R v Neivandt[2000] QCA 224

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  I agree with the reasons of Thomas JA for dismissing the appeal against conviction.  I also agree with the order disposing of the application for leave to appeal against sentence, but for the reasons given by Pincus JA with which I agree.

2. PINCUS JA:  I agree that for the reasons given by Thomas JA the appeal against conviction should be dismissed.

3. The application for leave to appeal against sentence raises a more difficult question. We have, over the years, heard a considerable number of sentence applications where the damage caused to the victim by an assault was of only moderate severity, or brought about no permanent disability. Most of these have I think been cases in which this Court has not had to fix a sentence itself.

4. The circumstances of such cases are so variable that it is not desirable to attempt to fix a "range" within which the sentence imposed should ordinarily fall. Here the features suggesting that the custodial sentence imposed by the primary judge was appropriate were that the complainant was attacked in his shop by two people acting in concert, one being the appellant; that there is reason to think that the appellant's purpose in coming to the shop was to engage in just such an attack; that the appellant has a little criminal history; that he is certainly old enough to know that he should not behave in this fashion; and that there is no indication of remorse. But for the fact that, the appellant having been released on bail after having served 36 days, rejecting his application for leave to appeal against sentence would mean sending him back to gaol, I would have been disposed to let the sentence stand. In doing so, I would have been influenced by the indication in the 1997 amendments to the Penalties and Sentences Act 1992 that personal violence should be firmly discouraged.

5. But the situation is now such that, in my opinion, we would not be justified in returning the appellant to prison after a substantial period at liberty. I agree that the orders proposed by Thomas JA should be made.

6. THOMAS JA:  The appellant was convicted by a jury in the District Court of assault occasioning bodily harm in company.  He was sentenced to 12 months imprisonment suspended after four months with an operational period of two years.  He appeals against the conviction and seeks leave to appeal against the sentence.

7. The notice of appeal contains two grounds with particulars set out over 10 pages. These were adopted on the appellant's behalf as his outline of submissions. Counsel for the appellant did not further argue them upon appeal but none of the grounds were withdrawn.

8. The evidence shows that there had been an initial unpleasant incident in the complainant's shop at Nambour involving the appellant's son, the complainant and the complainant's wife. A little later the appellant's son came back to the shop in company with the appellant. A fight then occurred resulting in injury to the complainant.

9. Evidence was given of the circumstances and details of the assault by both the complainant and his wife. The appellant declined to speak to the police and elected not to give any evidence.

10. The evidence is that the appellant’s son, whilst inspecting a set of scales with a companion insulted the complainant's wife whereupon the complainant assaulted him by grabbing him around the throat and told him never to speak to his wife like that again. The appellant's son said "I'm going to go and get my father to get you".

11. About 30 minutes later the youth returned with the appellant who appeared very upset and agitated. The appellant immediately said "I want to talk to you about assaulting my son". The complainant invited the visitors to come with him and went to the rear of the premises followed by the appellant and the youth. Having walked through an exit the complainant said to the appellant "I hope he told you what he said to my wife". He then turned around and was struck a blow on the face by the appellant. He described it as a glancing blow with a fist. He then wrestled with the appellant. Whilst he was doing so he received numerous punches to the head, side of face and back from the youth. The complainant and the appellant continued to maintain a hold on each other during which the appellant is described as having his back to the slat wall. The two men were facing one another. The complainant described him as "doing exactly the same as me, which was trying to control me, and I was controlling him". While this was happening the youth was delivering punches. The appellant then complained about a pain in his neck and the complainant let him go. The complainant subsequently put the youth in a headlock and held him on the floor for some time. The appellant asked the complainant to let him go and in due course he did so. At the end of the assault the complainant had many bruises to his face and back and also lost part of a tooth. The complainant said in cross-examination that he did not know if the first blow (delivered by the appellant) caused any bruising or injury.

12. The complainant's wife confirmed the earlier incident and the subsequent visit. She heard her husband call "Glenny they're into me" and ran to the back. By that time the youth was punching her husband while the appellant and her husband were wedged in a doorway. She confirmed some other details mentioned by her husband and gave additional evidence of the appellant at a later stage picking up a pair of monkey grips and saying "Let my son go or I'll come back and kill you". She told the appellant not to do it and to give her the pliers, upon which he handed them to her. She was not cross-examined.

13. Evidence was obtained from Detective Brewer that the complainant, in his initial version to him, had said words to the effect that he had initially been struck from behind.

14. It is contended on behalf of the appellant that the verdict of the jury was unreasonable and/or cannot be supported having regard to the evidence.

15. The appellant correctly submits that the evidence is insufficient to justify his conviction on the footing that his personal assault of the complainant caused bodily harm. The cross-examination includes the following:

"Q:Do you say the blow that struck you in the face, the first blow, do you say that caused any of the bruising or injury?

A:I don't know".

16. The appellant further correctly contends that in order to have been found guilty he had to be either a party to the assault namely an aider under s 7 or a party to a common purpose to assault under s 8.

17. The first particular in support of this ground complains of the use of the son's statement "I'm going to go and get my father to get you". It was submitted that this was not evidence of any common purpose between the son and the appellant or of any intention of the appellant or of the appellant's awareness of his son's intention. In my view it is original evidence of a circumstance which along with other circumstances enables an inference to be drawn that the appellant and his son formed a common purpose to retaliate against the complainant. The circumstances include this threat by the son, followed soon after by his return with the appellant, the aggressive attitude displayed by the appellant notwithstanding any previous personal contact with the complainant, the initial statement by the appellant "I want to talk to you about assaulting my son", and the fact that the appellant struck the complainant without any provocation or justification.

18. In my view the evidence amply justifies a conviction under s 7. It describes two persons assisting each other as a fight progressed. There is no attack upon the learned trial judge's directions. The evidence suggests that the appellant continued to hold onto the complainant, wedging him in a doorway or against the wall whilst his son was inflicting multiple blows.

19. So far as the alternative case under s 8 is concerned the evidence, although circumstantial, is sufficient to have permitted such a case to go to the jury. Again there is no complaint made in relation to the accuracy of the learned judge's directions on that alternative ground. For my part however this is primarily a s 7 case and the evidence was adequate to support it.

20. Further complaint was made in relation to an inconsistency between the former statement to Detective Brewer and the evidence given at trial which of course was not of a blow delivered from behind. That inconsistency was a matter for the jury. In my view it was not a particularly telling inconsistency. The complainant's essential version is that the appellant had been immediately behind him, and that at a certain point in conversation he turned around and was struck by the appellant. The appellant also contended in his notice of appeal/outline that there was disputed evidence about who threw the first blow, and it was submitted that it could have been delivered by the appellant's son. In my view there is adequate evidence that the blow described by the complainant was delivered by the appellant.

21. The appeal against conviction should be dismissed.

22. The question remains whether the sentence of 12 months imprisonment suspended after four months with a 2 year operational period was manifestly excessive.

23. Both prosecution and defence submitted below that a non-custodial sentence would be appropriate. The appellant is 37 years old, married but separated from his wife. He has the care of a 15 year old boy who resides with him. He has damaged kidneys, liver and back problems. He had a troubled upbringing with a violent father. He has a minor criminal history, the only relevant entries of which are assault occasioning bodily harm in 1983 and wilful and unlawful damage to a Telecom installation in 1990. He has not previously been sentenced to any custodial term. The prosecutor submitted that the most appropriate order would be community service.

24. Plainly the person who personally caused the bodily harm to the complainant was the appellant's son. Apart from the initial punch the appellant seems to have been less involved in going on with it than his son. He is however criminally responsible for the acts of his son and, importantly, he threw the first punch. His actions were a misguided response to a complaint from his son. Instead of calming his son he escalated the matter. The complainant was a large man, five feet eleven inches tall and weighed 110 kilograms and was a person whom the trial judge described as able to give a reasonable account of himself. On several occasions during the incident the appellant urged the complainant to let go of him and later to let go of his son.

25. The simple facts upon which the sentence had to be imposed were that upon complaint from his son the appellant chose to challenge the complainant at the complainant's shop some 30 minutes after the event was reported to him. The appellant was however the prime mover in the attack, striking the complainant before he had an opportunity to defend himself. Although he supported his son thereafter, there is little evidence suggesting a desire on his part to go on with it, other than making a threat with pliers to get the headlock on his son released. When the complainant's wife asked him to give her the pliers he immediately did so. The learned sentencing judge rightly observed that it was the appellant's responsibility to deter his son from such behaviour not to lead him into it.

26. The learned trial judge considered that deterrence was an important aspect of the sentence, indicating that he wished to send a clear signal to the community that would discourage this type of behaviour. The behaviour however, whilst reprehensible, was the product of a particular situation and it is not a particularly suitable vehicle for general deterrence, unjustified though the response may have been. These factors, along with the fact noted by the learned sentencing judge that the injuries (principally inflicted by the son) were not serious, no doubt influenced the learned Crown prosecutor to make a non-custodial submission.

27. We were informed that after serving 36 days of the sentence the appellant was released on bail pending the present appeal.

28. Reference was made to Yanner^[1]where the circumstances were considerably more serious than the present ones.  Leaving aside the special features of that case arising from the payment of compensation and community service already served, the sentence suggested by the majority (18 months with a short term of between three and six months to be served) tends to suggest that the present sentence which requires the appellant to serve four months was excessive. A number of cases involving assault occasioning bodily harm were reviewed in Yanner in the course of which it was noted that a fully suspended term might be imposed particularly in the case of young offenders where the level of harm is not great.

29. The case of Moore^[2]also suggests that the present sentence was too high.  In that case a sentence was imposed of 12 months imprisonment suspended after three months for an operational period of 18 months.  That sentence is less severe than the present sentence, despite circumstances which were considerably more serious.  Moore's attack was described by the court as "vicious, cowardly and unprovoked" causing fractures of both sides of the victims' jaw and other injuries including lacerations to the right elbow, right knee and head.  It involved an assault in company in which the complainant was knocked to the ground and then further attacked including by kicking in his face.  It was not established that Moore had personally kicked the complainant but he was held to have continued the attack on the complainant by punching him when he was clearly disabled.  Moore was just under 20 years old and pleaded guilty.  Even so, the circumstances were overall more serious than those of the present matter.

30. With the above considerations in mind it seems to me that the sentence was manifestly excessive and that in the circumstances of this particular case the appropriate sentence which this court should substitute is one of imprisonment for 12 months suspended after 36 days with an operational period of two years.

31. Since preparing these reasons I have read in draft the reasons proposed by Pincus JA and McPherson JA. I feel bound to say that I would not regard the factor of sending the applicant back to gaol subsequent to his release on bail pending appeal as a reason for allowing the appeal, let alone the decisive reason. The criteria for release on bail in such a situation are clear.^[3]The main reason supporting a grant of bail in such cases is to avoid the risk, in an arguable case, that a short term of imprisonment will have been wholly or substantially served before the appeal can be heard.  In turn, applicants know that if their appeal fails they will have to serve the rest of their interrupted term.  There may be marginal cases where the period already served is so close to the appropriate sentence that the inconvenience of returning an applicant to prison might induce a court to fix that period as the time to be served, in order to avoid the inconvenience of returning an applicant to prison for a trivial period.  But I do not think the present case (36 days served out of four months) is such a case.

32. In my view the granting of such a benefit as a consequence of an applicant obtaining bail pending appeal would provide an unwarranted incentive to applicants to seek bail pending appeal which does not currently exist.

33. I would grant leave to appeal, allow the appeal and substitute a sentence of 12 months imprisonment suspended after 36 days with an operational period of two years.