The Queen v Hsu and Hsu[1998] QCA 257

THE PRESIDENT:  The applicants each pleaded guilty to two counts of assault occasioning bodily harm whilst armed. They were sentenced in the District Court, Brisbane, each to two years imprisonment with a recommendation for parole after eight  months. They have no prior convictions. 

The learned sentencing Judge observed there had been family feuding and some episodes of violence between the family of the applicants and the family of the complainants although the last significant incident was about a year before these offences occurred and passions should have had time to cool. The offences occurred in the Karaoke Lounge at the Sunnybank Hotel. Both complainants and applicants were of Taiwanese descent. The complainants Yung Chuan Chen, aged 19, and Yung Pi Chen, aged 16, were brothers. The applicants, Morgan Hsiu-Ming Hsu, 20 at the time and 21 now, and Mau Sung Hsu, aged 26 at the time and 27 now, were also brothers.

At about 1.30 a.m. on 30 December 1997 a group of people, including the applicants, entered the bar. A dispute arose whilst they were in the bar over some petty matters. The applicant Mao lifted his clothing to reveal a revolver and Morgan said, "Later."  Mao said, "Just hit him."   Morgan walked over to the complainant Yung Chuan Chen, picking up an empty beer bottle, and struck the complainant over the back of his head, smashing the bottle. The complainant felt pain and his head started to bleed. He was set upon by three to four others and was punched and kicked all over his head and shoulders and felt more glass breaking over his arms and body. He suffered a swollen and bruised left eye, tenderness of the inferior orbital margin, lacerations to his left eyebrow and ear. His scalp and neck wounds were sutured.

The complainant Yung Pi Chen was then hit by the applicant Mao with the bottom of the hand gun. Other patrons, seeing the hand gun fled or sheltered under tables. Morgan hit this complainant on the head with a drinking glass which broke on impact. The complainant suffered a 15 centimetre graze to the back of his head, multiple lacerations to his left fifth finger which was fractured, multiple minor abrasions to his right elbow and upper arm. He required stitches to his head and finger area.

As the learned sentencing Judge noted, it is fortunate the injuries were not more serious. Eye witnesses and a surveillance video implicated the applicants. Prosecution witnesses were cross-examined at a committal proceeding.

The learned sentencing Judge understandably took a serious view of the case. A gun was displayed to intimidate and physical injuries were inflicted with a glass and a beer bottle.

His Honour described the incident as a gangster style raid and this description is one of the grounds for this application for leave to appeal.

The record indicates that it was clearly submitted by defence counsel and not submitted otherwise by the Crown that the applicants had been drinking at their home beforehand and went to the hotel with no intention of causing trouble. Whilst at the hotel, because of words and gestures, this fracas arose.

His Honour noted in his sentencing remarks:

"On the face of it no amount of talking can gloss over the fact that this was a gangster style raid on the club and that in the result the two Chen brothers were set upon in my mind mercilessly and unceremoniously and viciously."

Although the decision of this Court in The Queen v. Morrison, CA 391 of 1997, delivered 26 June 1998 had not been handed down at this time, it states the law that applies as to standard of proof on sentencing. R v. Morrison establishes that proof beyond reasonable doubt is required if there is a disputed factual issue likely to result in a heavier sentence.

This issue was in fact not even disputed by the Crown. It seems it was clearly an aggravating factor in the mind of the learned sentencing Judge that this was a gangster-style raid on the club. In fact on the material before His Honour this was not so, although it could still have been described as gangster-style behaviour.

In the light of that it seems that His Honour did err in taking into account a fact, namely that it was a gangster- style raid on the club, in sentencing which he was not entitled to do. As a result, the sentencing process has miscarried and this Court must exercise its sentencing discretion afresh.

The facts of these offences are serious indeed. As the learned sentencing Judge noted, it is fortunate no-one was more seriously injured. He correctly noted the penalties for these offences has recently increased to a 10 year maximum sentence, recognising disapprobation of offences of violence, especially where weapons bottles or glasses are used. He rightly placed some emphasis on public protection and by inference the fact that deterrent sentences should be imposed in cases such as this.

As has been said by this Court on other occasions, whilst these offences are serious and Courts must deal seriously with this type of offence, particularly where beer glasses or bottles are involved, it is not invariable that a custodial sentence is imposed, although it often, indeed usually, is. That does not mean, of course, that where there are special circumstances warranting a fully suspended sentence or a non-custodial sentence, such a sentence cannot be imposed but such cases are unusual.

Here the applicants each pleaded guilty to these offences and they have no prior convictions. It is conceded a proper distinction should be drawn between the applicant Mao Sung Hsu, who was 26 years of age at the time, and who it seems encouraged his younger brother Morgan, who was 20 years of age at the time, to commit this offence.

This is not such a case where special circumstances warrant a sentence which does not involve some actual time in custody. However after a review of comparable sentences such as could be found, it seems the sentence imposed by His Honour was slightly heavier than would ordinarily be imposed. In any case the discretion of this Court must be exercised afresh.

I would grant the application for leave to appeal. I would set aside the sentences imposed below.

I would sentence the applicant Morgan to 12 months imprisonment suspended after serving a period of four months imprisonment with an operational period of two years.

In respect of the applicant Mao, I would sentence him to 18 months imprisonment suspended after six months with an operational period of two years.

MACKENZIE J:  I agree.

PINCUS JA:  I agree with the course proposed. I would add to what has been said that, in my view, the injuries as depicted in the photographs do not seem to be as significant as one might have thought from the description given in the record.

I would add also that it seems to me difficult to generalise about the proper penalty for offences of violence of this order, because the circumstances are so widely variable. However the comparable sentences produced, helpfully, by the Crown in this case, and general experience, tend to show in my view that the sentences imposed were outside the range which one would have expected.

I agree in particular with the view which has been expressed that the learned sentencing judge, with respect, erred in making a finding that there was a raid on the club. That does not seem to me to have been open either on the submissions made from the Crown or those on the other side.

I agree, as I have said, with the orders proposed.

THE PRESIDENT:  The orders are:

The application for leave to appeal is granted.

The sentence imposed below is set aside.

The applicant Morgan Hsiu-Ming Hsu is sentenced to 12 months imprisonment to be suspended after serving four months of that term with an operational period of two years.

The applicant Mao Sung Hsu is sentenced to 18 months imprisonment to be released after serving six months of that sentence with an operational period of two years.

I order that warrants be issued for the arrest of Mao Sung Hsu and Morgan Hsiu-Ming Hsu.

...

THE PRESIDENT:  And I order the warrant lie in the Registry

for seven days.