The Queen v George[1999] QCA 459

COURT OF APPEAL

McMURDO P

DAVIES JA

WILLIAMS J

CA No 285 of 1999

THE QUEEN

v.

FREDERICK REGINALD GEORGE

(Applicant) Appellant

BRISBANE

DATE 02/11/99

JUDGMENT

WILLIAMS J:  This is an application for leave to appeal against sentence.  On 4 August 1999 the applicant pleaded guilty in the District Court at Normanton to three charges on an indictment.  The first alleged that on 19 March 1999 he assaulted a police officer whilst acting in the execution of his duty.

The second charge was that on that date he unlawfully assaulted that police officer and did him bodily harm and at the time was in company with another.  The third charge was that on that day he assaulted a man named Adcock, who was acting in aid of the police officer while acting in the execution of his duty.

He also pleaded guilty to four summary offences but they need not be regarded further for present purposes.  The sentence that was imposed on the three indictable offences was nine months imprisonment with a recommendation that he be eligible for parole after serving three months.  The application is based on the ground that that sentence was manifestly excessive.

The circumstances giving rise to the offences can be shortly stated:  the applicant, Frederick George and his brother Reginald were in the pool room area of the Central Hotel in Normanton when they were asked to leave.  They refused to leave and the police were called.  Constable Lanigan arrived and had a conversation with the two brothers on the footpath outside the hotel. The applicant, Frederick George, used insulting words and was arrested on that charge.  The police officer took the applicant by the arm and at that stage the prisoner pulled away and then punched the police officer with his right closed fist to the left side of the police officer's face, just above the eye.

Photographs have been tendered which show a bruise to that area.  That was count 1 on the indictment.  Thereafter, both the applicant, Frederick George, and his brother Reginald punched the police officer about the body on a number of occasions.  That gives rise to the second count on the indictment.

A man by the name of Adcock was in the Central Hotel bar area when he saw what was taking place and went to act in aid of the police officer who was being assaulted by the two brothers.  The applicant, Frederick George, punched Adcock on a number of occasions and on one occasion, raised his knee and hit the man Adcock in the nose with the knee.

Adcock also received an injury to the area of his left eye.  That is count 3 on the indictment.  The applicant, Frederick George, does not have any prior criminal convictions.  He is aged 25 and it is commendable that in the Normanton area, he has reached that age without any prior convictions.

He has been in a de facto relationship since 1996 and had a young child aged five months at the time of sentence.  He has been working four days a week and receiving a wage of $339 a week before tax.  All of that indicates that there are good chances for his rehabilitation. It should be said that Reginald George, who is younger and  was aged 20 at the time, does have a significant criminal history.  He had two prior convictions for assaulting police and three prior convictions for obstructing police. 

He, that is Reginald, pleaded guilty to offences of bodily harm namely striking the police officer, escaping from lawful custody, behaving in a disorderly manner and obstructing a police officer.  The learned sentencing Judge imposed the same sentence on each of the two brothers so far as the indictable offences were concerned.

As I have said, Reginald did have a more significant criminal history but Frederick's involvement in the offence was more serious.  He was the one who assaulted each of the two persons who were injured.

On the hearing of this application counsel for the Director of Prosecutions referred the Court to two previous decisions of this Court.  Brown and Wicks against Fischer CA Number 63 of 1994 Judgment 17 May 1994 and the Queen against Bond CA Number 48 of 1994 Judgment 21 April 1994. 

Fischer pleaded guilty to assaulting two police officers occasioning them bodily harm.  The injuries there were, if anything, more serious.  One police officer sustained bruising over the right eye and to the third and fourth ribs.  There was also some muscle strain in the left shoulder.  The other suffered multiple bruising to the forehead, bruising to the region of the jaw, to both sides of the chest, to the left shoulder and both knees. 

There the assailant was aged 20 and did have a prior criminal history which included breaking and entering with intent.  He was sentenced to six months' imprisonment in the first instance and that was reduced on appeal to three months' imprisonment with two years' probation.

Bond was a fairly similar factual situation to the present case though there the incident was more serious.  It involved an assault on police officers outside a hotel in Murgon.  There were two charges of assault occasioning bodily harm and at the time being armed with a dangerous weapon.  The weapon was a piece of a tree trunk. 

The sentence there was three months for each of the bodily harm charges but those penalties were made cumulative.  The applicant had a criminal record which was regarded as moderate.  It included convictions for damage to property which the Court said showed some propensity to violence.  The injuries to the police officers were described as moderate, not very serious injuries.  The Court there regarded the totality, namely six months' imprisonment, as not being excessive and did not interfere with the sentence.

In the circumstances, it seems to me that the sentence imposed here cannot be supported in the light of the decisions in Fischer and Bond and so much was ultimately conceded by counsel for the Director. 

In this case there were early pleas of guilty.  There were indications of remorse on the part of the applicant and in my view the head sentence of nine months cannot be supported.  It is manifestly excessive. 

In the circumstances, leave to appeal should be granted. The sentence imposed should be set aside and in lieu thereof it should be ordered that the applicant be sentenced to six months' imprisonment to be suspended after serving three months with an operational period of nine months.

THE PRESIDENT:  I agree.

DAVIES JA:  I agree.

THE PRESIDENT:  The orders are as proposed by Mr Justice Williams.  Mr George, do you understand what has happened?  Mr George, are you there?

APPLICANT:  Yes.

THE PRESIDENT:  Do you understand what has happened?

APPLICANT:  Can you explain it to me, please?

THE PRESIDENT:  Yes.  Your appeal has been allowed.  Your sentence of nine months' imprisonment has been reduced to six months' imprisonment and it is to be suspended after you have served three months, so that should mean, as you were sentenced on 4 August, that it is suspended within a few days.  You will have to stay out of trouble upon your release for a further six months to make sure that you don't have to serve the rest of the six months' sentence.

APPLICANT:  Yes.

THE PRESIDENT:  It will be hanging over your head, do you understand?

APPLICANT:  Yes.

THE PRESIDENT:  All right then.  You can hang up now, that's the end of that matter, Mr George.

APPLICANT:  Bye.