R v Cuff[2001] QCA 351

COURT OF APPEAL

THOMAS JA

WILLIAMS JA

HOLMES J

BRISBANE

DATE 22/08/2001

JUDGMENT

WILLIAMS JA:  This is an appeal by the Attorney-General from a sentence imposed upon the respondent who pleaded guilty to one count of occasioning grievous bodily harm.

The sentence actually imposed was 12 months' imprisonment to be served as an intensive correction order and, further, an order that the respondent pay compensation to the complainant in the sum of $10,000.  The sentence was imposed on 29 May 2001.

The charge arose out of events which occurred at a hotel in Longreach on 9 December 2000.  The complainant and the respondent were known to each other and were drinking at the same hotel though apparently not in the same group.  They both lived in Longreach.

The complainant saw the respondent wrestling with another man.  He also saw some bouncers approaching those two people.  He in turn approached the respondent and said something like, "Come on, Cuffie, settle down."

The respondent then punched the complainant in the side of his face with a closed fist causing the complainant to fall to the ground.  It appears that the respondent then picked up a chair but was restrained from any further violence.  In the circumstances, it must be said that the offence was unprovoked and it was not premeditated.

The complainant was a 22 year old man who suffered a fracture to the left side of his lower jaw.  There was associated facial swelling with that and limitation in movement of the jaw.  He required surgery to correct the fracture with plates and screws. 

He was in hospital for some few days after surgery and in fairly constant pain for three months; during that time, as his victim impact statement evidences, the injuries had considerable effect on his lifestyle.

It was of significance to the learned sentencing Judge that the respondent, a young man aged 27, had two previous convictions for assault occasioning bodily harm. 

On 2 February 1995, he was convicted in the Magistrates Court for such an offence, was ordered to pay $500 by way of compensation and ordered to perform 60 hours of community service.  No details are available as to the circumstances of that assault but it can be inferred from the details that have just been recited that it was relatively minor.

Then on 14 September 1998, he was convicted in the District Court of assault occasioning bodily harm.  On this occasion, he was fined $500.  The learned sentencing Judge was informed that that offence involved a punch in a hotel situation.

It would appear from the two previous convictions and the conviction in issue here that the respondent has a problem with anger management, particularly when he has been consuming alcohol.

As a general rule, particularly given the history to which I have referred, one would ordinarily expect the sentence to involve the serving of some actual period in custody.

The Chief Justice in the case of Dodd, CA 241 of 1998, said:

"It has been repeatedly said, and rightly, that brutal violence leading to serious injury should attract an appropriately deterrent sentence."

There can be no dispute with that.  In Dodd's case, a sentence of imprisonment of 18 months with a recommendation for parole after six months was not disturbed; but in that case there was premeditation and planning involved in the assault, factors absent here.

It is significant, in my view, that the respondent here had not previously spent any time in actual custody and he had not spent any time subject to substantial supervision.  The only supervision previously encountered was that associated with the 60 hours' community service.

A factor which undoubtedly played heavily in the thinking of the learned sentencing Judge was the offer by the respondent to pay $10,000 by way of compensation.

The evidence strongly suggests that that initial offer was made in consequence of remorse felt by the respondent for his conduct and that, to my mind, is a first indication that he realised that he had a problem with anger management which had to be addressed.

It is true, as was submitted by counsel for the Attorney-General, that a person ought not be able to buy himself out of serving a custodial sentence by paying compensation; but that does not mean that in an appropriate case the fact that compensation is offered and paid cannot be a relevant factor for the sentencing Judge to take into consideration.

Here, the learned sentencing Judge observed that the compensation offered could not be paid if the respondent was imprisoned.  That was partly because of the fact that he was in a matrimonial relationship and partially supporting that family.

It appears that immediately on the order being made on 29 May 2001, the money was borrowed from a bank with a guarantee from the respondent's parents and paid to the complainant.

It must also be acknowledged, in my view, that an intensive correction order is a severe punishment.  It imposes restrictions on the person's lifestyle for the period of 12 months and one would expect in this case that it would also ensure that the respondent was given assistance with respect to his anger management and alcohol problems.

It should also be noted that such an order is reviewable during the period of 12 months, depending upon conduct during the period.

A number of authorities were referred to in the course of submissions but I do not find any of them to be determinative of the present appeal.

Notwithstanding that some actual custodial sentence would ordinarily be called for, the circumstances here are unusual and, in my view, the circumstances do not support the upholding of the Attorney's appeal.

The compensation has been paid and it would be an additional hardship if, having incurred that obligation, the respondent was now to serve a short period in custody.

In all the circumstances, it seems to me that it would be inappropriate now to order that the respondent serve a short period of actual custody.

I regard the circumstances as unusual and certainly not such as would constitute this sentence a precedent for future application by sentencing Judges.   

In the circumstances, I would dismiss the appeal.

THOMAS JA:  I agree.

HOLMES J:  I agree with the reasons of Justice Williams and the order as proposed.

THOMAS JA:  The order will be appeal dismissed.

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