SUPREME COURT OF QUEENSLAND

1. PINCUS JA:  I agree with the reasons of Thomas JA and with the orders his Honour proposes.

2. The main point in the case is that it is necessary to follow the statutory methods, if a sentencing judge wishes to deal with an offence other than those in the indictment before the Court. As Thomas JA points out, the learned primary judge did not adopt the procedure of summarily deciding a charge of a summary offence, set out in s 651 of the Code; nor were the conditions attached to use of the power set out in s 189 of the Penalties and Sentences Act 1992 fulfilled.  All that can be said in favour of the learned primary judge's mode of proceeding is that other sentencing judges have on occasion, I understand, used similar informal methods.

3. The District Court's criminal jurisdiction is of course statutory and its extent is set out principally in Div 1 of Pt 4 of the District Court Act 1967.  Subject to any provision changing that position, the District Court has no jurisdiction to "inquire of, hear, and determine" any offences other than indictable offences.  The summary offences in question here were created by statute;  in each instance it was provided that prosecution should be under the Justices Act 1886:  s 83 Domestic Violence (Family Protection) Act 1989, s 45 Traffic Act 1949.  The purpose of the learned primary judge in taking into account the outstanding summary offences was to enable his Honour to fix a single penalty appropriate for them as well as for the offence charged under the indictment before him.  But his Honour had no jurisdiction in respect of the summary offences, other than that given by the Criminal Code and the Penalties and Sentences Act 1992, as mentioned above. 

4. The circumstances that similar proceedings have been entertained by other judges and that their doing so might be thought convenient are of no legal relevance; the Court must respect the limits of its criminal jurisdiction, which cannot be altered by consent. Any expansion of that jurisdiction is a matter for the legislature, not the Court.

5. As I have said, I agree with the orders proposed by Thomas JA.

6. THOMAS JA:  The applicant pleaded guilty to assault occasioning bodily harm whilst armed.  The weapon with which he was "armed" was a coffee mug.^[1]  He was sentenced by a District Court judge to 12 months imprisonment to be suspended after three months with an operational period of two years.  In addition, it was ordered that he be disqualified absolutely from holding a driver's license.

7. The circumstances are very unusual. On a Saturday afternoon two vehicles were driving in the same direction along Redbank Plains Road at Goodna. The applicant was driving his wife in his vehicle and the complainant was in the front passenger seat of her boyfriend's vehicle. There was a road incident leading to the driver of the vehicle in which the complainant was a passenger blasting his horn, swearing at the applicant and making an insulting gesture described as "giving the finger" to the applicant. Both vehicles continued to drive at a moderate speed (about 48 kilometres per hour) but the applicant then drove alongside the passenger side of the other vehicle and threw a coffee mug at it. The mug struck the complainant in the head before ricocheting and disintegrating on the road. The blow resulted in what was described as a bump. The injury was described as relatively minor. She was said to have "a small scar" as a result, and to have suffered from headaches during the following summer months. The applicant's registration details were supplied to the police leading to his apprehension after a considerable delay for which he was not accountable. When interviewed he readily made relevant admissions. He gave an early indication of his intention to plead guilty.

8. The proceedings before the sentencing judge were complicated through mention of two summary bench charge sheets pending against the applicant. One was for driving whilst disqualified, which arose out of the same incident. The other was for breach of a domestic violence order which was of course unrelated. Questions arose as to whether they should be left for the magistrate to deal with or whether they should be taken into account on the present sentencing procedure. His Honour initially indicated that they might as well stay with the magistrate. Later in the proceedings his Honour indicated, with respect to the disqualified driving that "This is one incident. It speaks for itself" and "I will say that I've taken that into account". A discussion ensued about the applicant's driving and the Crown Prosecutor submitted that the fact that the incident took part whilst the applicant was in a moving motor vehicle should be taken into account. Submissions were then made on disqualification of the applicant from holding a driver's license. His Honour commented "It is really a bit silly to send that one back to the magistrate too. Can't I take that into account?" Subsequently in his sentencing remarks his Honour stated "I have taken into account the two summary offences, and I think it is unnecessary for anybody to concern themselves over most of them in the other court."

9. The reference to taking into account the two summary offences is perplexing, because no circumstances concerning the breach of the domestic violence order had been mentioned to his Honour, and neither the Crown Prosecutor nor the defence counsel asked that it be dealt with or considered. It is difficult to tell what his Honour considered he was taking into account, or what effect it may have had on the overall sentence. I note however that his Honour's associate in due course endorsed the bench charge sheets in respect of the disqualified driving charge and the domestic violence breach as having been "taken into account with indictment No 141/00".

10. In addition to the concern already expressed, a deal of confusion seems to have existed in relation to the way in which the summary offences were to be used, both during the proceedings and in the records of the respective courts of the orders that were made. The order for disqualification from holding a driver's license was not endorsed on the indictment. The only sentence recorded as being imposed on that indictment was the suspended sentence of imprisonment. However his Honour's associate wrote an endorsement on the bench charge sheet in relation to driving whilst disqualified – "This summary matter taken into account with indictment No 141/00 * disqualified from holding a driver's license absolutely." As earlier mentioned the bench charge sheet in respect of contravening a domestic violence order was also endorsed. It is clear that his Honour did not exercise the power which s 651 of the Code gives to "hear and decide summarily" these matters as summary charges.  Apparently the necessary papers to enable this to be done were not in Court, and although the Crown Prosecutor initially asked that the disqualified driving matter be "heard" along with the charge in the indictment, this was never proceeded with, and counsel seem to have acquiesced in his Honour's suggestion that it should be taken into account. It is also clear that the procedure prescribed by s 189 of the Penalties and Sentences Act which enables outstanding offences to be taken into account in imposing sentence, was not followed.  No list was prepared or filed or certified by the court nor was any plea taken.  If that procedure had been followed, the official record of it having been so dealt with would be in the form of a certificate filed with the indictment in the District Court, certifying the offences that had been taken into account in imposing the sentence recorded on the indictment.

11. Jurisdiction existed under s 187 of the Penalties and Sentences Act to disqualify the applicant from holding a driver's license, as the offence was "in connection with or arising out of the driving of a motor vehicle by the offender".^[2]  Such an order could, if appropriate, have been made as an additional part of the sentence imposed on the charge contained in the indictment.  That however was not done.  

12. In the circumstances the sentencing process miscarried and the records of the respective courts do not reflect the only lawful way in which an order for disqualification could have been made. The orders should be set aside and this court should re-sentence the applicant de novo.

13. The applicant was 38 years of age and had migrated from Western Samoa a little over 10 years ago. He has two children and supports his family through his employment, a fact which was supported by a favourable reference from his employer. He has a limited criminal history with no previous convictions for violence. The history is limited to unlawful carnal knowledge in 1996 (for which some imprisonment was imposed), a breach of the Bail Act and unlawful use of a motor vehicle in 1998.  He also has an unsatisfactory history of traffic offences which presumably led to a disqualification for driving for a period of 10 months, which was in force when the present offence was committed. 

14. After serving five weeks of his sentence the applicant was admitted to bail pending the appeal and has been re-employed.   

15. The main point at issue is whether a custodial sentence is appropriate in the circumstances, and if so at what level.

16. Not surprisingly no comparable cases can be found. Counsel for the Crown submitted that by driving alongside the other vehicle at 48 kph the potential for collision was high. That however is not a factor that can be taken into account in justification of the sentence. The true aggravating factor in relation to throwing the mug during the driving is its high potential for damage to the occupants of the other travelling vehicle. It was therefore a reckless act and it is fortunate that greater damage was not in fact caused. The fact that he was driving whilst disqualified suggests he is a person with little respect for the law. The fact that whilst doing so, instead of behaving circumspectly he acted as aggressively as he did suggests good reason why he should not be driving at all.

17. This is an appropriate case in which the court should exercise its power under s 187 of the Penalties and Sentences Act to impose a disqualification from holding or obtaining a driver's license.  Although the summary charges remain, it is fair to point out that the disqualified driving charge obviously arose out of the same incident, and that the imposition by this court of an absolute disqualification suggests that any penalty in respect of that offence should be concurrent.  In the light of this it will be for the prosecuting authorities to decide whether any further action is warranted in respect of that matter.

18. Although the circumstance that he was driving when he committed the assault was a relevant matter, it was important that the applicant not be sentenced for dangerous driving, as he had never been charged with that offence.^[3]   In his sentencing remarks the learned judge stated "Here we are again driving a motor vehicle at nearly 50 kilometres per hour throwing a missile into another motor vehicle which could easily have resulted in peoples death".

19. It will be appropriate then that attention be concentrated upon an appropriate sentence in respect of the charge in the indictment namely assault occasioning bodily harm whilst armed. Counsel for the Crown correctly submitted that the victim was an unoffending young woman and that "road rage" incidents such as this need to be deterred.  Having said this, so far as the assault is concerned not a great deal of harm was caused.  That of course helps to keep this case toward the lower end of seriousness in cases of assault occasioning bodily harm with a circumstance of aggravation. 

20. To support the sentence counsel for the Crown referred to Scoffin v Hearn CA 520 of 2996, 15 April 1997 and Gillam v Payne CA 144 of 1997, 17 June 1997.  In Hearn a sentence of nine months was upheld for an assault upon a passenger in a moving car when Hearn punched her in the right eye.  Hearn was a 32 year old man with a dreadful criminal record including offences or convictions in every year since 1981 and including many assaults.  It is of no assistance in sustaining the present sentence.  In Payne a sentence of 12 months imprisonment with a recommendation for parole after four months was upheld.  In that case the court described the hallmark of the case as "sustained serious violence".  The violence in question was committed upon his de facto wife and included a sustained struggle in which he twisted her arm behind her and kicked her "a large number of times" when she fell to the ground.  He was wearing work boots.  She suffered a fractured wrist and other injuries.  Again, that case is of little assistance.

21. There are no truly comparable cases, but the level of seriousness in Ward CA 245 of 1998, 18 September 1998 and Bean CA 95 of 1999, 26 August 1999 seems closer to that of the present conduct.  Ward assaulted a female companion with whom he had lived for a number of years after a dispute about property.  She was trying to get into a car when he pushed her against it and struck her several blows to various parts of her body including her face.  Her injuries were notably greater than those in the present matter, and included a swollen lip, bruising to three fingers, bruising to other parts of the body and aggravation of a pre-existing back injury.  On appeal the sentence of nine months imprisonment, suspended after three months for an operational period of three years was varied by the sentence being suspended forthwith.  The offender had spent five days in custody. 

22. Bean committed an assault after his own 21st birthday party.  He approached the victim near his car, punched him with a closed fist causing him to fall to the ground, and then (in company with another person) kicked him and stomped on his ankle.  The victim suffered a fractured fibula and could not return to work for eight weeks.  The offender had a good work record and did not have any relevant previous convictions.  He was convicted of assault occasioning bodily harm with a circumstance of aggravation, namely being in company with another person.  On appeal the sentence of 12 months imprisonment, wholly suspended for an operational period of three years, was reduced through reduction of the operational period to 18 months.  Obviously that was a more violent and sustained assault than the present one and it produced greater harm to the victim.

23. It is not necessary to catalogue many other cases to which this court has been referred in this and in other recent cases concerning the appropriate level of sentence in cases of assault occasioning bodily harm, with or without a circumstance of aggravation. Such cases present difficulties because they are at the periphery of matters which require an offender to serve imprisonment. By definition they tend to be cases where the harm to the victim is of limited consequence and where the conduct of the offender is commonly not as violent as in cases where more serious damage is inflicted.

24. The essential features of the present case are that the offender has some previous convictions but none of violence, he is employed and supporting a family, the offence was very reprehensible but of short duration, the harm was of limited effect, the applicant indicated an early pleas of guilty and the court intends, as part of the sentence, to order under s 187 that he be disqualified absolutely from holding or obtaining a driver's licence. In these circumstances despite the seriousness of the applicant in subjecting the occupants of the other vehicle to the risk of very serious harm, I do not consider that any further custodial sentence is warranted. As he has served a little over five weeks the appropriate sentence in my view is imprisonment for 12 months, suspended after five weeks, with an operational period of two years. In addition there should be an order for disqualification as earlier mentioned.

Orders

25. The application should be granted and the appeal allowed. The sentence below should be set aside. It is further directed that the endorsements placed upon the summary charge sheets at the Inala Magistrates Court file No 995750 and 998650 be removed. In lieu it is ordered that the applicant be sentenced to imprisonment for 12 months suspended after five weeks for an operational period of two years. It is further ordered that the applicant be disqualified absolutely from holding or obtaining a driver's license.

26. WILLIAMS J: I have had the advantage of reading the reasons for judgment prepared by Thomas JA and Pincus JA.  I agree with the order proposed by Thomas JA, generally for the reasons he has stated.  However, because of questions raised as to the procedure followed by the learned District Court judge I desire to make some additional comments.

27. As established by the reasons of Thomas JA, the learned District Court judge did not follow the procedure set out in s 651 of the Criminal Code in dealing with the summary offences.  For that reason it was entirely inappropriate for his Associate to endorse orders on the Bench Charge Sheets (or copies thereof) which he had.  Clearly in the circumstances he was not entitled to make any order, including an order disqualifying the applicant from holding or obtaining a driver’s licence, on the basis that the charge of unlicensed driving was before him.

28. It is also clear that he did not adopt the procedure provided for in s 189 of the Penalties and Sentences Act 1992.

29. For the reasons given by Pincus JA it is desirable that wherever possible the formal procedure provided for by s 651 of the Code be followed.  When that is done the summary charge is formally dealt with and the defendant to it would be able to plead autrefois convict if called upon in the future to answer the charge.

30. But, despite best endeavours on all sides, occasionally matters come on for sentence before that procedure has been complied with; the summary charge sheets are not available to the sentencing judge.

31. A good example is provided by the following set of facts (a scenario familiar to Trial Division judges). Following a drug raid a person is charged with the offence of possessing marijuana to which he intends pleading guilty in the Supreme Court; he is admittedly a user of the drug. As a result of the same raid he is also summarily charged with being in possession of a pipe used in connection with the smoking of marijuana. The sentence comes on in the Supreme Court before the procedure provided for by s 651 has been complied with, but the offender wants the summary charge to be taken into consideration. It would be an inexcusable waste of public resources to adjourn the sentence until such time as that procedure had been complied with. In those circumstances the practice is often followed of proceeding with the sentence, and making the penalty appropriate to the overall criminality of the offending conduct (possession for his own use). Having determined the appropriate sentence the judge then states that the sentence imposed for possessing marijuana has been fixed having regard to the associated circumstance that the offender was in possession of a pipe used in connection with the smoking of that drug.

32. Where the summary offence was clearly associated with the conduct constituting the indictable offence (as in the example outlined) there would be no infringement of the principle discussed in R v D [1996] 1 Qd R 363.

33. If that informal procedure was adopted there would be no plea of autrefois convict available and, notwithstanding the sentencing judge’s remarks, it would be open to the prosecution to proceed with the summary charge.  If that happened undoubtedly the magistrate dealing with the matter would have regard to what was said at the time of sentencing for the indictable offence and may well not impose any additional penalty.  Because of that consideration prosecuting authorities often do not proceed further with the summary charge in the light of the remarks made on sentencing for the indictable offence.  In the circumstances that is an appropriate exercise of a prosecutor’s discretion.

34. The sentencing judge in the present case fell into error as demonstrated by the reasons of Thomas JA and therefore the sentence must be set aside. But I do not regard the setting aside of that sentence as establishing or indicating that there is anything improper in adopting the informal procedure referred to above in appropriate circumstances. Generally speaking for that procedure to be appropriate the summary charge would have to be associated with the indictable offences, and the offender would have to specifically request that the summary charge be taken into consideration. Further, it must be recognised that the critical observation of the sentencing judge is not binding on the prosecutor. If such a procedure could not properly be implemented in appropriate cases there would be additional costs and delays occasioned to the administration of criminal justice in this State.

35. I agree with the orders proposed.