The Queen v Anlezark[1999] QCA 380

COURT OF APPEAL

McPHERSON JA

DERRINGTON J

CHESTERMAN J

CA No 207 of 1999

THE QUEEN

v.

STEPHEN PATRICK ANDREW ANLEZARKApplicant

BRISBANE

DATE 09/09/99

JUDGMENT

McPHERSON JA: The applicant was convicted on his own pleas of guilty in the District Court at Ipswich of one count of assault occasioning bodily harm and another of obstructing police. He was sentenced to imprisonment for 18 months for the assault and two months to be served concurrently for the other offence of obstructing the police.

The commission of those two offences had the consequence of activating an earlier suspended sentence of 12 months' imprisonment imposed by Judge Botting in October 1998 in respect of two counts of assault occasioning bodily harm with a circumstance of aggravation.

The effect of the sentence of 18 months imposed on this occasion, which was ordered to be served cumulatively upon the 12 months' sentence so activated, therefore was to produce an effective two and a half year head sentence; but Her Honour, in sentencing on this occasion, also made a parole recommendation in respect of the 18 months' sentence to the effect that the applicant be eligible for consideration for parole after serving four months of the sentence imposed.

The principal offence, which was committed on 14 February 1999, involved a protracted assault upon a young woman with whom the applicant had been in a relationship for several years. They had a son, aged three and a half years at the time, who was present and asleep in the house when the assault occurred. 

The assault took place when the applicant, who had been drinking at the house most of the day and was intoxicated, objected to being told by his brother that he was too drunk to visit his parents' house. It can fairly be described as the by-product of drunken rage arising out of the applicant's state of mind or intoxication rather than the result of any conduct on the part of the complainant which led to the event for which he was sentenced.

The applicant pushed and shoved the complainant in various rooms around the house. He did so with considerable force and threatened her, with the result that she was put in not inconsiderable fear for herself and no doubt also for her child.  She suffered some bruising and scratches but no significant or lasting physical injury. Her victim impact statement says or implies that the hurt she sustained was mainly emotional rather than physical.

The applicant's conviction for these offences had the consequence, as I have said, of raising for consideration the activation in whole or in part of the suspended sentence imposed by Judge Botting in October 1998. That sentence was attributable to two offences of assault occasioning bodily harm with circumstances of aggravation. They involved a brawl in a house in which the applicant was a visitor and, during the course of that visit, he apparently decided to settle some scores with those present resulting in the violence which gave rise to the two charges. 

On the occasion on which the applicant was sentenced by His Honour Judge Botting, a psychologist's report by Hilary V Lennon dated 15 October 1998 was tendered at the sentence hearing. That report was also produced on the occasion on which the applicant was sentenced for the offences now under consideration. The report discloses that the applicant had, what can only be described as an extremely unfortunate experience as a youth, when he was preyed upon by a paedophile ring. This has naturally had some lasting consequences for him, and the learned Judge on this occasion properly took it into account. It is, however, right to say that the natural sympathy and goodwill that attaches to a person who has suffered in this way has a tendency, over time, to exhaust itself as succeeding offences are committed. It cannot, in any sense, be regarded as a licence to continue committing offences in the future.

As Her Honour observed in the sentencing remarks on this occasion, many people in our community, sadly, are the victims of brutal and cruel childhoods, but not all of them turn into violent offenders.

The personal circumstances of the applicant, apart from that particular misfortune, are that he was born on 31 October 1975, and so was 23 years of age at the time of the offences and of the sentence in this case. He has some prior criminal history.  In March 1993 he was sentenced in respect of an armed robbery in company to probation for three years, although in his submissions before us (where he appeared in person) the applicant said - and, no doubt, correctly, having regard to the sentence - that his part in that incident was a very small one.

In November 1994 he was fined for drug offences. In January 1997 he was fined for behaving in an indecent manner, and in October 1998, as I have said more than once, he was sentenced to a sentence of 12 months' imprisonment suspended for three years in respect of the two assaults occasioning bodily harm, with circumstances of aggravation, to which I have already referred.

The application before us is based essentially on the ground that the sentence imposed by the learned Judge in this instance is manifestly excessive. As I see it, the application really raises two questions about the sentences imposed or their impact. The first is whether the  suspended sentence imposed by Judge Botting should have been activated either wholly or in part. As to that, s. 147 of the Penalties and Sentences Act confers on the later sentencing Court only a limited range of options in dealing with a repeat offender during a period of suspension. In particular, s. 147(2) requires the Court, under section 147(1)(b), to order that the offender serve the whole of the suspended period of imprisonment unless the Court is of the opinion that it would be "unjust" to do so.

In the present case the circumstances are that the substantive offence was committed relatively soon after the applicant was sentenced by Judge Botting. It was, again, an offence of assault occasioning bodily harm, which left very little opportunity for avoiding an order that the offender serve the suspended term of imprisonment. It could scarcely be said to be unjust to order that the applicant serve out the full period of suspension, especially having regard to the express warning given to the applicant by Judge Botting of the likely result of the applicant's re-offending during the suspension period. What His Honour said on that occasion was that, "If you" - that is the applicant here today - "continue to commit violent acts, then it seems to me the Courts will have to imprison you for longer and longer periods, if, for no other reason, than to protect the community."

It is noteworthy that on the sentence hearing in the present case, counsel who was then appearing for the applicant quite properly acknowledged that he was in difficulty in attempting to argue that the suspended sentence should not be served. 

This leaves, as the only other point in this application, the issue of whether the duration of the cumulative extra sentence imposed for the subject offences is excessive. This was the matter on which the applicant himself focussed in his submissions before us. 

The assault was, as I have said, prolonged. It was committed on a woman in her own home and in the presence of a sleeping child. As assaults go, it was not a particularly violent one and it appears to have left no permanent physical, as distinct from emotional, consequences. The learned sentencing Judge tempered the effect of the 18 months sentence imposed by her recommendation for parole after a period that was short. If the recommendation is given effect, it will mean that the applicant will serve very little extra time in prison for these offences when account is taken of the time already spent in detention of some 103 days.

It nevertheless remains true that 18 months cumulative on the other sentence represents a heavy penalty for an assault of this character and consequences. Usually sentences of that order or duration are reserved for assaults of a more serious or of a more physically painful nature.

The recommendation for parole does not wholly cater for this feature of the offending conduct because the applicant remains exposed to the risk that the recommendation may in the end not be given effect. The duration of the head sentence is for that, and possibly other reasons, a relevant factor in considering an application like this. After giving the matter some reflection, I have concluded that the head sentence is sufficiently lengthy to justify the decision that it is excessive in all the circumstances. I would, accordingly, reduce it.

The application and appeal should, in my view, be allowed to the extent only of reducing the sentence of imprisonment from 18 months to six months. I would not otherwise interfere with the sentence imposed or, I should perhaps add, specifically, with the recommendation for parole, which will accordingly remain in force. That is the order that I would make in disposing of this application.

DERRINGTON J: I agree.

CHESTERMAN J: I agree.

McPHERSON JA: The order will be as I have stated it; that is to say, that the appeal will be allowed to the extent of reducing the sentence from 18 months to six months, and the other orders will remain in place. Do you understand the effect of that?

APPLICANT: Yes, I do.

DERRINGTON J: The recommendation for parole remains at four months.

APPLICANT: Yes, sir.

McPHERSON JA: We have no control over that, incidentally. We make the recommendation. It is for the prison authorities to act on it or otherwise as they see fit, but the recommendation is there, and in practical terms, as I understand it, your having been in detention for 103 days means that there will be not much time to serve on the six month sentence if the recommendation is given effect. Is that understood?

APPLICANT: Yes. Thanks, Your Honour.