SUPREME COURT OF QUEENSLAND

[1]  KEANE JA: I agree with the reasons of Dutney J.

[2]  HOLMES JA:  I agree with the reasons of Dutney J.

[3]  DUTNEY J: The applicant sought leave to appeal against a sentence of 11 months imprisonment imposed on 22 May 2008 following a plea of guilty in the District Court at Southport to charges of going armed so as to cause fear and common assault.

[4] The learned District Court Judge fixed the applicant’s parole release date at 22 August 2008 so that the period of actual custody was three months.  His Honour also recommended that the applicant undertake anger management and victim empathy programmes.

[5] The offences were committed on 29 July 2007.

[6] This court heard the application for leave to appeal on 5 August 2008.  Having regard to the period of time the applicant had, as at 5 August 2008, served in custody, and his impending release on parole on 22 August 2008, the application was allowed and the sentence varied to the extent only of fixing a new parole release date of 5 August 2008.  The court deferred delivering reasons until a later date.

[7] The applicant was born on 9 April 1974 making him 34 years of age at the time of sentence and 33 years of age at the time of the commission of the offences. 

[8] The applicant has previous convictions for similar offences.  In January 2004, the applicant was convicted of weapon and drug related offences.  He also has convictions in New South Wales for offences including several malicious damage and driving offences.

[9] In August 2006 the applicant was convicted of two offences of assault occasioning bodily harm committed on 5 February 2006 for which he received probation and community service.  The community service was later revoked because a work injury suffered by the applicant rendered him incapable of performing it.  He was then re-sentenced to a period of 12 months probation.  By that stage, he had already completed approximately 12 months of the original probation period.  He was on parole when he committed the offences which form the subject of this appeal.

[10] The facts of the offences for which the applicant was placed on probation bore an unsettling similarity to the current offences.  They involved an episode of what is commonly called road rage where the applicant assaulted and caused damage to the property of two young strangers to whose driving he took exception.

[11] Briefly the facts relating to the current offences were as follows.  The applicant was driving his motor vehicle out of his driveway onto the roadway.  As he did so he spun his wheels and veered towards some cars on the other side of the road.  The complainant was standing with others near those vehicles, one of which was his.  The manner in which the applicant came out of the driveway suggested that he lacked proper control of his vehicle.  As this was taking place, there was a suggestion that a member of the complainant’s group made some comment about the applicant’s car or manner of driving.  The applicant drove a short distance along the road before stopping and reversing back to where the complainant was standing.  The applicant abused the complainant and threatened him with a knife.  The applicant was disarmed by a female passenger who was visibly distressed by what was taking place.  Despite this, the applicant continued the confrontation with the complainant, pushing the complainant’s head in an aggressive manner.  In the course of the confrontation the applicant made threats to a female member of the complainant’s group as well as to the complainant.  He also removed the complainant’s keys from the ignition of his car and tried to throw them on the roof of a nearby building.

[12] The sentencing judge noted that the current offences were committed while the applicant was on probation for the offences committed in February 2006.  His Honour also observed that the current offences occurred in the context of the applicant being armed with a knife.

[13] The sentencing judge noted that the applicant appeared to be a danger and a menace to other road users and needed to realise that whatever his frustrations and anger management problems, he could not take them out on other people.

[14] On the positive side, the sentencing judge took into account the applicant’s early plea of guilty on an ex officio indictment.

[15] At the time he was sentenced for the current offences, the applicant also had eight outstanding summary charges which were not dealt with.  The applicant had been remanded in custody from 29 July 2007 until 11 December 2007, not only for the current offences, but also for those summary offences.  Therefore, a total of 136 days was spent in pre-sentence custody which could not be declared time served under the sentence. 

[16] The sentencing judge reduced the sentence he would otherwise have given by one fifth of the period on remand on the basis that he was dealing with two of the ten charges for which the applicant was in custody.  The logic of this approach is difficult to justify, especially in light of the fact that two of the summary offences did not carry terms of imprisonment at all.  This last factor seems not to have been drawn to the sentencing judge’s attention and is plainly material.  In the circumstances I consider that the sentencing discretion miscarried in this case.

[17] It is significant that all the summary offences occurred either in the course of the confrontation with the complainant or shortly afterwards when the applicant was apprehended by police.

[18] The most serious of the summary charges was probably an offence of driving with a blood alcohol reading in excess of 0.14 per cent.

[19] Recently the applicant pleaded guilty in the Magistrates’ Court to all the summary offences.  He was fined $1500 and disqualified from driving for two years in relation to the drink driving offence.  In relation to all the other offences he was convicted but not further punished.  In sentencing the applicant, the Magistrate noted and presumably took into account the penalty the applicant received for the current offences. 

[20] While none of the summary offences seemed to individually warrant a period of actual imprisonment, had the applicant been sentenced for all the offences at the same time this may have had an impact on the overall head sentence given for the current offences.

[21] The maximum penalty for the offence of going armed to cause fear was two years imprisonment.  The maximum penalty for the assault was three years imprisonment.

[22] Having regard to the circumstances of the current offences and the applicant’s antecedents, a sentence of actual imprisonment was obviously justified. 

[23] Taking into account the time that could not be declared time served under the sentence imposed for the current charges, the effect of the sentence is that the applicant will serve a total of seven and a half months in actual custody for all the offences.  When the period of parole following release is included, this represents a total head sentence of fifteen and a half months imprisonment.

[24] For my part, I do not regard such a head sentence as being outside the permissible range for this type of offending, particularly if all the offences had been dealt with concurrently.  In those circumstances, I do not consider it appropriate to interfere with the head sentence of 11 months actually imposed. 

[25] On the other hand, the parole release date fixed by the sentencing judge failed to give any effective discount for the early plea of guilty when the undeclared time was considered.  It is clear that the sentencing judge did intend there to be such a discount.

[26] In the ordinary course, a person pleading guilty on an ex officio indictment is entitled to expect a reduction in the sentence or in the impact of the sentence that is imposed.  Commonly this is achieved by providing for early release, often, after a third of the head sentence has been served.

[27] Since, when the matter came before this court, the applicant had served all but three weeks of the period he was required to spend in actual custody, the appropriate course was to order that the parole release date be varied to enable the applicant to be immediately released.