for two years, is set aside and the applicant is sentenced to imprisonment to the rising of the Court.