R v Ryan[2008] QCA 134

COURT OF APPEAL

MUIR JA

MACKENZIE AJA

JONES J

CA No 59 of 2008

TOWNSVILLE

DATE 29/05/2008

MUIR JA:  The applicant was convicted on his own plea of guilty of one count of unlawful assault causing bodily harm in company with another person in the District Court at Cairns and sentenced on 7 February 2008 to 18 months' imprisonment with a parole release date of 6 November 2008.

He was 28 years of age at the time of the offence.  He had two prior convictions for breaching domestic violence orders; a conviction in October 1997 for breaking an entering and wilfully setting fire to a building; a conviction in January 2004 for behaving in a disorderly manner and a conviction in December 2004 for being drunk and disorderly on licensed premises.  The circumstances of the domestic violence offences are unknown. 

At about 2 am on 9 June 2007 a security camera filmed the applicant approach the complainant who was sitting on a step outside a nightclub.  A brief conversation took place and the applicant unsuccessfully attempted to punch the complainant twice in the head.  The applicant went into the nightclub.  The complainant remained seated for a few minutes and then walked away from the club.  The applicant and his co-accused started to follow the complainant and after a while ran after him.  The applicant caught up with the complainant and punched him several times in the head. 

The complainant managed to escape for a short distance but was caught and punched to the ground by the applicant.  The complainant regained his feet and attempted to run away but the applicant again punched him several times to the head causing him to fall.  The co-offender then kicked the complainant in the head and the applicant and the co-offender walked away.  The evidence does not reveal the extent of the injuries inflicted on the complainant but it was common ground that any serious injuries were caused by the co-offender's kicking.

The applicant seems to have been in regular employment.  He had two young children by a woman with whom he was in a longstanding de facto relationship.

Three grounds of appeal are relied on.  The first is that the learned primary Judge erred in finding that the applicant's criminal history suggests ill-temper.  Mr Collins, who appeared for him, advanced no oral submissions in that regard, probably because there was no substance in the point. 

The next complaint is that the primary Judge erred in not taking into account the applicant's claims that the incident commenced after an earlier "off-camera" assault by the complainant on the applicant.  It was submitted that the primary Judge should have acquired evidence from the parties on the point or at least given the applicant the opportunity to lead evidence.  That ground is without substance also. 

The primary Judge watched the video recording referred to earlier.  The applicant's version of events, advanced by his counsel from the Bar table, was that the dispute commenced as a result of the complainant, whilst sitting down beside the applicant, punching him in the head for no reason at all.  That version of events is not supported by the video recording, nor could it, if true, have any material bearing on the sentence imposed.  The attack on the complainant by the applicant, who was a much larger man, commenced whilst the complainant was seated.  That attack is not alleged to have caused harm to the complainant.  The complainant, without any further interaction with the applicant, went on his way but was pursued and assaulted by the applicant and his companion, an even larger man. 

If the earlier incident was thought to be relevant there was evidence before the primary Judge from which he could draw the inference that it was not precipitated by the complainant's conduct.  The applicant, although aware of this evidence, elected not to give evidence on the sentencing hearing.

The third ground is that the primary Judge erred in failing to take the applicant's plea of guilty into account when passing sentence and that the sentence, in consequence, was manifestly excessive.  The primary Judge did not refer to the guilty plea as such in his reasons, nor did either counsel refer to the plea in submissions.  Section 13(1) of the Penalties and Sentences Act 1992 (Qld) requires a Judge imposing a sentence after a guilty plea, to take the guilty plea into account.  Section 13(3) requires a Court imposing a sentence after a guilty plea to state in open Court that the guilty plea was taken into account in determining the sentence imposed. 

If the Court does not reduce the sentence after considering a guilty plea, subsection (4) requires that fact and the reasons for it to be stated in open Court.  Subsection (5) provides that a sentence is not invalid merely because of the failure of the Court to make the statement required by subsection (4).  That provision does not relieve a sentencing Judge of his or her obligation to obey the statutory command.

In order to support his argument that the sentence was manifestly excessive, Mr Collins, who appeared for the applicant, relied on authorities including the R v Lude; R v Love [2007] QCA 319.  In that case the applicants each pleaded guilty to a count of assault occasioning bodily harm in company and were sentenced to 18 months' imprisonment with a parole release date fixed after six months.

Love was 20 at the time of the offence and had a minor criminal history.  Lude was 21 with no prior criminal history.  The applicants, who were drinking in a house with two other young men, drove into the centre of Noosa to purchase more alcohol.  Whilst driving they had a verbal exchange with the occupants of another car.  That car pulled up near a taxi rank, the applicant's car pulled up and Love ran towards the other car which drove off.  Love then punched and kicked a taxi in a taxi rank.  A taxi driver got out of his vehicle to remonstrate and was punched in the head and face by Love.  Lude joined in the assault and punched and kicked the complainant.  The assault ended when other taxi drivers came to the complainant's aid. 

The complainant suffered a laceration to the bridge of his nose, the nasal septum was deviated to one side, both his eyes were blackened, his neck, spine and ribs were tender and his chest bruised.  His upper denture plate was broken and he had cuts on the inside of his mouth.  He also lost several days' work and became apprehensive when picking up passengers who appeared to have been drinking.

After canvassing a number of authorities Holmes JA, with whose reasons the other members of the Court agreed, concluded that the 18 months' sentence was, by reference to those authorities, "excessive having regard to the facts that no weapon was used, there was no pre-meditated aspect to the assault, it was not committed in connection with any criminal purpose and it did not result in any serious injury."

Her Honour noted also that the six months actual custody did not properly recognise the importance of rehabilitation for young offenders without significant previous convictions.  The sentences were set aside.  Love was the instigator of the attack.  In his case the sentence of nine months' imprisonment with a parole release date fixed at 8 November 2007 was substituted.  Lude's sentence was set aside and a sentence of nine months' imprisonment with a parole release date fixed at 2 October 2007, the date on which the reasons were published, was substituted.

In R v Cherrie [2006] QCA 491, an application for leave to appeal against a sentence of two years suspended after six months for a period of two years for two offences of assault occasioning bodily harm in company was dismissed.  That case, however, does not appear to me to shed much light on the appropriate sentencing range here involving, as it did, a home invasion.

In R v Stallan [2003] QCA 62, a sentence of two years' imprisonment suspended after nine months for an operational period of three years imposed for each of two counts of assault occasioning bodily harm in company was set aside and a sentence of two years' imprisonment suspended after six months for an operational period of two years was substituted.  The applicant was 24 at the time of the offences and had a lengthy criminal history for property and street offences.  He also had convictions for assaults. 

The applicant took part in a fracas outside a nightclub in Toowoomba in which some patrons of the club, including the applicant, attacked two security personnel who were assisted by another off-duty security officer.  One security officer was punched, pulled to the ground and kicked by at least four persons.  Another was also knocked to the ground and kicked.  The third security officer was punched in the face and kicked.  Each of the officers suffered relatively minor injuries.

In this matter the applicant was sentenced on the basis that he was not criminally responsible for the kick or kicking.  He pleaded guilty to an assault causing bodily harm in company.  The bodily harm identified was pain from punches and a grazed knee.  The co-offender pleaded guilty to a count of grievous bodily harm.

In my respectful opinion the primary Judge failed to give due account to the facts just stated. 

It is accepted that general deterrence is an important consideration in sentencing for street offences of this nature.  But R v Lude; R v Love suggests that a lower sentence was appropriate.  Stallan involved participation in a group attack on persons in authority by an offender with a significant prior criminal history which included convictions for assault.  Cherrie is distinguishable as involving, as I mentioned, a home invasion.  The offender there also had a prior conviction for robbery with actual violence.

Here it would seem, having regard to the sentence imposed, that no sufficient consideration was given to the plea of guilty.  I therefore conclude that the sentence imposed here was manifestly excessive. 

I would allow the application for leave to appeal, allow the appeal, set aside the sentence imposed below and substitute a term of imprisonment of 12 months with a parole release date fixed at 6 June 2008.

MACKENZIE AJA:  I agree with the presiding Judge.  I wish to add just the following remarks about the situation that has engaged our attention this morning. 

Justice Muir has referred to the statutory provisions applying where a plea of guilty has been entered.  Making an ameliorating accompanying order in the form of a recommendation or order for early release is one means of complying with the requirements; R v Corrigan [1994] 2 Qd R 415.  Reduction of the head sentence is another.  The first option was not adopted in this case. 

There is passing reference to the fact that the applicant had pleaded guilty in the context of saying that while he was not criminally responsible for the serious injury caused by the co-accused, he had pleaded guilty to assault occasioning bodily harm.  It is not obvious to me that that passing reference refers to an intent to reduce the head sentence to allow for the plea of guilty.

As R v Taylor and Napatali; ex-parte A-G Qld [1999] 106 A Crim R 578 establishes, and R v Woods [2004] QCA 204 reaffirms, the necessity to take a plea of guilty into account and state that it has been done and how it has been done is an essential part of the transparency of the sentencing process.  If a plea of guilty is entered but a trial Judge does not reduce the sentence by either of those means, section 13(4) requires the Judge to state why.  On the other hand if a plea of guilty is taken into account by reducing the head sentence it should, in my view as a matter of course, be made apparent on the record that it was.

There may be cases where no provision for early parole has been made in which it can be inferred, if the head sentence is lower than would ordinarily be expected, that allowance must have been made for the plea of guilty.  Whether any allowance in fact made is sufficient in an individual case is always a separate residual question.

The task of divining from the record whether allowance for the plea of guilty has been made in cases where there is no provision for early parole is something that ideally could be avoided by adoption of what seems to be a simple precaution against rendering a sentence vulnerable to challenge in consequence of lack of transparency. 

Where reduction of a head sentence is made to take into account a plea of guilty and other mitigating factors it would be prudent, in my view, to state that fact expressly and give at least some indication of what the level of sentence would have been had the reduction not been made.  That would limit the scope for speculation about the starting point for calculation and sufficiency of the reduction for matters of mitigation that not infrequently engages the Court's attention.

With regard to the merits of the application, no-one can seriously dispute that the settling of late night grievances by street violence is a social blight and of concern to community members. 

In the present case the complainant suffered a serious injury but one inflicted by the applicant's friend.  Acceptance by the Crown of a plea of guilty to assault occasioning bodily harm in company only, not grievous bodily harm, necessarily implies that the Crown accepted that that was not an injury for which the applicant could be held criminally responsible. 

The cases discussed by Justice Muir demonstrate that the sentence was manifestly excessive having regard to the basis upon which the applicant was sentenced.  I agree with the orders proposed.

JONES J:  I agree with the reasons of the presiding Judge and the orders he's proposed.

MUIR JA:  The orders of the Court are:

That the application for leave to appeal and the appeal be allowed;

That the sentence imposed below be set aside; and

That there be substituted therefore a term of imprisonment of 12 months with a parole release date fixed at 6 June 2008.