The Queen v Ward[1998] QCA 329

COURT OF APPEAL

McMURDO P

McPHERSON JA

SHEPHERDSON J

CA No 245 of 1998

THE QUEEN

v.

THOMAS DARRYL WARD Applicant/Appellant

BRISBANE

DATE 18/09/98

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty on 22 July 1998 part-way through a trial to one charge of assault occasioning bodily harm committed upon Susan Joy Dooley.  The complainant and an eye-witness had already given evidence and been cross-examined.  The applicant was sentenced to nine months' imprisonment, suspended after three months, for three years.  He claims the sentence was manifestly excessive in respect of him serving a term in prison.

He is 49 years of age.  He and the complainant have lived together for about seven years, separating on 31 March 1997.  The offence occurred on 26 August 1997.  There had been prior correspondence from the applicant to the complainant requesting return of property claimed by him to which the complainant had not responded.

The complainant was visiting a neighbour of the applicant who was a friend.  As she left the neighbour's residence the applicant confronted her at her car, demanding the return of the property claimed by him.  The complainant tried to get into her car but the applicant pushed her against the vehicle and struck her several blows to her hands and arms, and one or more on her face.

In her statement she described these blows as slaps, but in evidence said they were neither slaps nor punches.  She said, "Mr Ward is trained in martial arts and I would say it would be close to a martial arts action."  She suffered a swollen upper right lip, bruising to three fingers of the right hand, bruising to her right elbow, and soreness of the arm and chest. 

She suffered from a persistent back injury which flared as a result of the assault.  She had swelling to the right side of her back.  When she was pushed, her lower right side of the spine hit the car.  Her sunglasses were knocked from her face and she put her hands up to protect her face. 

There is no suggestion of any history of prior violence by the applicant to the complainant.  The applicant was aware the complainant had suffered prior disc damage to her back and had nursed her.  He had demanded the return of a walking-stick which was in the back of the car and which had been used by her in the past, and which had been a gift from him.  She refused.

At a time during their relationship, her back injury had been such that she was confined to bed for three months, receiving twice daily injections for pain.  Following the assault she required additional medication, stronger doses of medication in her spine injections, and extra sleeping tablets to help her sleep. 

It was unclear from the re-examination of the complainant as to what portion of her current back pain was attributable to the assault, or for how long there was a flare-up of pain attributable to the assault.  Her doctor noted the swollen upper lip on the right side, quite swollen and a bit blue-ish; the third, fourth and fifth fingers were swollen and bruised on the right hand;  and her elbow had a bruise five centimetres long and one centimetre wide.

She complained of a sore chest and sore arm.  He noted some swelling on her lower back of which she did not complain and which he attributed to her longstanding back condition.  Her doctor agreed she needed some increased medication because of greater back pain following the assault.  He did not say over what period this extended.

The eye-witness, Ms Dwyer, the neighbour of the applicant and friend of the complainant, described the complainant as trying to calm down the applicant immediately before the assault.  Ms Dwyer described the incident in this way:

"And it was sort of like there was a bit of scuffling going on, and I saw her sort of go backwards and that's when I yelled out, 'Tom, don't hurt her, don't hurt her,' and he looked up at me sort of in a bit of shock and a bit frightened or something.  He just looked up.  Then he walked away, swearing."

She noted the complainant was "shaking like crazy" and she saw some blood on the complainant's ear "which was a bit busted-up down the top and down the bottom".  She saw the complainant fall back onto her car during the scuffle.

The learned Judge below clearly took a dislike to the applicant.  He refused him bail during adjournments, initially because he had been late for the start of the trial, and at lunchtime he noted, after an application for bail by the applicant's barrister:

"Refused, Mr Hogan, as I apprehend that the defence says it didn't happen and I don't like the evidence.  As I told you before, there's no way there is going to be any bail allowed for this accused."

Shortly after the lunch adjournment the applicant pleaded guilty.  During the Crown sentencing submissions His Honour noted:

"This is one of the worst assault occasioning bodily harms I have ever tried.  I have been sitting here, doing these cases now for 16 years.  There is no question of this being treated anything other than seriously.  It's only a question of how much have you got a case where somebody beats up on a woman who is more or less crippled, with full knowledge of her inability to fight back."

When counsel for the applicant, in his submissions, mistakenly referred to the applicant as "having a post-natal drip", instead of a post-nasal drip, His Honour said, "What?  Nasal, you mean, don't you?"  Mr Hogan, "Yes, I'm sorry."  His Honour, "I can believe the drip part."  In his sentencing remarks the learned Judge said:

"This is one of the worst cases of assault causing grievous [sic] bodily harm that I have ever tried.  A diminutive, badly and permanently injured woman of middle years was attacked by you in full knowledge of her physical difficulties, and why did you do that?  Arguments over the recovery of property, items exchanged between you, the very walking-stick that you were apparently anxious to recover had, it seemed, been given to her in order to assist her mobility and overcoming her injury. 

You knew all about her disability and you knew she could not fight back.  Your behaviour, on any view of it, was monstrous.  It was cowardly violence.  I am by statute bound to consider this matter very seriously.  I am concerned at your evident inability to control your anger, anger over trivia.  If I were to release you, then who knows who would be the next object of your anger, the object of your further violence.

I am not going to take that risk and I do not think anybody in the community, knowing about what you have done, would expect me to do so, especially when it has long been held in these Courts that past conduct is an excellent indication of likely future conduct.  I am not satisfied that this case can be aptly met with a non-custodial sentence of any kind. 

Anger, violence of this kind, must be met with condoned punishment so as to deter not only you in the future, but others who might be disposed to knock defenceless people about.  The community has quite enough of it and women have to be protected."

The applicant was 49 years old and had no previous convictions.  Some references were tendered on his behalf for voluntary work done by him for Iona College.  The applicant was in pain with a double hernia and was to have surgery on the day of the assault.  This had to be delayed because he was suffering from bronchitis and post-nasal drip, and was on medication.

In these circumstances it was submitted he reacted badly to seeing the complainant near his home, with her background of dispute over property.  It was submitted the offence was out of character.  It was submitted that medical records before the Court showed the complainant spoke favourably of assistance provided to her by the applicant for housework and shopping prior to their separation.

He had served four years in the CMF as a young man.  It was submitted it was an isolated incident by a man of previously good character, and if he were permitted to maintain his employment in the community he would be in a better position to pay compensation to the complainant, the complainant having indicated she would make such an application.

His Honour rightly considered he was bound to sentence the applicant with regard primarily to the matter set out in section 9(4) of the Penalties and Sentences Act of 1992.  His Honour also rightly noted that because of section 9(3) of the Act, the principles set out in section 9(2)(a) of the Act, namely that imprisonment should only be a last resort, did not apply.

His Honour was concerned that he was primarily required to take into account the factors set out in section 9(4)(a), "The risk of physical harm to any members of the community if a custodial sentence were not imposed," and 9(4)(b), "The need to protect any members of the community from that risk."  But other factors are also listed in section 9(4) of the Act.  I will not list them here, but they include:

"(g)the past record of the offender, including any attempt at rehabilitation, and the number of previous offences of any type committed; 

(h)the antecedents, age and character of the offender."

His Honour rightly noted the serious aspects of this offence, particularly where the applicant was aware of the complainant's vulnerability because of her disability and assaulted her regardless.  The community regards seriously incidents of domestic violence like this, and the Courts will impose significant deterrent penalties to show the disapprobation of the Courts and the community.

The offence could however, in my view, not be described as one of the worst assault occasioning bodily harm cases, as His Honour twice described this offence on one occasion referring to the offence no doubt mistakenly as assault occasioning grievous bodily harm.

These comments by His Honour in the context of this case in my view show that his sentencing discretion miscarried, and although the sentence imposed by him may not necessarily be outside the appropriate range, this Court can exercise its discretion afresh.

Although there are serious aspects to this offence regard must also be had to the antecedents of the applicant.  He is 49 years of age and has no prior convictions.  The incident in these circumstances does seem to be an isolated offence.  His Honour's comments that the case was one where the past conduct of the applicant indicated similar likely future conduct is equally consistent with the applicant not reoffending in the future, especially if there are controls over his behaviour such as are imposed by a suspended sentence.

Fortunately the complainant was not seriously injured and I note the eye witness did not suggest the applicant behaved in a frenzied or particularly violent manner, describing the incident as a scuffle.

Whilst a conviction undoubtedly should have been recorded in this instance for my part I would impose a fully suspended sentence. 

The length of sentence suggested by His Honour and the time for which that sentence should be suspended were, in my view, appropriate. 

I note the applicant has been in prison for five days from 22 July 1998 until 27 July 1998.  For a person of the applicant's background this was, no doubt, a salutary lesson to him and has brought home to him the serious view the community and the Courts take of his conduct.  That is a significant factor in forming my view that the sentence should now be suspended forthwith.

For my part I would grant the application for leave to appeal against the sentence and vary the sentence below by ordering that the sentence be suspended forthwith.  In so far as it may be necessary I would order that a conviction is recorded.  Otherwise the sentence below would be confirmed.

McPHERSON JA:  I agree with the reasons given by the President.  I wish to add only that, for my part, our decision reducing the penalty imposed here should not be viewed as a precedent for regarding assaults of this kind as of little or no consequence.

However, the circumstances in which the assault took place, the appellant's otherwise unblemished record, the natural disinclination to return him to custody after he has been granted bail, and the unexpected severe view that His Honour formed of this incident all lead me to conclude that the sentence proposed by the President is the appropriate course to take.

SHEPHERDSON J:  I agree with what has been said by the President and by Mr Justice McPherson.  For my part the Court exercises the sentencing discretion afresh, because as appear from the learned sentencing Judge's comments His Honour mistakenly said the offence was assault occasioning grievous bodily harm.

As has been said His Honour sentenced the applicant to nine months imprisonment, suspended after serving three months of that time, and imposed an operational period of three years from 22 July 1998. 

In my view the assault by the applicant on the defenceless, diminutive and permanently injured complainant was one which might reasonably have been expected to attract a sentence of imprisonment whether wholly or partly suspended. 

In my view the sentence imposed should be affirmed as has been said by the learned President, save that the term of the actual imprisonment should be varied from three months to five days and I agree with the President that the conviction must be recorded, and I would declare that the five days which he has served be deemed time served under the sentence.

THE PRESIDENT:  The orders of the Court are the application for leave to appeal against sentence is granted.

The sentence below is varied by ordering that the sentence be suspended forthwith.  In so far as it may be necessary to order, a conviction is recorded, otherwise the sentence below is confirmed.

MR RUTLEDGE:  I am sorry, Your Honour.  Maybe I just missed it but as part of your formal order did you declare that the five days-----

THE PRESIDENT:  Well, I do not think it is necessary, because the sentence is now suspended forthwith.

MR RUTLEDGE:  All right, yes, thank you.

THE PRESIDENT:  That was a factor in coming to that conclusion that it was the appropriate sentence.  It seemed to be the neatest way to make the orders.

MR RUTLEDGE:  Okay, thank you.