R v Couchy[2006] QCA 5

SUPREME COURT OF QUEENSLAND

CHIEF JUSTICE:  On 28 July 2004 the applicant was subjected to a 12 months intensive correction order which included the usual requirement that he not commit another offence during that period. 

The order was made in respect of offences of assault occasioning bodily harm, going armed so as to cause fear, and a second assault occasioning bodily harm while armed committed on a separate occasion.  Those offences involved a breach of previously granted probation.

Over the preceding seven years the applicant had accumulated convictions for assaulting police, assault occasioning bodily harm on two occasions, common assault and breaches of a domestic violence order, among other convictions. 

Then on 21 January 2005, when less than half way through the term of the intensive correction order, the applicant, with two other men, assaulted the complainant occasioning him bodily harm. 

The sentencing Judge described what was delivered to the complainant as being a good hiding.  The complainant was left with bruising and abrasions to the head and upper part of his body, a broken front tooth, broken ribs and other injuries.  The explanation is that the applicant was apparently punishing the complainant because of the delivery of a bad batch of amphetamines. 

The applicant pleaded guilty to that offence.  He was then 25 years old and a father of three children.  His plea came late in the day.  When he was sentenced, the applicant apologised in writing to the complainant who was a 32 year old man. 

The learned Judge sentenced the applicant to 12 months imprisonment suspended after four months for an operational period of three years for the assault occasioning bodily harm in company which had been committed on 21 January 2005.  The applicant does not and sensibly could not complain of that.  The Judge also rightly declared 48 days pre-sentence custody as time served under that sentence.

What the applicant complains of is the circumstance that the Judge acting under s 127 of the Penalties and Sentences Act 1992 (Qld) ordered that prior to serving that sentence of 12 months imprisonment suspended after four months, the applicant be imprisoned for 187 days being so much of the 12 months intensive correction order term as was unexpired when he committed the later offence on 21 January 2005.

In the written material previously put before us the essence of the applicant's contention was that he had been thereby treated too harshly.  It was submitted that the Judge should have imposed a fine for the breach of the intensive correction order proceeding, for example, under s 126(4), or that he should have imposed a term of imprisonment of no longer than two months.  See also s 123 and s 125(3).

A fine was indeed the recommendation of the Community Correctional Officer who supervised the applicant's performance under the intensive correction order.  The applicant, it may be observed, actually went on to complete his obligations under the intensive correction order after his release on bail and the Correctional Officer gave the applicant a favourable report.

That was drawn to the attention of the sentencing Judge who rightly pointed out however that the recommendation of the Correctional Officer was not binding on him. 

It emerges that the Judge decided to proceed under s 127 essentially because of his view that the commission of the offence on 21 January 2005 amounted to what he termed "a fundamental breach" of the intensive correction order.  As he said, that offence was similar to those which led to the intensive correction order, it was a serious assault, and it was committed less than half way through the period of that order. 

Furthermore, that he committed this serious offence about half way through the term of the intensive correction order suggests that its rehabilitative effect was, at least to that stage, unsuccessful. 

Mr Moynihan this morning has submitted that because the applicant completed his obligations under the intensive correction order he has in the result been doubly punished.  That is the consequence, he submitted, of a failure on the part of the sentencing Judge to have proper regard for s 126(6) which obliged the Judge to have regard to anything done by the applicant to comply with the intensive correction order. 

The Judge did have regard to what was done by the applicant in that regard, but plainly considered the significance of the re-offending to warrant his proceeding under s 127.

It is important to note that s 127, in authorising imprisonment for the unexpired term of the order, provides that that may occur "whether or not the order is still in force".  In other words, it contemplates the order which was made here in these particular circumstances. 

I consider that the course taken by the learned Judge was open and appropriate.

In the end, as Mr Martin submitted, the reality of the sentence, an obligation imposed on the applicant to serve an overall 10 months imprisonment for a range of offending spanning a period, even allowing for the completion of the intensive correction order, was if anything lenient.  I would refuse the applicant.

WILLIAMS JA:  I agree.

KEANE JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.