The Queen v Davidson and Dalton
[1999] QCA 155
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- The Queen v Davidson and Dalton[1999] QCA 155
- Add to List
The Queen v Davidson and Dalton[1999] QCA 155
The Queen v Davidson and Dalton[1999] QCA 155
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
CA No 7 of 1999
CA No 8 of 1999
Brisbane
[R v Davidson & Dalton; ex parte A-G]
T H E Q U E E N
v
KENNETH JACK DAVIDSON
- and -
TONY RICHARD DALTON
Respondents
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
Appellant
McPherson JA
Davies JA
Fryberg J
Judgment delivered 7 May 1999
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
1.CA NO 7 OF 1999: APPEAL ALLOWED. DATE AT WHICH THE RESPONDENT DAVIDSON IS RECOMMENDED TO BE ELIGIBLE FOR PAROLE VARIED FROM 20 MARCH 1999 TO 8 JUNE 1999.
2.CA NO 8 OF 1999: APPEAL DISMISSED.
| CATCHWORDS: | Assault - Sentence appeal - Admissibility of convictions as children - Whether a suspended sentence being imposed for the first time is capable of co-existing with a recommendation for eligibility for release on parole. R v Waters [1998] 2 QdR 442. Juvenile Justice Act 1992 Penalties and Sentences Act 1992 Corrective Services Act 1988 |
| Counsel: | Mr R Martin for the appellant Mr M Shanahan for the respondent Davidson Mr B Devereaux for the respondent Dalton |
| Solicitors: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondents |
| Hearing Date: | 16 April 1999 |
REASONS FOR JUDGMENT - McPHERSON JA
Judgment delivered 7 May 1999
- This is an appeal by the Attorney-General against inadequacy of the sentences imposed in the District Court on the respondents Kenneth Jack Davidson and Tony Richard Dalton. They were convicted on their own pleas of guilty, and on 9 December 1998 each of them was sentenced to imprisonment for 2 years, to be suspended after 6 months, for the offence of assault occasioning bodily harm. In the case of Dalton, a period of 173 days of pre‑sentence custody was declared to be time already served under that sentence. In the case of Davidson, the learned sentencing judge added a recommendation for release on parole after 3 months and 11 days. At the time of being sentenced, Davidson was already subject to a sentence of 12 months, with a recommendation for parole after 4 months, for an offence of occasioning bodily harm whilst in company and armed with an offensive weapon. That offence was committed on 13 January 1998, which was after the offence now under appeal but before he was sentenced in respect of it.
- The offences were committed jointly by the two respondents on 3 July 1997. The complainant, a 21 year old man who was a stranger to the respondents, left a nightclub in Surfers Paradise at about 1.00 am. At that time, the respondents were in the company of a man named Gray who, when the applicants were sentenced, had absconded. He was later also convicted of the assault, but with the circumstance of aggravation that he was armed with a bottle. His sentence was also 2 years, with a recommendation for parole after 6 months.
- On the occasion in question, one of the persons in the respondents' group asked the complainant for a smoke. The complainant did not smoke, and he was therefore not in a position to give him one. There was a short conversation, followed by an altercation in which one of the three punched the complainant. The police intervened and the respondents' group then left the scene.
- A short time later, the complainant and a male friend were walking along the street when they encountered the respondents again. The respondents' group ran toward the complainant and the subject assault ensued. The complainant was punched and then one of the respondent's group, who was probably Gray, hit the complainant with a beer bottle, causing him to fall to the ground. His head hit the concrete. He was then subjected to kicks from the three men. A security guard came on the scene and physically removed the assailants away from the complainant, who was by then lying unconscious in the gutter. The complainant suffered lacerations to the head requiring suturing, and a broken jaw. He had bruising to his chest. He was left with some scarring to the face, and has been severely affected by the incident. The victim impact statement recounts some of the pain and inconvenience which he experienced for many weeks after the incident. A psychiatric assessment reports that, although he is improving, he is likely to continue having distressing recollections of these events for some years to come.
- The two respondents were visiting the Gold Coast, to which they had come from Cherbourg where they live. Both of them had been drinking before they committed the offences. Dalton had previously attended an alcohol rehabilitation centre in Murgon. He is an artist of some talent, who is paid relatively well for his work of painting emu eggs. Davidson, too, has an alcohol problem and has also attended courses to address alcohol abuse and anger management.
- At the time of the offence, the applicants had admittedly drunk far too much. Davidson and Dalton had not been extensively involved in the first scuffle, which on their version was mainly the work of Gray. Initially they went on their way when told to do so by police. By that time Dalton was said to be “certainly ... very, very drunk". He imagined that he was being followed by the complainant and his friend, and that they were looking for a fight. On his behalf, it was not asserted that the complainant was in truth so minded, but simply that Dalton formed that view. Someone (it could well have been one of Dalton's own group) threw a beer bottle at Dalton, and he responded by hitting the complainant. It was accepted that Dalton overreacted in doing so. It was said that Dalton did not believe he had kicked the complainant , although other witnesses said he did; but he was so drunk that, because others saw him kicking the complainant, he accepted that he had done so. He considers that kicking is something he does not do. But it was accepted that he hit the complainant very hard, because he (Dalton) sustained injuries to his own hands from doing so. After a question from the sentencing judge, it was suggested that the incident was, in Dalton's mind, a consensual fight that got out of hand. It was accepted that Dalton was very violent to the complainant and that he did not stop till someone pulled him away. On behalf of Davidson, counsel said that Dalton's version of events accorded with his own instructions.
- Davidson was born on 26th October 1976, and so was 20 at the time of the offence, and is now 22 years old. Dalton was born on 12th April 1976, and was 21 at time of offence. Both have children living at Cherbourg. Each of them has an extensive criminal record. In the case of Davidson, there have been several previous convictions for assault, as well as an attempted armed robbery, and some offences of dishonesty. At the time of sentencing for this offence, he was serving a prison sentence for assault which, as has been mentioned, was committed after the subject assault now before the Court but before sentence was imposed in respect of it. In Dalton's case, there are at least four recorded convictions for assaulting police during the period from 1993 to 1995, together with a conviction for assault occasioning bodily harm while in company committed in June 1997. In respect of both the respondents, most of the available sentencing options have been tried in the past. They have been placed on good behaviour bonds, fined, ordered to perform community service, given suspended sentences, and sentenced to imprisonment.
- One of the appellant Attorney-General's complaints in this instance is that the sentencing judge refused to take into account some early convictions recorded against the respondents in the children's court. Section 114(1) of the Juvenile Justice Act 1992 precludes the admission, in proceedings against an adult for an offence, of evidence that the adult was found guilty as a child of an offence if a conviction was not recorded in respect of it. An exception to that exclusionary rule is created in s 114(3) of that Act, and it seems to have been the presence of this exception that led her Honour to conclude that the respondents' convictions as children were not admissible in the present instance. However, when the terms of s 114(1) are considered, it becomes clear that what is referred to there is confined to evidence of being found guilty of an offence as a child "if a conviction was not recorded". The children's court convictions sought to be tendered and relied on by the Crown at the sentencing of Dalton and Davidson were recorded, and so were not within the prohibition or exclusion imposed by s 114(1).
- The learned sentencing judge was therefore mistaken in refusing to admit or permit reliance on the evidence of the children's court convictions in the case of the two respondents. It remains true to say, as indeed was conceded by counsel for the Attorney-General on this appeal, that even if those convictions, or the findings of guilt in respect of them, had been admitted at the sentencing hearing, they would have had little influence on the sentencing outcome. Reference to the respondents' criminal record as children would not result in any material increase in the sentences imposed in this instance.
- Another particular concern of counsel for the Attorney-General on this appeal was her Honour's approach to the question of parity between these two offenders. So far as can be gathered, what happened at the sentencing hearing is that it was provisionally accepted that Dalton should be sentenced to a term of imprisonment for two years to be suspended after serving nine months. Then it was submitted by counsel on behalf of Davidson that the period of suspension in the case of his client should be reduced to six months to take account of the fact that, for the offence committed on 13 January 1998, he was already serving a sentence of 12 months, with a recommendation for parole after four months, which had been imposed on 13 July 1998 shortly after the subject offence had been committed. Because of the existing recommendation for parole under that sentence, the judge was required by s 157(3) of the Penalties and Sentences Act 1992 to make a fresh recommendation for parole in respect of the sentence that the offender Davidson was now being ordered to serve. As to that, her Honour recommended that Davidson be considered eligible for parole on or from 20 March 1999.
- It appears to have been in the course of deciding to impose that sentence on Davidson that the learned judge revised her provisional impression of the length of time that Dalton ought to serve before his sentence was suspended. Reducing the period from nine months to six months in his case was evidently designed to maintain parity with the sentence she decided to impose on Davidson. There does not, however, seem to have been any obvious reason why Davidson's sentence should not have been made cumulative on the sentence he was already serving; but her Honour expressly confirmed that it was to be concurrent with the existing sentence subject only to the parole recommendation already mentioned. The result was that Dalton may have indirectly benefitted from the fact that Davidson was already serving a sentence for another and quite separate offence.
- While drawing attention to this feature of the sentencing process, Mr Martin of counsel for the Attorney-General candidly conceded that, to alter the respondents' sentences on this appeal, would tend to create disparity in another area. Gray, who was the other offender in the trio, later received a similar sentence of 2 years to serve 6 months for his part in the assault, which, however, was aggravated in his case by the use of a bottle. The Attorney‑General has not appealed against that sentence, and to increase the sentences of Dalton and Davidson now would or might lead to a justifiable sense of grievance on their part at what would then be the lesser sentence imposed on Gray when compared with their own. While therefore submitting that the head sentence of two years taken with the order for suspension after only six months tended to underrate the seriousness of the assault on the complainant, Mr Martin accepted that it would now be difficult for this Court to alter the sentences imposed on these two respondents without creating some form of injustice at another level.
- What, in the end, counsel did ask us to review was the recommendation in favour of Davidson for parole eligibility on 20 March 1999. As has been mentioned, a fresh recommendation for parole was, by virtue of s 157(3), mandatory in his case because of the existing sentence he was already undergoing coupled with the parole recommendation in respect of it. What is at first sight less easy to understand is why her Honour selected 20 March 1999 as the time at or from which the recommendation was to operate rather than the date at which she ordered that the two year sentence to be suspended, which was 9 June 1999. As it is, we were informed that the recommendation has not yet been acted upon, so that Davidson is at present continuing to serve the first six months of the two year sentence imposed in respect of the subject offence.
- It was submitted for the Attorney-General that the recommendation for parole should be varied by deferring it to coincide with the date at which the sentence was due to be suspended. The appropriateness or otherwise of imposing a sentence of imprisonment which is suspended after a specified time and also making a recommendation for parole in respect of the pre‑suspension period of imprisonment is a matter on which the Court was not addressed at length. In R v Waters [1998] 2 Qd R 442, a majority of this Court held that, when an offender is convicted during the operational period of a sentence wholly or partly suspended under s 144 of the Penalties and Sentences Act 1992, it is not competent for the sentencing court under s 157(2) to recommend eligibility for release on parole during the period of the suspended sentence which, in consequence of that conviction, the offender is under s 147(1)(b) of the Act ordered to serve. The principal reason, as was pointed out by Pincus JA, is that, in exercising the power under s 147(1)(b) to order that the whole of the imprisonment be served, the sentencing judge is not, within the meaning of s 157(2), imposing a sentence of imprisonment but is ordering that a term of imprisonment already imposed be served: see R v Waters [1998] 2 Qd R 442, 445, 446.
- The decision in Waters did not raise the question now being considered, which is whether a suspended sentence being imposed for the first time is capable of co-existing with a recommendation for eligibility for release on parole. Plainly they cannot do so once the suspension ceases to operate and the offender is ordered to serve the sentence in full. An offender would not be able to comply with the standard conditions of parole while he is in prison; but the problem is less likely to arise in that form because s 187(1) of the Corrective Services Act 1988 expressly provides that, where a prisoner who has been released on parole is sentenced to another term of imprisonment upon conviction for an offence committed during the parole period, the prisoner's parole period shall ipso facto be cancelled, whether or not it has expired. However, for the purpose of s 187(1), a prisoner is by s 187(2) not to be taken to have been sentenced to another term of imprisonment where the liability to undergo a term of imprisonment arises only: "(e) in consequence of the term of imprisonment being wholly suspended under the Penalties and Sentences Act, part 8". From this it may be deduced that parole, and by inference perhaps also a recommendation for parole in the future, is not incapable of co-existing with a suspended sentence of imprisonment at least as long as the period of suspension continues.
- Nevertheless, as Pincus JA observed in R v Waters [1988] 1 Qd R 442, 444-445:
"It would make no sense wholly to suspend a term and accompany the order for a wholly suspended term by a recommendation of eligibility for release on parole. Nor I think would one expect a court, assuming it had power to do so, to recommend that an offender given a partially suspended sentence be eligible for release on parole after having served part of the sentence ordered to be served. But, at least as to the latter possibility, the language of s. 157(2) seems wide enough to permit the court to make such a recommendation for parole; all one can say is that a recommendation of that sort might seem odd."
With that observation, I respectfully agree. Without having in this matter heard detailed submissions on the question whether such a course is appropriate or permissible under the two Acts providing or regulating those sentencing options, I am reluctant to hold that an order partly suspending the sentence and coupling with it a recommendation for parole, as was done in the present case, is something that it is necessarily beyond the power of a sentencing judge to make.
- What at first sight does appear rather inappropriate is to make a recommendation that the offender be considered eligible for parole on a date some months earlier than the date on which the sentence of imprisonment is to be suspended. Because of s 157(3)(a) of the Penalties and Sentences Act, the learned sentencing judge in this instance was required to make "a fresh recommendation for parole relating to the period of imprisonment that the offender must serve". It may be that the early parole eligibility date of 20 March 1999 in Davidson's case was selected precisely because the parole recommendation required by s 157(3)(a) must be one "relating to the period of imprisonment that the offender must serve"; and the period Davidson had to serve under the sentence imposed was, because of the order for its suspension, limited to end on 9 June 1999. Her Honour's reasons disclose that she had it in mind that Davidson would serve his sentence only until that date, and also suggest that she accordingly fixed a parole eligibility date in deference to the obligation imposed by s 157(3)(a) to make a fresh parole recommendation in respect of the period of imprisonment that Davidson was bound to serve under the sentence before its suspension. What she said was:
"Because of the sentence I have imposed, you should be released in June. I am required to fix another date when you will be eligible for parole and accordingly I recommend that you be considered eligible for parole on 20 March 1999."
- It seems likely that in fashioning Davidson's sentence and suspending it, it was the need to maintain parity with the sentence being imposed on Dalton that formed the primary consideration. Fixing a parole eligibility date appears to have been an afterthought that would not have been undertaken had it not been for the mandatory provisions of s 157(3)(a). There is, however, no good reason now for disturbing the order suspending Davidson's sentence when doing so would simply result in the disparity with Dalton's sentence that her Honour was aiming to avoid. On the other hand, recommending eligibility for parole at a date some time before the sentence was due to be suspended has little to commend it apart from the need to comply with s 157(3)(a). In the circumstances, it is clear that, if parity was to be maintained in sentencing the respondents, little more than lip-service was capable of being paid to the mandatory requirement of that provision in circumstances like these.
- In the result, I would allow the Attorney-General's appeal in the case of Davidson by varying the date at which he is recommended to be eligible for parole from 20 March 1999 to 8 June 1999. That has the effect of formally complying with the requirements of s 157(3)(a) without disturbing the order for suspension of sentence which was evidently a primary ingredient in the penalty imposed on Davidson. It has also the merit of according with the written submission of Mr Shanahan of counsel for the respondent on appeal. For the other reasons given here, the Attorney-General's appeal against the sentence in respect of Dalton should be dismissed. The formal orders should in my opinion therefore be:
- In CA no 7 of 1999, the appeal is allowed by varying the date at which the respondent Davidson is recommended to be eligible for parole from 20 March 1999 to 8 June 1999.
- In CA no 8 of 1999, the appeal is dismissed.
REASONS FOR JUDGMENT - DAVIES JA
Judgment delivered 7 May 1999
- I agree with the reasons for judgment of McPherson JA and with the orders he proposes.
REASONS FOR JUDGMENT - FRYBERG J
Judgment delivered 7 May 1999
- The respondents are a pair of violent louts. In company with one Gray, they punched and kicked a man senseless. Each respondent has a lengthy criminal history. Each had received a suspended sentence only months before committing the offence the subject of these proceedings, and the operative periods of those sentences were still running. At the time of the offence, Davidson was 20 and Dalton 21. Each pleaded guilty. Davidson was already serving a sentence of imprisonment for 12 months for occasioning harm whilst in company and armed with an offensive weapon.
- The circumstances of the offence and of the sentencing process are described more fully in the reasons for judgment of McPherson JA, a draft of which I have had the benefit of reading. As his Honour demonstrates, the learned sentencing judge erred in principle in failing to take into account some convictions of each respondent in the Children’s Court. I also think her Honour’s discretion miscarried in relation to her approach to the question of parity as between the respondents. I agree with what McPherson JA has said on that matter. The result is that this court must reconsider the sentences for itself.[1]
- Viewed in isolation, the sentences imposed on the respondents are manifestly inadequate. Viewed in that way, head sentences of two years are the lowest imaginable in the circumstances. A partial suspension of those sentences is quite unwarranted. But as the appeal was argued, the sentences cannot be viewed in isolation. Account must be taken of the sentence imposed on Gray. That is required by the so-called “parity principle”. When regard is paid to the arguments addressed to this court, the outcome of the appeal must be as proposed by McPherson JA, for the reasons which he states.
- I very much regret this outcome. It leaves me with no confidence that justice has been done. Perhaps a repetition of this situation may be avoided by the identification of some of the factors which have brought it about.
- The respondents and Gray were not sentenced by the same judge. Apparently, they were supposed to be sentenced together, but Gray absconded. He was not brought before the District Court for sentencing until five weeks after the respondents were sentenced. Presumably it was not practicable for him to be dealt with by the same judge;[2] but it is a pity that arrangements could not have been made.
- Despite the fact that the conditions set out in s.146(1)(a) of the Penalties and Sentences Act 1992 were satisfied, her Honour did not proceed under that section. That was in contravention of the section, which requires a court to proceed under it when those conditions are satisfied. No doubt the omission was due to the failure of counsel (both of whom had the duty to do so) to draw her Honour’s attention to the situation. Her Honour evidently had a heavy sentencing list on the day. She did not get the assistance to which she was entitled.
- The Attorney-General did not appeal against the sentence imposed on Gray. We were given no explanation for this omission. Apparently it occurred by oversight. It is now too late for such an appeal to be mounted.
- This court was not provided with any information as to the basis on which Gray was sentenced. We were not even supplied with the judge’s sentencing remarks. By implication, we were required to assume that he was more culpable than the respondents, because he was convicted with a circumstance of aggravation. It is by no means evident to me that this assumption is correct, particularly when the penalty imposed on Gray was no more severe than that imposed on the respondents.
- Counsel for the Attorney-General did not seek to analyse the parity principle, nor to distinguish it. He simply conceded that in the absence of an appeal against Gray’s sentence, the present appeals were in difficulty by reason of the principle. In these circumstances it would be inappropriate for this court to undertake an examination of what is involved in the principle, or whether it requires perpetuation of error in circumstances such as the present. I would merely remark that I find it odd that a principle designed to ensure equal justice to all citizens before the law should be responsible for the dismissal of this appeal.