R v Maddox[2008] QCA 208

SUPREME COURT OF QUEENSLAND

MUIR JA:  The applicant seeks leave to appeal against sentences imposed on him in the District Court on 7 March 2008 after pleas of guilty for one count of unlawful assault occasioning bodily harm, one count of dangerous operation of a vehicle, and for breach of a suspended sentence.

On 14 September 2005, the applicant was sentenced in the District Court to 12 months imprisonment on counts of grievous bodily harm and assaults occasioning bodily harm and to five years imprisonment, suspended after 20 months, with an operational period of five years, for another count of grievous bodily harm.

The offences first referred to were committed during the operational period of the suspended sentence.  The learned sentencing Judge ordered that:  the balance of the term of the suspended sentence be served; for the motor vehicle offence, the sentence be 12 months imprisonment to be served concurrently with the balance of the suspended sentence, and, that, for the assault offence, the applicant be sentenced to 15 months imprisonment to be served cumulatively upon the activated suspended sentence.  A parole eligibility date of 6 November 2009 was fixed, and it was declared that the 270 days spent in pre-sentence custody be time served under the 15 month sentence.

The applicant was 26 when sentenced.  He had an extensive prior criminal history.  He had been sentenced on previous occasions for assaults occasioning bodily harm.  He had a previous conviction for grievous bodily harm and one for unlawful wounding.  In 1995 and 1996, the applicant had been convicted in the Children's Court on six occasions of 14 offences, including break and enter with intent, stealing, unlawful use of a motor vehicle, and unlawfully taking away shop goods.  His first term of actual imprisonment was ordered to be served on 11 November 1997 for an offence of stealing with actual violence whilst in company.  He was sentenced to various terms of imprisonment in January 2000 for offences, including assaults occasioning bodily harm, robbery in company with personal violence and deprivation of liberty whilst in company.  In November 2001 he was sentenced to two years imprisonment for wounding. 

The motor vehicle offence was committed on 20 August 2006 when the applicant was taken to the Wynnum Hospital suffering breathing difficulties.  He was in urgent need of treatment, but refused it.  Police were called by hospital staff to assist with the removal of the applicant to the Princess Alexandra Hospital.  He was driven to that hospital by a friend or acquaintance in a private car escorted by a police car.  The car was parked at the emergency ward entrance and the driver of the private car alighted to speak to a police officer.  The applicant entered the car and drove off, pursued by the police car.  He drove at speed through the hospital grounds, proceeding through a stop sign without stopping onto an internal road on which he was seen to be swerving erratically.  The car crashed head on into a kerb and stalled.  The applicant fled but was apprehended by police officers after a struggle in which he was finally subdued by the use of capsicum spray. 

The subject unlawful assault occurred in the Brisbane watch house on 12 June 2007, when the applicant was being held in custody on unrelated offences.  He shared the cell with another adult male.  Security footage showed the applicant leave his bed, approach the complainant, push him, knee him in the face, punch him twice in the head and then knee him in the head again.  Some minutes later the video recording shows the applicant go over to the complainant, who was then sitting on his bed, and kick him in the face.  The complainant was taken to hospital where X-rays revealed that he had suffered a fractured left zygoma and a displaced maxilla.

The applicant's explanation for the attack given to a police officer was, "I assaulted him because he looked at me funny."  The explanation offered to the sentencing Judge for the assault was that the applicant thought the complainant was masturbating in bed and exposing himself to the applicant.

The attack in the watch house was vicious and unprovoked.  Given the applicant's prior criminal history and the nature of the offence for which the suspended sentence was imposed, it could not be argued reasonably that the activation of the whole of the remaining term of the suspended sentence was unjust.  Counsel for the respondents submitted that a head sentence of up to three years imprisonment could have been imposed for the offence of assault occasioning bodily harm.  That submission is supported by R v Hills [2004] QCA 205, R v West [2006] QCA 252, and R v Hadland [2000] QCA 182. 

It was submitted, also, that it was appropriate for the sentence for assault to be ordered to be served cumulatively upon the balance of the suspended sentence.  That submission was plainly correct also. 

The sentencing Judge stated that in determining the sentences he had taken into account the applicant's pleas of guilty.  A sentence of 15 months appropriately accommodated the reduction in sentence to reflect the applicant's guilty plea and the totality principle.

The parole eligibility date of 6 November 2009 was approximately six weeks beyond the half way point of the cumulative periods of imprisonment ordered to be served.  It does not appear to have reflected the sentencing Judge's intention.  He said, "I propose to impose a sentence which reflects the seriousness of the offences, but, moderate the sentence for those offences, and, indeed, the balance of the suspended sentence by a parole eligibility recommendation so that there will be some hope for you if you work consistently within the present system."

It is plain, in my view, that the sentencing Judge did not intend to fix a parole eligibility date beyond the half way mark.  If he had, one would have expected some observations to that effect.  Whether he had a particular earlier date in mind, it is impossible to say, but there does not appear to have been any good reason for selecting the mistaken date.  The sentencing discretion thus miscarried, but only in respect of the fixing of that date.

I would order that the application for leave to appeal be allowed, that the sentence imposed on 7 March 2008 be varied, but only by the substitution of 25 September 2009 for 6 November 2009 as the parole eligibility date.

MACKENZIE AJA:  I agree.

WILSON J:  I agree.