R v Kirby, Mitchell & Rose; ex parte Attorney-General
[2006] QCA 262
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- R v Kirby, Mitchell & Rose; ex parte Attorney-General[2006] QCA 262
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R v Kirby, Mitchell & Rose; ex parte Attorney-General[2006] QCA 262
R v Kirby, Mitchell & Rose; ex parte Attorney-General[2006] QCA 262
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | CA 100 of 2006 CA 98 of 2006 DC 13 of 2006 |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 21 July 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 June 2006 |
JUDGES: | Williams JA, Holmes JA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | In each matter, the appeal against sentence by the Attorney-General is 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 – OTHER OFFENCES – where each respondent convicted on plea of guilty of assault occasioning bodily harm in company – where each respondent arraigned on indictment which referred to the unlawful assaults of all three respondents – where complainant was off-duty police officer – where complainant was assaulted by a group including people other than the three respondents – whether there was an error of principle made in determining the appropriate sentences – whether the sentences imposed were manifestly inadequate R v Burnham and McLean [1999] QCA 99, considered R v Fortnum and Fortnum [2006] QCA 147; CA Nos 65 and 66 of 2006, 5 May 2006, cited R v Kazakoff, ex parte Attorney-General [1998] QCA 459, considered R v Melano, ex parte Attorney-General [1995] 2 Qd R 186, [1994] QCA 523 cited R v Middleton and Johns [2006] QCA 92; CA No 58 and 59 of 2006, 31 March 2006 cited R v Miller [2004] 1 Qd R 548, [2003] QCA 404, considered R v Nagy [2004] 1 Qd R 63, [2003] QCA 175, considered R v Yanner and Yanner, ex parte Attorney-General (1999) 109 A Crim R 109, [1999] QCA 515, cited |
COUNSEL: | P F Rutledge for the Attorney-General (Qld) A J Glynn SC for the respondent Rose A J Rafter SC for the respondent Kirby A Moynihan for the respondent Mitchell |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondents |
[1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Helman J wherein the issues raised by these appeals have been fully canvassed.
[2] The offences were particularly serious, involving an attack by a number of people on an off-duty policeman. The serious assaults stemmed from the complainant's attempts to arrest a female who had spat in his face because he was a police officer. Each of the three respondents had a criminal history, and one of the few factors in their favour was that each pleaded guilty to an ex officio indictment.
[3] The sentencing judge had to take into consideration the role played by each respondent in the overall assault, the different criminal histories of each, and all the other factors made relevant by the Penalties and Sentences Act 1992 (Qld).
[4] It has not been demonstrated, as the reasons of Helman J explain, that the learned sentencing judge made any error of principle in determining the appropriate sentences. Whilst the sentences in fact imposed were towards the lower end of the appropriate range, each respondent served a significant amount of time in custody in consequence of the offence he committed.
[5] I agree with Helman J, for the reasons he has articulated, that it has not been demonstrated that the sentences imposed were so outside the applicable range as to be manifestly inadequate. That does not mean that the sentences under consideration set a benchmark for sentencing where a police officer is attacked by a group of people.
[6] It follows that the appeal should be dismissed.
[7] HOLMES JA: I have read and agree with the reasons for judgment of Williams JA and Helman J and with their conclusion that the appeal ought to be dismissed. I think it is worth making this point: each of the three respondents pleaded guilty to assault occasioning bodily harm by himself and the other two respondents, with the aggravating circumstance that it was in company with other persons; not to the entirety of the assaults committed by the crowd at large. The proportions of their joint assault gained in seriousness because it was in company; because of the reinforcing presence of others. But the respondents were not charged as parties to assaults by those others; their criminal responsibility did not extend to every blow inflicted on the police officer that night. They were appropriately sentenced on that more limited basis of culpability.
[8] HELMAN J: On 9 March this year the respondents Peter Kirby, Darryl Mitchell, and Jarret Rose came before the District Court in Charleville to answer a charge under s. 339 of the Criminal Code brought against them on an ex officio indictment. It was alleged that, on 15 May 2005 at Cunnamulla, Queensland Kirby, Darryl Mitchell, and Rose unlawfully assaulted Adam Millan Martin Reedy and did him bodily harm, and that each respondent was in company with other persons. The maximum penalty provided for in s. 339 for the offence with the circumstance of aggravation alleged is imprisonment for ten years. Each respondent pleaded guilty to the charge, and, in the cases of Darryl Mitchell and Rose, to other charges. Darryl Mitchell also pleaded guilty to a charge of a summary offence of unlawful possession of the dangerous drug cannabis sativa, which was dealt with by his Honour under s. 651 of the Criminal Code. Rose pleaded guilty to one count of unlawful use of a motor vehicle and to one count of burglary alleged in another indictment presented on 9 March, and to charges of four summary offences also dealt with under s. 651: two bail offences, obstructing a police officer in the performance of his duty, and driving a vehicle other than a motor vehicle while under the influence of liquor or a drug. The learned judge reserved his decision after hearing the submissions of the Crown prosecutor and those of counsel for the accused.
[9] On 15 March 2006 his Honour sentenced the respondents. Kirby was sentenced to imprisonment for two and a half years suspended after 242 days, the period he had been in custody awaiting the determination of his case which was to be treated as time served under the sentence. The operational period of the sentence was set at four years. His Honour found that in committing the offence to which Kirby had pleaded guilty he had committed a breach of the condition of a suspended sentence of imprisonment imposed on him on 31 March 2004 in the Toowoomba District Court. On that day he had been sentenced to imprisonment for fifteen months for an assault occasioning bodily harm while armed and in company, which sentence was to be suspended after he had served five months. The condition of the suspension was that for an operational period of three years Kirby not commit another offence punishable by imprisonment. By the time he was sentenced on 15 March 2006 he had eight months of the fifteen months yet to serve because, after having served the initial five months, he had been ordered, in the Toowoomba District Court on 1 July 2005, to serve another two months. His Honour ordered that he serve the eight months.
[10] Darryl Mitchell was also sentenced to imprisonment for two and a half years, suspended in his case after 305 days, the period that he had been in custody awaiting the determination of his case which was to be treated as time served under the sentence. The operational period of his sentence was set at three and a half years. His Honour directed that a conviction be recorded for the summary drug offence but imposed no further punishment. His Honour explained the discrepancy between the sentence imposed on Kirby and that imposed on Darryl Mitchell as follows:
I appreciate that there does appear to be some inequality with the sentence that I have imposed upon Mr Kirby. He is credited with fewer days because he has already been in prison serving part of the previous sentence. That is why he appears to have served fewer days and you appear to have served longer days. That is why I have shortened the period of the suspended sentence and its operation to make some adjustment in your favour.
[11] Rose was sentenced to imprisonment for 305 days, the period that he had been in custody awaiting the determination of his case which was to be treated as time served under the sentence, and to probation for three years with, in addition to the standard requirements, a special requirement that he ‘undergo such counselling and such psychological and psychiatric counselling and treatment as directed from time to time by an authorized officer’. His Honour found that Rose had breached a condition of a probation order made on 16 March 2005 and admonished and discharged him for that breach. His Honour imposed a further probation order for two and a half years upon Rose for the six offences to which he pleaded guilty on
9 March other than the assault occasioning bodily harm in company.
[12] The Attorney-General appeals against each of the sentences on the ground that it is manifestly inadequate. In each case the reason for the inadequacy of the sentence is given as follows:
(a)It fails to reflect adequately the gravity of the offence generally and in this case in particular.
(b)It failed to take sufficiently into account the aspect of general deterrence.
(c)The sentencing judge gave too much weight to factors going to mitigation.
(d)The sentencing judge failed to take into account the circumstance of aggravation.