Attorney-General v Walsh[1998] QCA 217

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 158 of 1998

 C.A. No. 159 of 1998

 C.A. No. 160 of 1998

Brisbane

[R. v. Walsh, Sayer & Thompson;  ex parte A-G]

THE QUEEN

v.

SIMON JOSEPH WALSH

TIMOTHY ALTON SAYER

ANDREW LESLIE THOMPSON

 Respondents

EX PARTE: ATTORNEY-GENERAL OF QUEENSLAND

 Appellant

de Jersey C.J.

Thomas J.

Derrington J.

Judgment delivered 28 July 1998

Judgment of the Court

APPEALS ALLOWED.

IN EACH CASE, ORDERS MADE BELOW VARIED BY ADDING TO THE ORDER FOR THE PAYMENT OF A FINE AN ORDER THAT THE RESPONDENT BE IMPRISONED FOR SIX MONTHS, THE IMPRISONMENT TO BE SUSPENDED FOR AN OPERATIONAL PERIOD OF TWELVE MONTHS.

CONVICTIONS RECORDED.

CATCHWORDS: CRIMINAL LAW - sentencing - Attorney-General’s appeal - whether manifestly inadequate penalties - whether terms of imprisonment appropriate - provocation - deterrence - whether to record criminal convictions - three co-accused involved in hotel brawl - assault occasioning bodily harm.

Counsel:  Mrs L. Clare for the appellant

Mr C. Reid for the respondent Walsh

Mr T. Kimmins for the respondent Sayer

Mr R. Mulholland Q.C. for the respondent Thompson

Solicitors:  Director of Public Prosecutions (Queensland) for the appellant

Patrick T. Murphy for the respondent Walsh

McLaughlins for the respondent Sayer

Gilshenan & Luton for the respondent Thompson

Hearing Date:  17 July 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 July 1998

Each of the respondents pleaded guilty in the District Court to the offence of assault occasioning bodily harm while in company.  The offence occurred on 26 July 1996 outside and in the vicinity of the Caxton Hotel, Petrie Terrace, Brisbane.  The respondent Walsh was then 24 years old.  The respondent Sayer was 24 years old, and the respondent Thompson 23 years old.  The learned sentencing judge fined each of Thompson and Walsh $3,000 and Sayer $4,000, ordering that no convictions be recorded.  The Attorney-General appeals.

The circumstances may be summarised as follows.  At about 11.00 p.m., inside the hotel, the complainant male spoke with the respondents who were themselves drinking in a group.  It was an unfriendly encounter, started by the complainant.  In the course of it, the complainant was pushed over but there is some doubt as to by whom (although Sayer’s counsel informed the sentencing judge that Sayer did so).  As a result, his wallet and other items fell on to the floor.  The complainant then left that part of the hotel, returning 15 to 20 minutes later with some friends.  Sayer was then carrying some glasses of beer.  The complainant hit Sayer a severe blow to the face, causing him to fall to the floor, smashing the glasses as he fell.  This caused some particular anxiety in Sayer, because he had previously had metal plates surgically inserted in his face in the area where the blow made contact.  Later medical examination reveals that the blow produced gross oedema to Sayer’s right cheek and mild concussion.  A fist fight described as a “melee” involving a number of people then developed in the hotel, spilling outside. 

What occurred outside was partly captured on a security video, and we have watched that video.  The judge described it as a serious, bad example of assault occasioning bodily harm.  The judge characterised the respondents as three very angry aggressive young men behaving in a violent loutish and cowardly way towards the complainant.  That accords with our view of the matter, having watched the video.

It was a brutal attack in which Sayer was the most active of the three offenders.  Despite the absence of resistance, he held the complainant down and repeatedly punched him in the head.  He also kicked him somewhere in the upper part of the body.  Walsh punched the complainant twice.  Walsh and Sayer dragged the complainant along the footpath towards the car park area.  After freeing himself from the restraint of a security officer, Thompson picked the complainant up and administered one punch.  The respondents continued the assault in the car park until bystanders pushed them off.  The whole incident took a couple of minutes.  The respondents then left, before police arrived.  It was eight months later that the police identified Thompson and Sayer as two of the relevant offenders.  This having occurred, Walsh identified himself as the third.

The complainant suffered a base skull fracture with a traumatic closed skull fracture leak; a laceration to one eye socket necessitating five stitches; both eyes were blackened and swollen to the point where he could not open them;  he suffered bilateral subconjunctival haemorrhage and tender swollen periorbital areas;  there was bruising to the neck, ear, back and legs.  He was hospitalised overnight, had a CAT scan and was x-rayed.  He was bedridden for a week and could not return to work for a month.  For three to four months he endured insomnia, nightmares and blurred vision.  He experienced persistent headaches and leakage from his nose.  The neurological problems had not completely settled by the time of sentencing, two years after the offence.  His “victim impact statement” refers to an adverse effect on concentration and memory and self-confidence.  There was however no expert evidence of continuing psychological or psychiatric damage.  The Crown chose to charge only assault occasioning bodily harm.  It is not open to impose a sentence on the basis that the complainant will suffer any permanent effects from the injuries.

In their written submissions, the respondents pointed to the Crown’s inability to identify where the complainant’s injuries were sustained, that is, an inability to establish particular injuries as attributable to the respondents’ actions outside the hotel.  The respondents’ pleas involved concession of responsibility for some bodily harm.  It does not greatly matter in this case that particular injuries cannot be pinned to the respective respondents.  Wherever the injuries were actually caused, the respondents’ responsibility is substantial.  Their conduct was sufficiently violent to have been a substantial cause of the results that can be seen in the photographs.

The respondents were industrious, intelligent persons of otherwise very good character and reputation, and had participated commendably in community affairs.  Two are solicitors and the other a forensic scientist.  These offences were accepted as aberrations.  They had no previous criminal convictions.  They pleaded guilty upon ex officio indictments.  They were genuinely remorseful.  They offered compensation.  They have paid the fines ordered by the learned judge.

Before that judge, the prosecutor sought a custodial term, although he conceded that the imprisonment might properly be wholly suspended.  The judge, as we have noted, imposed substantial fines.  He did not record convictions because of the provocation of the complainant which occurred inside the hotel at the start of the sequence of events, because of the ages of the respondents, their character, and uncertainty with respect to the practice of their professions were convictions recorded.

We were addressed as to the proper approach on an Attorney’s appeal.  There is no need to add to what is said in Melano (1994) 75 A.Crim.R. 392, 396.  Relevantly for present purposes, the Attorney contends that the penalties imposed were manifestly inadequate.

Ordinarily a cowardly vicious attack such as occurred outside this hotel, with three men aggressively attacking another, punching, kicking and dragging him about, while at a stage he was likely unconscious, conceding that they inflicted bodily injury, would warrant a term of imprisonment, even where the offenders were first offenders, and even if wholly suspended.  That is because violence associated with hotels, especially by groups of men towards lone victims, must be strongly deterred.  The point has frequently been made in the cases.  See for example Smallwood (Queensland Court of Appeal C.A. No. 30 of 1997, 15 April 1997, unreported) and Rowe and Talbot (Queensland Court of Appeal C.A. Nos. 149 and 152 of 1996, 23 July 1996, unreported).

In this case, however, there is the additional significant feature that the complainant had at the outset offered provocation.  The judge was heavily influenced not to imprison the respondents because of that initial provocation.  The practical effect of the provocation did however diminish as the melee spilt outside and time went on, and obviously could not ultimately overwhelm the significance of the severity of the continuing attack by these three men on the lone complainant.  Nevertheless the initial provocation retained, for purposes of sentencing, some residual significance. 

The question in the end is whether in all the circumstances these penalties were manifestly inadequate warranting intervention by the Court on this Attorney’s appeal. 

On the one hand, there is the brutality of the attack, even though it followed on from provocation offered earlier by the complainant.  Then there is the very important consideration of general deterrence.  One also adds to this side of the balance the immediate and continuing effect on the complainant.  On the other side, and in this context of more limited weight, are the circumstances personal to the respondents - their age, lack of prior criminal history, reputations, qualifications and employment, remorse, pleas of guilty and offers of compensation. 

Allowing for all relevant considerations, we have reached the view that the penalties imposed here were manifestly inadequate, wholly inadequate to reflect the properly high need for general deterrence, not deterrence special to the respondents because they are unlikely to reoffend, but deterrence directed to the community generally.  The learned judge was apparently unduly influenced by circumstances personal to the respondents. 

The appropriate course is to add to the fines terms of suspended imprisonment.  That will necessitate the recording of convictions. 

On any reasonable view, because of the gravity of the respondents’ conduct and high need for general deterrence, convictions should in this case have been recorded.  We note in that particular regard that there was no material before the learned sentencing judge to warrant any safe conclusion that convictions, if recorded, would likely have any impact on the future progression of the respondents through their professions.  That is not to say that that consideration would necessarily have been definitive anyway.  It suffices in the end to observe, as we have, that taking account of all relevant circumstances in this case, the gravity of the conduct and that high need for general deterrence necessitated the recording of convictions, such that the failure to do so in itself involved a miscarriage of the sentencing discretion.

In what follows, we have not considered it necessary to distinguish between the respective roles of the respondents as to the periods of imprisonment, although the fines imposed by the learned judge do reflect some differentiation.  The full extent of their precise respective roles is not entirely clear, and we consider it safe and appropriate to proceed from here on the basis that in this joint exercise their involvement was roughly comparable, subject to a somewhat greater involvement on the part of Sayer - adequately reflected however through the subsisting differentiation in the fines.

The appeals are allowed.  In each case, vary the orders made by the learned sentencing judge by adding, to the order for the payment of the fine, an order that the respondent be imprisoned for six months, the imprisonment to be suspended for an operational period of 12 months.  As follows from the imposition of terms of imprisonment in that way, convictions will be recorded.