The Queen v Bean[1999] QCA 359

COURT OF APPEAL

PINCUS JA

McPHERSON JA

CHESTERMAN J

CA No 95 of 1999

THE QUEEN

v.

CHRISTOPHER ROY BEANApplicant

BRISBANE

DATE 26/08/99

JUDGMENT

CHESTERMAN J: On 23 February 1999 after trial in the District Court the applicant was convicted of assault occasioning bodily harm to Darren Flood on 21 April 1996.

The applicant was then 21 years of age and had only a slight criminal history. He had been convicted in January of 1996 of possessing a dangerous drug and of a pipe used in connection with smoking the drug, no doubt cannabis. For the assault he was sentenced to 12 months imprisonment, the term to be wholly suspended for an operational period of three years. A conviction was recorded.

The applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive. It is contended that the appropriate punishment would fall within a range from a nominal fine to an order that the applicant undergo probation or perform community service. It is submitted that no conviction should have been recorded.

The offence was committed in a street near the applicant's family's home late at night. The applicant together with members of his family and friends had been celebrating his 21st birthday at a football club. The complainant had been one of the guests.  When the party finished a number of the party goers returned to the family home. At the house the complainant behaved disagreeably towards the applicant's mother and sister. The sister responded by pushing a tart into the complainant's face. He abused her and the applicant came to her defence. He was heard to say, "What's a 21st without a fight," and then aimed a number of kicks at the complainant, none of which connected.

The assailants were separated but a man named Johnson, who was also accused with the applicant of assaulting Flood, came to blows with the complainant. They fell to the floor where each continued to throw punches at the other. They too were separated.

The complainant left the house and walked off with some other guests to a motor car parked outside the home and some short distance up the street. After an interval the applicant approached the complainant and punched him with a closed fist to the right side of the face.  Flood fell to the ground whereupon both the applicant and Johnson kicked him. The applicant stomped on the complainant's right ankle as he lay on the road. The applicant and Johnson then left.

Mr Flood suffered a fractured fibula, the smaller bone in the lower leg, just above the level of the ankle. As well he had bruising to the back of his head, a laceration on the inside of his lip and a graze to his right elbow. The fracture was treated by immobilisation in a slab which remained in place for about six weeks. The complainant could not return to work until after 2 July 1996.

The charge against Johnson was dismissed at the committal proceedings. In passing sentence the Judge said,

"You have shown no remorse at any time. This was a cowardly and vicious attack upon your victim. You and another man were involved. I am satisfied that he was lying on the ground, that you and another man kicked and punched him whilst he was on the ground. I am satisfied that you then stomped on his leg. You were wearing shoes. I am satisfied his leg was broken as a result of your stomping on his leg."

His Honour then noted that the applicant had no previous convictions of relevance and he should be sentenced on the basis that the offence was committed without the circumstance of aggravation of being in company with Johnson. His Honour then continued:

"This is a serious matter. There was no provocation. I note that this was your 21st birthday party. The victim was intoxicated.  He behaved in a very offensive manner at the party. That is an explanation. It is not an excuse."

The applicant had a good work record. He and the complainant had been friends until the party. The applicant's submission that the sentence is manifestly excessive relies upon its disparity with the sentences imposed by this Court in The Queen against Walsh, Sayer and Thompson, an appeal by the Attorney-General against the inadequacy of sentences imposed for assault occasioning bodily harm inflicted while in company. It is submitted that the applicant had been sentenced to a more severe penalty for a less serious offence.

Walsh, Sayer and Thompson were young men in their early twenties who became involved in a hotel brawl. The complainant had instigated hostilities by striking Sayer a severe blow. The brawl then developed, a number of the people involved moved outside the hotel where fighting continued.  Among them were the complainant and the three accused. What happened was described as "a serious, bad example of assault occasioning bodily harm". The behaviour was characterised as three very angry, aggressive young men behaving in a violent, loutish and cowardly way towards the complainant who lay unresisting on the ground where he was kicked and punched repeatedly.

The three accused were all previously of unblemished character.  Each was a professional man without previous convictions. The sentencing Judge fined two of them $3,000 each and the third $4,000 without recording convictions. On appeal each was ordered to be imprisoned for six months, the imprisonment to be wholly suspended for an operational period of 12 months. Convictions were recorded. The penalty was in addition to the fines that had been earlier imposed.

There are points of distinction between that case and this. Those three accused pleaded guilty, there were indications of remorse, none had a previous criminal conviction. The applicant here has the conviction for possession of drugs.

We were referred to other cases, particularly Ward CA 345 of 1998 and Payne CA 144 of 1997. Of the two Ward is closer to the facts of the present case but there are of course points of distinction between this and those, some of which appear to make this worse, some of which make it less serious. In Ward a period of imprisonment of nine months wholly suspended was imposed. In Payne 12 months imprisonment with a recommendation for parole after four months was imposed.

The offence in question, that of assault occasioning bodily harm, can be committed in a variety of circumstances so it is not surprising there is a wide range of penalties that have been imposed by the Courts. True comparisons are difficult. There are no exact parameters in sentencing and a degree of discrepancy will often, perhaps usually, be found between sentences for similar offences.  Exact consistency is impossible to achieve. This case was rightfully described as serious and cowardly. The sentencing Judge was entitled to think it deserved a significant penalty. However, it does appear that the length of the operational period may be excessive. I would myself give leave to appeal against sentence, allow the appeal to the extent only of reducing the operational period from three years to 18 months.

PINCUS JA:  In Mr Ryan's argument he said in effect that Walsh, Sayer and Thompson stands as authority for the proposition that even in a very bad case of assault occasioning bodily harm one should not impose a custodial sentence. The offence in question was committed on 21 April 1996, that is it was committed before the relevant penalty was raised as it was in 1997 from three years to seven years and it was committed before the legislature in 1997 had expressed itself with respect to this particular offence and other similar offences in Part 9A of the Penalties and Sentences Act, that is the case of Walsh, Sayer and Thompson and indeed this case can hardly be regarded as authority with respect to the new sentencing regime which began on 1 July 1997.

But to return to Mr Ryan's contention it cannot be the law that very serious cases of assault occasioning bodily harm were before that date regarded so lightly by the Court that a custodial sentence was beyond the range. The legislature had set otherwise. It imposed a maximum penalty of three years.

I agree with Mr Justice Chesterman's view that the circumstances of these offences vary substantially and therefore it is difficult to compare one with the other.

Nevertheless, I must say for myself that the treatment which was meted out to Walsh and others appears to have been of a kind which some might think to be merciful. I agree with the reasons which Mr Justice Chesterman has given subject to the observations I have added and I also agree with His Honour's view as to the order which should be made.

McPHERSON JA: I also agree both with the reasons and the order proposed. The case is one which differs a little from many of the other cases which we see of this kind, in that the drunken or rowdy party which had been taking place in the house to which the young men had gone was, so far as one can see, at an end as far as the complainant was concerned when the assault ensued.

The complainant had walked off with a number of others to a motor vehicle parked on the other side of the road from the residence where the party had been taking place; and the position or place where the assault occurred was approximately two to three houses up the street. 

The complainant was standing against the motor vehicle, when the applicant suddenly appeared and punched him with a closed fist to the right side of his face causing him to fall to the ground. According to witnesses both the applicant and Johnson then commenced kicking the complainant in the face, the head and other parts of his body whilst he was on the ground.

They then saw the applicant stomp down on the complainant's right ankle with one of his legs. Both offenders then left the scene. The case therefore seems to be one in which the previous scuffle had come to an end, and in which the applicant followed the complainant out to the car and began another scuffle or engagement with him, and then deliberately injured him by stamping on his right ankle.

The result was, as has been pointed out, a fractured distal fibula, as well as other minor injuries. For my part, I think that the sentence was one which could not fairly be described as excessive to the circumstances and the injury sustained in the way and on the occasion I have described.

The application for leave to appeal should be allowed to the extent only that has been specified by Mr Justice Chesterman.

PINCUS JA: The orders of the Court will be application granted, appeal allowed only to the extent specifying 18 months rather than three years as being the operative period of the suspended sentence otherwise the sentence is confirmed.