The Queen v Moore[1999] QCA 172

COURT OF APPEAL

PINCUS JA

DAVIES JA

CHESTERMAN J

CA No 57 of 1999

THE QUEEN

v

MOORE, Jeffrey Allan

BRISBANE

DATE 14/05/99

JUDGMENT

DAVIES JA: The applicant pleaded guilty in the District Court on 2 March this year to the offence of occasioning bodily harm in company on 8 February 1998.

He was sentenced on the following day to 12 months' imprisonment, suspended after three months for an operational period of 18 months. He seeks leave to appeal against that sentence.

At the time of commission of this offence, the applicant was just under 20 years of age and is now 21. His only previous conviction had been for a breach of a domestic violence order, the breach not consisting of physical assault but of a refusal to leave. This was in May 1997.

However, he committed further offences between the date of this offence and the sentence, consisting of assaulting a police officer and using threatening words. He was convicted and fined in respect of the first of those offences.

The circumstances of the assault the subject of this appeal were as follows. The complainant was living in a de facto relationship with a woman who had previously been in a de facto relationship with the applicant and had borne the latter a child who was aged 18 months at the time of the offence.

There had apparently been a previous suggestion by the applicant that the complainant had hit the child and he had challenged the complainant about that.

On the night in question, the complainant and two friends went to a local service station to get some food. The applicant was also at the service station with two other persons. On that occasion, the applicant offered the complainant an apology for his earlier accusation.

However, after the complainant and his friends had left, the applicant called out for him to stop and talk about the matter. The complainant and his friends continued to walk up the street whereupon the applicant ran towards the complainant calling out "Wait up, cunt.  I want to talk to you." He repeated this demand, caught up to the complainant, grabbed him by the shoulder, turned him round and punched him.

One of the applicant's companions then also hit the complainant in the side of the head whereupon he fell to the ground. Whilst on the ground, the complainant was further attacked including by kicking in his face. The applicant did not admit to taking part in the kicking and the learned sentencing Judge, after hearing evidence, was not satisfied to the required standard that he kicked the complainant.

However, his Honour did conclude that the applicant played a part in the continuing attack on the complainant, when he was clearly disabled.

I assume that that means he continued to attack the complainant when he was on the ground by punching him, and that was conceded before us today. Certainly, he did not discourage his companion from kicking the complainant in the head.

The complainant was hospitalised for three days. He suffered fractures of both sides of the jaw for which he underwent an operation.  He also suffered lacerations to the right elbow and right knee, and a cut and lump to his head. It is fortunate that he was not in the circumstances more seriously injured.

There is no doubt that the applicant's attack on the complainant was vicious and unprovoked and it continued after the complainant was clearly disabled and on the ground.

In support of this application, the applicant seeks to rely on the fact that this was not a random attack of violence. There was a relationship it was said, between the applicant and the complainant which underline a reason, even if a mistaken one, for the attack.

I do not think there is any substance in this argument. That the parties previously knew one another is in my view irrelevant to the nature of the attack which was, as I have said, vicious and cowardly and unprovoked.

Indeed, there appears to be plainly no reason for it because as I have already said a short time beforehand, the applicant had apologised to the complainant for the accusation which he had previously made against him.

The applicant also submits that the learned sentencing Judge gave no apparent weight to the plea of guilty, the lack of serious prior criminal history, the applicant's age and good work record and his problem with alcohol and his attempt to overcome it.

However, there is no reason to think the Judge had no regard to these matters. It is true that the facts of the applicant's age and absence of previous convictions of any substance, are relevant, factors. However, they are not as important as they once were.  Especially with respect to offences involving violence.

The principle that a sentence of imprisonment should only be imposed as a last resort and one that allows an offender to stay in the community is preferable, are no longer applicable to such offences.

Other changes which have been made in the last few particular the increase in the maximum penalty for offence to 10 years, indicates that these offences must be treated with increased seriousness.

That is not to say that the applicant's age and absence of previous substantial convictions are not relevant factors.

The learned sentencing Judge also referred to lack of control and problems with alcohol but neither of these are mitigating factors.

The sentence which was imposed, which as I have said was one of 12 months imprisonment suspended after three months for an operational period of 18 months, was not, in my view, outside the appropriate range. On the contrary, having regard even to the earlier authorities, given under a regime which was more lenient to applicants of this kind than the present one, the sentence would not, in my opinion, have been outside the range. I would therefore refuse the application.

PINCUS JA: I agree and would add only this, that but for the change in the legislative environment, the submissions made by Mr Devereaux might have had some slight prospect of success.  The statutory treatment of such offences however, makes it impossible, in my view, to conclude that the sentence imposed was excessive.  Indeed it appears to me to have been a proper sentence and I would dismiss the application, also.

CHESTERMAN J: I agree with the result and with the reasons given by both my brothers.

PINCUS JA: The application is refused.