R v Porter[2002] QCA 59

SUPREME COURT OF QUEENSLAND 

[1] MCPHERSON JA:  I have read and I agree with the reasons of Williams JA.  I agree with the orders he proposes for disposing of the appeal and the application.

[2] WILLIAMS JA: The appellant, who appeared on his own behalf, was convicted on his own plea of:

(i)burglary – being in a dwelling house in the night with intent to commit an indictable offence in the dwelling;

(ii) assault occasioning bodily harm whilst armed with an offensive instrument namely a metal bar.

He was sentenced to 2 years imprisonment cumulative upon a 7 ½ month sentence already being served, and a recommendation was made that he be eligible to apply for post prison community based release after serving 15 ¾ months of the total sentence.  

[3] The charges arose out of incidents which occurred on 10 March 2000.  Consequent upon the events which occurred that night the appellant was charged with the above offences and also:

(a)with an additional circumstance of aggravation to the assault charge that he was in company with other persons;

(b)armed robbery in company.

[4] When called upon on 28 August 2001 he pleaded not guilty to the charges (a) and (b).  After a short adjournment the prosecution accepted the pleas of guilty noted above in full discharge of the indictment.

[5] It appears that earlier attempts to have the indictment dealt with by the court had resulted in adjournments because of confusion as to whether or not the appellant was going to plead guilty, and the unavailability of the complainant.  The confusion as to the intention of the appellant to plead is probably explained by what happened on 28 August 2001.  On balance it appears that the appellant at all times intended pleading guilty to the charges to which he did so plead on 28 August; the contention was really with respect to the other charges which ultimately did not proceed.

[6] It also seems abundantly clear that the complainant was a reluctant witness.  It appears that he was in custody on 28 August 2001 and that was the only reason he was available to give evidence if required. 

[7] Against the background of what had occurred between the presentation of the indictment and 28 August 2001 the learned sentencing judge commented in his sentencing remarks on what he perceived to be the appellant’s lack of cooperation in the administration of justice; he said that that indicated some want of remorse on the appellant’s part.  More significantly he went on to say that one of the applications for an adjournment was “a hypocritical one” and that it was the “accused’s humbugging” that had prevented the matter coming on for trial promptly. 

[8] In light of all the material those observations were uncalled for.  An accused person is entitled to take legitimate forensic advantage from the non-appearance of a complainant, and the material was not sufficient to justify the observations made by the learned sentencing judge.  The language is of some significance because it was linked in the sentencing remarks to a lack of remorse on the part of the appellant.

[9] The remarks also raise questions as to the allowance made in the sentence for what the sentencing judge ultimately described as a “timely plea”.  One also must have concern as to the significance of those observations in the learned sentencing judge ultimately reaching the conclusion that there was “not the slightest suggestion of remorse that would entitle you to an allowance.”

[10] The notice of appeal formally appealed against conviction despite the pleas of guilty.  It became obvious that the appellant’s concern was with the conviction for burglary when he did not break into the house and did not steal anything.  When the definition of burglary was explained to him he accepted the conviction and the matter proceeded only as an application for leave to appeal against sentence on the ground that it was manifestly excessive.

[11] It is now necessary to detail some of the events of 10 March 2000.  The appellant, a man aged about 29 years at the time, had lived next door to the complainant, a man aged about 39, for some months prior to the date in question.  It appears that a house had been divided into two apartments or flats.  For some of that period the appellant’s girlfriend Kate lived there with him.  On sentence counsel for the appellant placed some background material as to the relationship between the appellant and complainant before the court.  In broad terms that indicated there was animosity between them.  The sentencing court was told that the complainant had a lengthy criminal record, including convictions for assault, and about three weeks before the incident in issue the complainant had attacked the appellant with a cricket bat in the course of an argument.  But the detail of the relationship then outlined to the court was significantly less than that contained in the written statement which the appellant handed to this Court on the hearing of the appeal.  However this Court must, as was pointed out to the appellant during argument, consider only the material that was placed before the court at first instance.  As already stated, that indicated there was hostility between the complainant and defendant, and more specifically that the appellant blamed the complainant for the fact that the appellant and his girlfriend had to vacate the premises.

[12] In the course of the day of 16 March 2000 it appears that the appellant was moving his possessions out of his premises.  At about 10pm that evening he went to the complainant’s dwelling and requested a drink of water.  The complainant apparently invited him into the house for that purpose.  The appellant then picked up a piece of iron pipe which was on the veranda of the complainant’s premises and struck the complainant some 10 to 15 times with it.

[13] A medical report from the Princess Alexandra Hospital listed the complainant as sustaining the following injuries:

1.left periorbital haematoma and subconjunctival haemorrhage;

2.bilateral anterior tibial haematomas with superficial abrasions left anterior

tibial region;

3.large haematoma left knee with marked joint swelling/effusion with possible ligamentous/capsular damage;

4.multiple contusions thoracolumbar region and right flank and fracture right twelfth rib;

5.fracture mid shaft right ulna and bilateral contusion/abrasions forearm.

[14] It would appear that in addition to the blows with the iron pipe the appellant punched the complainant on some occasions. 

[15] It can thus be seen that the assault occasioned serious injuries to the complainant. 

[16] On the hearing of the appeal the appellant sought to explain his conduct on the ground that he was in fear of the complainant and delivered what might be described as a pre-emptive blow.  That fear was related back to the assault with the cricket bat.  The point was emphasised below and here that this was not a pre-mediated attack in that the appellant did not go armed to the complainant’s dwelling.

[17] It appears the appellant has had a good work history.  After completing grade 10 at Kedron High School he completed a TAFE course in engineering and construction work.  He then became an apprentice plumber and has worked reasonably regularly as a plumber since 1988.  He also has qualifications as a drainer and gas fitter.  On sentence it was said that the appellant “has a reasonable work record” but that has to be qualified by a matter to which I will refer later.

[18] The appellant does have an appalling record of traffic offences.  He has been convicted of driving whilst disqualified on a number of occasions and indeed has on two separate occasions received a custodial sentence (one wholly suspended) with respect to such offences.  Apparently he was convicted of driving whilst disqualified on 10 October 2000 (after the date of the offences with which the court is now concerned) and sentenced to 12 months imprisonment.  Though the position is not entirely clear it appears that he appealed against that sentence to the District Court and in August 2001 it was reduced to 7 months.  He had also been convicted of an associated offence of failing to appear in the Magistrates Court and initially sentenced to imprisonment for 3 months for that.  Again on the appeal in August 2001 that was reduced to 14 days.  Those two sentences make up the 7 ½ months imprisonment on which the sentence now in question was made cumulative. 

[19] Apart from the traffic history the appellant has convictions for some minor drug offences and also a conviction on 5 November 1997 for breaking and entering a dwelling house and assault occasioning bodily harm.  The background to the November 1997 offences was before the sentencing judge.  It appears the appellant had been living with a woman in a de facto relationship for some time but it had reached the stage where she had obtained a domestic violence order against him.  He returned to the dwelling in which they had previously resided one evening, let himself in using a key which he still retained, found his former partner in bed with another man, and struck that person with a teapot.  He was dealt with in the District Court for those offences; no conviction was recorded, and he was ordered to perform 75 hours community service.

[20] Two further matters should be noted with respect to the criminal history.  Firstly, on 11 March 1999 he was dealt with in the Magistrates Court for disqualified driving.  On that occasion he was sentenced to 6 months imprisonment, but the sentence was wholly suspended for a period of 2 years.  Secondly, on 26 May 1998 he was convicted of disqualified driving on 11 April 1998 and fined $1,500.  On 9 November 1998 he applied for a fine option order with respect to that penalty, and he was ordered to perform 200 hours community service.  Then on 10 June 1999 his record shows a breach of that fine option order was proven and it was revoked.  Nothing else appears in the criminal history, nor was said in the course of the sentencing hearing, as to the nature of the breach or why the fine option order was revoked.

[21] Those two matters are of some significance because of statements made in the course of sentencing the appellant.

[22] In his sentencing remarks (and indeed on two earlier occasions in the course of argument) the learned judge said that the offences in question were committed “a mere five days” after the imposition of the wholly suspended six months period of imprisonment.  It seems clear that that stated circumstance caused the learned sentencing judge to consider the appellant’s conduct on 10 March 2000 to be more reprehensible.  However, the true position is that the suspended sentence was imposed on 11 March 1999, some one year and nine days prior to the commission of the offences in question. 

[23] In his sentencing remarks the judge referred to the $1,500 fine and its conversion into a fine option order; he incorrectly stated that to be 240 (rather than 200) hours community service.  He then went on:  “You showed that work was probably one of the first words you crossed out of your dictionary when that order had to be revoked.”  That comment was entirely unjustified because there was nothing before the sentencing judge indicating the reason for the revocation.  It is sufficient for present purposes to say that there was no basis justifying the comment made by the judge, but it should be noted that in this Court the appellant indicated that he sought the revocation because his work commitments were not permitting him sufficient time to complete the community service work and he was in a position to pay out the balance of the fine.  That explanation should not be completely overlooked because it was given on the first opportunity the appellant had occasion to put forward an explanation. 

[24] The appellant is understandably concerned as to the impact of both those errors on the determination of the sentence imposed on him.  An impartial observer would have difficulty in reconciling the statement that the appellant “has a reasonable work record” with the gratuitous comment that work was crossed out of the appellant’s dictionary.

[25] Those concerns about the sentence are compounded when it is noted that emotional language is used throughout the sentencing remarks.  Despite the seriousness of the crime there was no justification for describing the appellant as “a spoilt brat”, “like the standard coward”, and “not only a deliberate liar, but a persistent liar”.  The use of that language has to be placed in the context of the other emotive statements referred to previously herein.  Given the factual errors, the unsubstantiated conclusions, and the emotive language the appellant is justifiably concerned that the sentencing process miscarried. 

[26] The observation must be made that the language referred to ought not be used by a judge when sentencing.  It is clearly likely to cause an offender to believe that the judge is biased against him and sentencing on an emotional basis.  As this case demonstrates such language used by a sentencing judge can precipitate an appeal.  However, this Court must review the sentence purely from a legal perspective.  The relevant considerations are the facts establishing the offences, the antecedents of the appellant, and mitigating factors such as the plea of guilty.

[27] The assault was a particularly bad one.  Some 10 to 15 blows were delivered to the complainant’s body using an iron pipe.  The complainant suffered serious injuries including fractures to a rib and his forearm.  Particularly when such an assault took place in the complainant’s home a significant custodial sentence was called for.  However, the offence must be distinguished from that where a person (or what is more usually the case a number of persons) armed before hand invades a home with intent to cause someone serious harm.  Here there was a background of hostility between neighbours, and the complainant had a short time before seriously assaulted the appellant.  The reluctance of the complainant to give evidence (or a victim impact statement) probably confirms at least to some extent the appellant’s allegations against the complainant.

[28] Whilst the earlier offence in November 1997 was bad, involving as it did a breach of a domestic violence order, it does not demonstrate a propensity to violence in the appellant.  His very bad driving history demonstrates anti-social behaviour, but his overall criminal record is nowhere near as bad as that frequently associated with offenders who commit offences of the type in issue here.

[29] The appellant has to be given credit for his timely plea of guilty and there are also other considerations relevant to the issue of mitigation.  As I understand the material, the appellant only began serving the custodial sentence for the disqualified driving on the day he was sentenced for these offences.  In real terms the cumulative sentence the appellant is now serving is his first custodial sentence.

[30] Further, I have reached the conclusion that the finding of the learned sentencing judge that there was “not the slightest suggestion of remorse” was significantly influenced by the errors and gratuitous findings to which I have already referred.  When all the material placed before the sentencing judge is carefully considered and analysed, when some weight given to the appellant’s explanations for the various aspects of his conduct which was the subject of consideration on sentence, and when due weight is attached to his “timely plea”, I am of the view that at least some remorse was demonstrated and credit should be given for that.

[31] It was certainly not inappropriate to make the sentence for these offences cumulative upon the 7 ½ months to be served for other offences.  When comparable cases are considered it cannot be said that a head sentence of 2 years imprisonment for these offences was manifestly excessive.

[32] However I have come to the conclusion that when the mitigating factors are given their proper weight a recommendation that the appellant have eligibility to apply for post prison community based release should have become effective at an earlier time than 15 ¾ months of the total sentence.  Given the errors in the sentencing process which I have identified in these reasons it is appropriate to interfere even though the variation could be regarded as minimal.  All the matters discussed herein justify and warrant amending the recommendation so that the appellant would be eligible to apply for post prison community based release after serving 12 months of the total sentence.

[33] The orders of the court should therefore be:

1.Appeal against conviction dismissed.

2.Application and appeal allowed to the extent of varying the recommendation to one of eligibility to apply for post prison community based release after the applicant has served 12 months of his cumulative sentence.

[34] BYRNE J:   I agree with Williams JA.