SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  I have had the advantage of reading the reasons of Holmes JA. I agree with her Honour’s reasons and with the orders proposed by her Honour.

[2]  HOLMES JA: The applicants were jointly charged with, and pleaded guilty to, one count of assault occasioning bodily harm in company. Each was sentenced on 8 August 2007 to 18 months imprisonment with a parole release date fixed after six months, and each seeks leave to appeal against that sentence.

[3] A schedule of agreed facts was put before the sentencing court.  From it, it emerged that on the evening of 25 May 2006, the two applicants were drinking at Lude’s house with two other young men, Booth and Emery, when they decided to go and buy more alcohol.  On their return journey, they were travelling along Hastings Street, Noosa in Lude’s Holden, driven by Booth, with the applicant Love hanging out of the window and shouting.  The Holden turned round a roundabout and headed back down Hastings Street for a reason which is not entirely clear, but may have been because there was some verbal interchange with the occupant or occupants of another car.  The Holden pulled up next to a taxi rank. Love got out of it and ran towards the other car, which was parked opposite. It was driven off; Love yelled abuse and kicked the back of the vehicle as it departed.  According to his solicitor’s submission on sentence, he had simply wanted to speak to the occupants and was angered because the vehicle had driven very close to him. 

[4] Love then exposed his buttocks before running back across the street to the taxi rank, where he began to punch and kick one of the waiting vehicles. The complainant, the driver of the taxi behind the one being attacked, got out of his vehicle to remonstrate with him.  Love punched him in the head and continued to punch him in the face.  Meanwhile, Lude and Emery emerged from the car and Lude joined the assault, punching and kicking the complainant.  Other taxi drivers came to the complainant’s aid and the attack ended. 

[5] The applicants were interviewed later that evening.  Love admitted to punching the complainant “fair in the head” and hitting him a couple of times after that.  He recalled Lude elbowing and kneeing the driver and “sort of wrestling” him.  Lude claimed not to recall much because of his intoxication.  He said that he could have punched the complainant, but could not remember. A videotape of the incident was tendered on sentence, but it was of extremely poor quality and did not shed any further light on the sequence of events.

[6] The complainant was examined by a general practitioner the following day.  He had a laceration to the bridge of his nose, which was tender, and the nasal septum was deviated to one side.  Both of his eyes were blackened.  His neck, lumbar spine and ribs were tender and his chest was bruised.  In a victim impact statement he said that his upper denture plate was broken and he had cuts on the inside of his mouth.  The incident had caused him several days off work and he had become apprehensive when picking up passengers who appeared to have been drinking.

[7] The solicitor who appeared for both Lude and Love on sentence submitted that the two were significantly intoxicated at the time of the offence, because they had been celebrating Love’s return to the Sunshine Coast after a year living elsewhere. They had both considerably curtailed their consumption of alcohol since. When they had become aware that the police wanted to speak to them later in the evening on which the assault occurred, they tried to make contact with the police. They ultimately took part in interviews and made admissions.

[8] The applicant Love was 20 years old at the time of the offence and 21 years old at the time of sentence.  He had a minor criminal history.  On 17 June 2005 he was dealt with in the Magistrates Court on one charge of committing a public nuisance, one of assaulting a police officer and another of obstructing a police officer.  In respect of all, he was convicted and fined $300.00.  On 19 January 2006 he was fined $100.00 for breach of a bail undertaking, but no conviction was recorded; and on 9 March 2006 he was fined $150.00 for contravening a direction or requirement, but again no conviction was recorded. 

[9] Love was single without children.  His solicitor said that he had suffered from some physical abuse as a child and had experienced depression when he was a teenager.  He tendered a reference from a previous employer at a retail outlet where Love had worked for two years; it spoke favourably of his performance.  Another document confirmed his employment as at October 2006 as a casual employee at the Port of Brisbane.  He had worked in that employment, according to his solicitor, for seven and a half months (presumably until a couple of months before the sentence) and was currently enrolled in a TAFE course in business. 

[10] The applicant Lude was 21 at the time of the offence and 23 at sentence.   When he was 17, he was badly burned in a car accident in which his cousin was incinerated despite his attempt to rescue him.  His solicitor tendered references from family members which dealt with that event and its impact on him, and also from a family friend who spoke of his regret for the assault and greater sense of responsibility subsequently.  Lude was employed by a smash repair business as at the date of sentence. He had one child, 14 months old, from a relationship which had ended just before the sentence. 

[11] The learned sentencing judge observed that the actions of the two applicants were entirely unprovoked.  He referred to two decisions of this Court, R v O'Grady; ex parte A-G (Qld) [2003] QCA 137 and R v Lam [2006] QCA 560 as confirming the appropriateness of custodial sentences for offenders involved in crimes of unprovoked gratuitous violence.  He took into account the early guilty pleas, but noted the significant impact of the assault on the victim as described in his victim impact statement.  He concluded that a custodial term of imprisonment should be imposed for reasons of deterrence.

[12] Here counsel for the applicants both submitted that excessive weight was placed on deterrence and insufficient recognition given to the mitigating circumstances and the prospect of rehabilitation of both applicants, particularly given their youth.  These points were made: the assault was brief and not premeditated; no weapon was used; the complainant was not knocked to the ground and suffered relatively minor physical injures that did not prevent him from finishing his shift driving taxis that night; the applicants had co-operated with police and confessed their involvement; both had pleaded guilty.  In Lude’s case the additional points were made that he had no previous convictions and did not instigate the offence; he had significantly reduced his alcohol consumption as a result of the events on that night; he had favourable references and a good work history and was unlikely to re-offend.  In Love’s case it was said that his criminal history was minor and he had not previously had the benefit of a community-based order which might assist with his excessive drinking; he had had a sad and dysfunctional background; and his work history was good.

[13] Both counsel relied on a number of cases, including R v Lam, referred to by the learned sentencing judge.  Lam twice assaulted a passer-by in the Brisbane city area, in each case in company.  On the first occasion, he punched the complainant repeatedly to the face and head and on the second, encountering him again later that night, punched him and then kicked him while he was on the ground. He resisted apprehension and was taken into custody only after a violent struggle. Lam was 28 years old and had a previous criminal history described as “significant”. The assault took place nine days after his release from custody after serving part of a suspended sentence. The complainant suffered lumps to his head, bruising, a broken fingertip and a bloody nose and required two weeks off work.  Because of a specific error in the activation of part of an earlier, suspended sentence the Court exercised its discretion afresh, but it imposed the same sentences in respect of the counts of assault occasioning bodily harm in company as had been imposed at first instance: head sentences of two years on each, with a parole release date set after 12 months. Another four month term, which was the activated part of a suspended sentence in an unrelated matter, was ordered to be served concurrently. Philippides J, with whom the other members of the Court agreed, observed that in cases of -

“… gratuitous street violence against a complete stranger ... appropriately salutary sentences by way of general deterrence are warranted.”

Two years was not, her Honour said, to be taken as the top of the appropriate range. 

[14] The other case referred to by the learned sentencing judge was R v O'Grady; ex parte A-G (Qld).  The respondent was sentenced to 12 months imprisonment to be served by way of intensive correction order on one count of assault occasioning bodily harm and another of doing grievous bodily harm.  He crash-tackled and punched an older man, causing some facial injuries, and punched another man with him causing him a split lip, a bleeding nose and some bruising.  After police arrived, the respondent punched the second victim again in reaction to some mild provocation, causing grievous bodily harm in the form of an orbital floor fracture.  The majority described the case as “unprovoked, gratuitous street violence”, conduct calling for a custodial sentence.  Twelve months imprisonment by way of an intensive correction order was held to be manifestly inadequate in that case. However, allowing for the fact that the respondent had already completed two months of the intensive correction order, the principles relating to appeals by an Attorney-General, and the counter-productive effect on rehabilitation of a very short time in actual custody, the majority substituted a wholly suspended sentence of imprisonment for two years, with an operational period of three years. 

[15] Both the applicants and the respondent referred to R v Middleton and Johns [2006] QCA 92 and R v Abednego [2004] QCA 377.  In Abednego the applicant was 20, with no previous criminal history and a good employment record.  He had armed himself with a part of a steering wheel lock for protection on going to the complainant’s house with a friend to sort out some of the latter’s family problems in what was intended to be a peaceful discussion.  When the complainant approached the applicant, as he perceived, aggressively, he hit him twice with the wheel lock and then kicked him.  The complainant suffered a fractured jaw and a minor closed head injury and was unable to work for seven months.  A sentence of six months imprisonment suspended after three months for an operational period of 12 months was substituted for two years imprisonment suspended after six months. 

[16] In R v Middleton and Johns the applicants had gone to the complainant’s house believing that he had stolen something from them, sprayed him with mace or a similar substance, punched him and kicked him. He stabbed Middleton in self-defence. The complainant in that case suffered multiple abrasions and bruising over his torso and arms and possible concussion.  Johns was sentenced to six months imprisonment to be followed by three years probation and Middleton to three months imprisonment to be followed by three years probation.  Johns was 19 years old, and Middleton 22 years old.  Neither had any criminal convictions of any significance and both had good employment histories.  Jerrard JA with the agreement of the other members of the Court, having reviewed the authorities, made the observation that:

“This Court will uphold sentences resulting in actual custody for first offenders with no prior convictions who plead guilty to assault occasioning bodily harm, where there are aggravating circumstances. Those can include the motive for the assault, its severity, or the circumstances of being armed and in company. While actual imprisonment is not mandated, it will ordinarily be within the proper exercise of a sentencing discretion.” 

As to Middleton, the Court held that although some actual imprisonment was justified, the six month term was too high for an applicant of his age with sound future prospects and was longer than necessary for an appropriate denunciatory sentence.  Johns had been on bail pending appeal.  The case was a marginal one in which it was preferable not to return him, as a young applicant, to prison for a short period.  Accordingly, in each case the sentence was varied by admitting the two to probation immediately, some four weeks after they had been sentenced. In the result, Johns served only 11 days imprisonment.

[17] In the present case, while actual imprisonment could not be said to be outside the range of a proper exercise of sentencing discretion, the sentence of 18 months imprisonment was, by reference to those authorities, excessive, having regard to the facts that no weapon was used, there was no premeditated aspect to the assault, it was not committed in connection with any criminal purpose and it did not result in any serious injury.  The imposition of six months actual custody did not properly recognise the importance of rehabilitation for young offenders such as these, without significant previous convictions. Nor were the other strong mitigating features by way of the applicants’ co-operation with police and their early pleas of guilty adequately reflected.

[18] Rehabilitation, deterrence and denunciation must all be balanced in a re-exercise of the sentencing discretion. One must not lose sight of the fact that this was an entirely unprovoked attack causing injury to an ordinary, inoffensive person in a public place. There is, I consider, some basis for distinguishing between the two applicants. Love had some previous convictions and fines for offences which suggested similar public misbehaviour, albeit of a much milder kind. More importantly, he was the instigator of the assault on the evening in question. In his case, I would give leave to appeal, set aside the sentence imposed at first instance and substitute a sentence of nine months imprisonment with a parole release date fixed at 8 November 2007. In respect of Lude, I would give leave to appeal, set aside the sentence imposed at first instance and substitute a sentence of nine months imprisonment with a parole release date fixed at 2 October 2007.

[19] LYONS J:  I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the reasons and the orders proposed by Holmes JA.