The Queen v Mallard[1998] QCA 59

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

[R. v. Mallard]

C.A. No. 450 of 1997

THE QUEEN

v.

DONALD ROSS MALLARD

(Applicant) Appellant

[R. v. White]

C.A. No. 452 of 1997

THE QUEEN

v.

DARRYL JOHN WHITE

(Applicant) Appellant

Fitzgerald P.

Davies J.A.

Dowsett J.

Judgment delivered 17 April 1998

Judgment of the Court

IN APPEAL C.A. 450 OF 1997:

(1) APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL ALLOWED, AND SENTENCE SET ASIDE;

(2)  ORDERED IN LIEU THAT THE APPELLANT BE PLACED ON PROBATION FOR 1 YEAR, WITH A REQUIREMENT THAT HE REPORT TO AN AUTHORISED PERSON IN ALICE SPRINGS AND OTHERWISE ON THE USUAL TERMS AND CONDITIONS; AND

(3) ORDERED THAT NO CONVICTION BE RECORDED.

IN APPEAL C.A. 452 OF 1997:

(1) APPEAL AGAINST CONVICTION ALLOWED, CONVICTION SET ASIDE, AND VERDICT OF GUILTY OF COMMON ASSAULT SUBSTITUTED;

(2) APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, AND SUBJECT TO WHAT FOLLOWS, APPEAL ALLOWED AND SENTENCE SET ASIDE;

(3) PROVIDED THE APPELLANT CONSENTS, ORDERED THAT THE APPELLANT BE PLACED ON PROBATION FOR 1 YEAR ON THE USUAL TERMS AND CONDITIONS; AND

(4) ORDERED THAT NO CONVICTION BE RECORDED.

CATCHWORDS: CRIMINAL LAW - Assault occasioning bodily harm - Whether conviction unsafe where no evidence that harm was done by acts of the accused, as opposed to unidentified person - Whether appropriate conviction was for common assault.

CRIMINAL LAW - Sentence - Whether sentences manifestly excessive in light of lack of prior relevant convictions - Whether no sentence other than a custodial sentence was appropriate in the circumstances - Penalties and Sentences Act 1992, s.9(4).

Counsel:  Mr J. Hunter for the applicant/appellant, Mallard

Mr P. Goodwin for the applicant/appellant, White

Mr T. Winn for the respondent

Solicitors:  Legal Aid Queensland for the applicant/appellant, Mallard

Millican & Associates for the applicant/appellant, White

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:  23 March 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17 April 1998

On 3 December 1997, the appellant White was acquitted of unlawful wounding but convicted of assault occasioning bodily harm.  He was sentenced to imprisonment for two months.  His brother, the applicant Mallard, was convicted of common assault, and was also sentenced to two months’ imprisonment.  Convictions were recorded.  White has appealed against his conviction and applied for leave to appeal against his sentence.  Mallard has applied for leave to appeal against his sentence. 

The incidents which gave rise to the charges of which White and Mallard were convicted occurred on 16 November 1996.  At that time, White was aged 24 years and Mallard was aged 20 years.  Neither had any relevant prior criminal offences.  Each was released on bail almost immediately after he was sentenced.

White and Mallard were part of a group which went to the “City Rowers” tavern and nightclub.  Mallard endeavoured to gain entrance to the nightclub without paying the cover charge.  When he was unsuccessful, he was abusive towards a female staff member, and was told that he would not be permitted to enter the nightclub that evening.  He was escorted away from the entrance to the nightclub by a security guard, Williams.  Later, at about 3 a.m., Williams saw Mallard with a group of people, including White, in the nightclub.  He told him to finish his drink and leave.  One of the group said that the applicant would not be going.  There was an altercation in which each of White and Mallard punched Williams, who was also struck on the head with a bottle by an unknown person and struck twice to the face with broken glass.  The intervention of other security staff was necessary to protect Williams.  There was no suggestion either White or Mallard struck Williams with a bottle or broken glass, or did more than punch Williams.

White’s appeal against conviction was effectively resolved in the course of argument before this Court.  There was evidence that he punched Williams, but no evidence that his blow or blows occasioned bodily harm to Williams.  White’s appeal against conviction should be allowed to the extent that the conviction should be reduced to one of common assault.

It is convenient to deal first with the sentence imposed upon Mallard.  It was submitted that his sentence was manifestly excessive because of his youth, previous good character and future prospects.  He has completed an external course through a university at Alice Springs, and is attending university this year.  At the time of sentence, he was also expecting to commence employment in a private art gallery at Alice Springs.  He has a keen interest in Aboriginal art and culture, and his long term plans are to travel overseas promoting that culture.  A recorded conviction will significantly affect his career.

It was further submitted that the sentencing judge erred in that he failed to have “sufficient regard to the nature of the offence and the absence of any injury to the [victim] as a result”.  Importantly, it was pointed out that, under sub-s. 9(4) of the Penalties and Sentences Act 1992,^[1] a custodial sentence should not have been imposed because it could not be said that no other sentence was appropriate in the circumstances.  That was effectively conceded in this Court by the prosecutor.  It has previously been held by this Court that the section as it existed at the time of the offence must be applied, and that it must be given effect when the prosecution acknowledges  that a non-custodial sentence could have been imposed.

Mallard’s application for leave to appeal against sentence should therefore be granted, his appeal allowed and his sentence set aside.  He has consented to probation, and an order should be made that he be placed on probation for a period of one year on the usual terms and conditions.  The Court was informed that arrangements are in place which would permit him to undergo probation in the Northern Territory, and he should report to an authorised person at Alice Springs.  No conviction should be recorded.

Although White is older than Mallard, there is little otherwise to distinguish them for the purposes of sentencing.  White is in a stable de facto relationship  and they have a young daughter with a second child due soon.  He is in well-paid fulltime employment.

In the circumstances, provided that he consents to probation, the same orders should be made in respect of White’s application for leave to appeal against sentence as are appropriate for Mallard, save that White should report to an authorised officer of the Corrective Services Commission at Brisbane.  If  White does not consent to probation, it will be necessary to reconsider his application for leave to appeal against sentence.

One further matter should be noted.  White and Mallard not only have the benefit of sub-s. 9(4) of the Penalties and Sentences Act as it existed at the time of the offences, but there are also a number of other personal features, including their youth and absence of prior criminal convictions, which have attracted leniency on this occasion.  Further, although Williams was injured in the altercation, the injuries cannot be attributed to either White or Mallard.  However, it should not be thought that attacks on security officers in the performance of their duties will be generally met with only light sentences.  Certainly, if the person or persons who struck Williams with the bottle and/or broken glass were convicted, a custodial sentence would almost certainly be inevitable.

In summary, White’s appeal against conviction should be allowed, his conviction of assault occasioning bodily harm should be set aside, and a verdict of guilty of common assault substituted.  Both applications for leave to appeal against sentence should be granted, both appeals allowed and the sentences of imprisonment set aside.  In lieu, each of White and Mallard should be placed on probation for a period of one year.  Convictions should not be recorded.