R v Tufuga & Kepu; ex parte Attorney-General
[2003] QCA 171
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- R v Tufuga & Kepu; ex parte Attorney-General[2003] QCA 171
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R v Tufuga & Kepu; ex parte Attorney-General[2003] QCA 171
R v Tufuga & Kepu; ex parte Attorney-General[2003] QCA 171
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDINGS: | Sentence Appeals by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 2 May 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 April 2003 |
JUDGES: | McMurdo P, Williams JA and Holmes J |
ORDERS: | Appeals by the Attorney-General dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondents convicted of various assaults on two complainants – where assaults a disproportionate reaction to earlier provocative driving by one of the complainants – where neither complainant seriously injured – where respondents had impeccable backgrounds and unblemished records – whether sentences imposed manifestly inadequate Dinsdale v The Queen (2000) 202 CLR 321, cited |
COUNSEL: | M J Copley for the appellant |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant |
[1] MCMURDO P: I agree that the appeals should be dismissed for the reasons given by Williams JA.
[2] WILLIAMS JA: The respondent Tufuga was sentenced after pleading guilty on 21 February 2003 to six months imprisonment on one count of wilful damage, 18 months imprisonment on one count of assault occasioning bodily harm in company, and four months imprisonment on one count of common assault. The sentences were ordered to be served concurrently, and were suspended after serving three months thereof with an operational period of 18 months.
[3] The respondent Kepu was sentenced after pleading guilty on the same date to 12 months imprisonment on one count of dangerous operation of a motor vehicle, nine months imprisonment on one count of wilful damage, two years imprisonment on one count of assault occasioning bodily harm in company, six months imprisonment on one count of common assault, and nine months imprisonment on one count of assault occasioning bodily harm. The sentences were ordered to be served concurrently, and were suspended after serving five months thereof with an operational period of two years.
[4] From those sentences the Attorney-General appeals to this court contending that they were manifestly inadequate.
[5] The charges arose out of an incident which occurred on 5 May 2001. The complainants, males named Cipkar and Anderson, were travelling in a Magna vehicle towards the city along the South-East Freeway at about 9.30pm. Kepu, with Tufuga as a passenger, was driving a vehicle in the same direction along that stretch of roadway. There were incidents involving those two vehicles whilst they were some distance back from the Gaza Road exit.
[6] It was submitted to the learned sentencing judge that it was not necessary for him to adjudicate on the question who was at fault with respect to those incidents, but it is tolerably clear, and this appears to have been accepted by the learned sentencing judge, that the initial blame rested with Cipkar. In broad terms it appears that Cipkar’s vehicle from the left cut in front of that being driving by Kepu and then, after travelling in the lane to the right of Kepu’s vehicle, cut back again clipping the rear driver’s side of Kepu’s vehicle with the front passenger side of the Magna. That caused the rear of Kepu’s vehicle to slide and necessitated him taking measures to regain control before it crashed. Subsequently Cipkar’s vehicle travelled too close behind that being driven by Kepu, and when Kepu touched his brakes there was a second impact between the vehicles. Only minor damage was caused in each incident. As the Magna drove past Kepu’s vehicle there was a verbal exchange.
[7] Near the Gaza Road exit roadworks were being carried out and there was a traffic policeman on duty. Kepu stopped and reported the incident to that police officer, apparently giving him the registration number of the Magna. That police officer indicated he could not leave his post but said he would take the matter further.
[8] Kepu and Tufuga had noticed that the Magna had exited the freeway along Gaza Road and they followed it. There is no suggestion that they did so at high speed. Kepu’s vehicle caught up with the Magna on Nursery Road, a two-lane road catering for traffic in each direction. Kepu drove alongside endeavouring to force the Magna to stop. It did not do so and Tufuga leant out of the passenger-side window and struck the windscreen of the Magna four times with a tyre lever. The windscreen was damaged; that constituted the charge of wilful damage to which each pleaded guilty. The driving in Nursery Road constituted the dangerous operation of a motor vehicle to which Kepu pleaded guilty.
[9] Cipkar did not stop but did a u-turn, driving back along Nursery Road with Kepu following. Ultimately Cipkar drove the wrong way up the Gaza Road exit ramp onto to the freeway. Kepu followed.
[10] When Cipkar stopped his vehicle, Kepu stopped behind. Kepu alighted from his vehicle, kicked the passenger-side window of the Magna, and broke off the mirror on that side of the vehicle. Tufuga opened the driver-side door of the Magna and threw a punch at Cipkar but missed. He then dragged Cipkar out of the car by the neck. Kepu kicked Cipkar in the back whilst he was on the ground. He was also kicked by Tufuga. Cipkar did not lose consciousness but remained on the ground. It was that conduct which constituted the charge of assault occasioning bodily harm in company to which each respondent pleaded guilty.
[11] A traffic controller associated with the roadworks endeavoured to get between Tufuga and Cipkar but he was hit by Tufuga and pushed away by Kepu. That gave rise to the charge of common assault.
[12] Kepu then returned to the vehicle where Anderson was in the back seat. Kepu punched Anderson in the nose causing it to bleed. That was the charge of assault occasioning bodily harm to which Kepu pleaded guilty.
[13] Cipkar was taken to hospital where it was noted that two of his teeth were chipped. His jaw was sore and stiff for a week. He suffered other bruising. Anderson suffered a laceration to the nose and bruising around the eyes.
[14] The incident was colloquially described as a “road rage” and is another example of violence in the public place. Given all the circumstances the offences, though serious, were essentially a disproportionate reaction to earlier provocative driving by Cipkar.
[15] The really surprising aspect of this case is that both Tufuga and Kepu, not only had no previous convictions, but each had been a highly respected and regarded member of the community to that point of time. Numerous references testified to their standing in the community.
[16] Tufuga was 26 years of age and Kepu 38 at the time the offences were committed. Each had a good work history and everything pointed to the fact that neither would be likely to commit such serious offences again.
[17] Kepu is a married man with four young children aged 8, 6, 5 and 3. He has always provided for the family and the impact of his having to serve five months imprisonment is obvious. Recently he has been employed as a sound engineer, and in addition he has been actively involved in the community. He was in a position to offer compensation of $1,000.00 but no specific order was made in that regard on sentence. In relation to the dangerous operation of a motor vehicle charge Kepu was disqualified from holding or obtaining a driver’s licence for a period of 12 months; that means that for some seven months after his release from prison he will be unable to drive a motor vehicle. Again that will have significant impact on him and his family.
[18] Tufuga is living in a de facto relationship with a woman who has two children aged 13 and 7 from a previous relationship. Tufuga has a child aged 7 by his ex-wife; she has custody of the child although he often has care of the boy. He has worked in a variety of jobs, and at the time of sentence was assistant manager in a poultry processing plant. In the past he has worked from time to time in the security industry, and that is no longer an option available to him. Also he has been involved in many community activities.
[19] The respondents made full admissions to the police with respect to their respective roles and timely pleas of guilty were entered.
[20] This is a case where the remarks of Pincus JA in R v Amituanai (1995) 78 A Crim R 588 are apposite; there he said that the punishment may depend upon the extent of the damage the victim happens to sustain. Generally in the criminal law a blow which by good luck has caused little damage will attract a lower penalty though there was a risk of it causing catastrophic results. Here it is fortunate that neither Cipkar nor Anderson was seriously injured and that is a relevant factor when it comes to sentence.
[21] Counsel for the Attorney-General conceded that there were no earlier decisions which could be regarded as setting the range for offences of this type committed in the circumstances of this case. The most serious of the charges, that of assault occasioning bodily harm in company, would ordinarily call for a head sentence in the range of 18 months to three years imprisonment; those figures should not necessarily be taken as rigidly fixing the upper and lower limits. In a case such as this the mitigating factors, particularly the previous exemplary character and early pleas of guilty, must lead to a significant moderation in the sentence. But, as was recognised by the learned sentencing judge, the offences looked at in total were so serious that it was necessary for each of the offenders to serve some actual time in custody. Requiring a 40 year old man with no previous convictions and a good work history to serve five months in actual custody is not a light sentence. The same can be said for the three months Tufuga is obliged to serve.
[22] As I have said on a number of occasions the offences were serious but the task of sentencing was made difficult because of the personal circumstances of the offenders. It is certainly unusual to have men with such unblemished records facing charges so serious as this.
[23] I am not persuaded that the head sentences imposed in this case were manifestly inadequate. They were, in my view, within the broad applicable range. If there was to be any variation it would be in the period each offender had to serve in actual custody before the head sentence was suspended. Bearing in mind the principles relating to appeals by an Attorney-General which are of particular significance in a case such as this (Malvaso v The Queen (1989) 168 CLR 227 at 234 and Dinsdale v The Queen (2000) 202 CLR 321) I have come to the conclusion it would be inappropriate to vary by a relatively small amount the time each offender had to actually serve in custody.
[24] Given all of the matters to which reference has been made in these reasons I am of the view that, whilst the sentences imposed are towards the lower end of the applicable range, they are justifiable particularly given the fortunate circumstance that neither complainant was seriously injured and the impeccable backgrounds of the offenders prior to the commission of these offences.
[25] In the circumstances the sentences in fact imposed are not manifestly inadequate.
[26] The appeals by the Attorney-General should be dismissed.
[27] HOLMES J: I agree with the reasons for judgment of Williams JA and the orders he proposes.