SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: I agree with Fraser JA.

[2]  FRASER JA: On 27 August 2009 the applicant was convicted on his own pleas of two counts of unlawful assault.  He was sentenced to concurrent terms of imprisonment of 12 months on each count and a parole release date was fixed on 27 November 2009, after serving three months in custody.  On the same day the applicant filed an application for leave to appeal against his sentence on the ground that it was manifestly excessive and he was granted bail pending appeal. 

[3] I will discuss the arguments advanced for the parties after I have first summarised the circumstances of the offence, the applicant's personal circumstances, and the sentencing remarks and report of the sentencing judge. 

Circumstances of the offences

[4] In the evening of 9 August 2008 the applicant, who was intoxicated, was preparing dinner in his unit.  Mr Cook, who lived in the same block of units, was sitting in a car parked in the driveway.  Very loud music was coming from the car.  The applicant apparently saw the complainant, who lived nearby, approach the car and ask Mr Cook to turn the music down.  Mr Cook apologised to the complainant for the noise.  The applicant then appeared on the scene, running towards the complainant whilst holding a kitchen knife some 30 centimetres long.  The applicant shouted abuse at the complainant, and demanded that he leave the "private property".  The applicant grabbed the complainant on one shoulder, held the knife to the complainant’s chest, and shouted at him.  Amongst other angry statements the applicant accused the applicant that “You’re the Nazi guy that keeps calling the police”.  Mr Cook got between the applicant and complainant but the applicant ripped the complainant's shirt and bruised his shoulder whilst continuing to wave the knife around at him.  As the complainant attempted to escape the applicant lunged the knife at him whilst also pushing him with one hand. 

[5] The complainant's eldest daughter (the complainant in the second count of assault) then appeared on the scene.  At about this time the applicant put the knife away, into a pocket according to the agreed statement of facts.  The complainant's daughter swore at the applicant and demanded that he keep the music down.  The applicant maintained his own tirade of abuse, persisting in his argument that the car was on private property.  As the complainant’s daughter walked out of the driveway the applicant came up behind her and thumped her on the back of her right shoulder, causing her to stumble.  She did not fall.  The applicant continued to shout at the complainant and his daughter, including making the threatening remark that, "I know who you are and I know where you live."  The complainant's daughter responded with a rude gesture.  The complainant and his daughter then returned to their house and telephoned the police.

[6] The applicant was uncooperative with the police when they arrived.  He was restrained, handcuffed and arrested.  Subsequent breath testing suggested a blood alcohol content of 0.283 per cent.  There was a committal in which the complainant and his daughter were not cross-examined and at which the applicant pleaded guilty to the then only charge of going armed in public.  The indictment which was subsequently presented added the two counts of assault, to which the applicant pleaded guilty after the prosecution withdrew the charge of going armed in public. 

[7] The record includes no victim impact statement by the complainant's daughter.  The complainant's victim impact statement reveals that he suffered bruising, shock, stress, and disturbed sleep for some time.  He said, however, that he and his family did not suffer any long term effects. 

The applicant's personal circumstances

[8] The applicant was 33 years old when he committed the offences.  He is now 34.  He has a number of convictions dating back to 1993 for minor offences, for which he was fined.  In the same year he also committed the offence of stealing with actual violence whilst in company, of which he was convicted and sentenced in 1995 to nine months imprisonment suspended for a period of two years.  There is no record of any further offence before the subject offences, other than that in May 2006 he was convicted and fined $600 for wilful damage in a regulatory offence, which his counsel submitted was the result of a response to racist taunts. 

[9] The applicant was educated to Year 12, had been in regular employment, and was in current employment as a packer and delivery driver.  He lived with his family, his de facto wife and two young children, whom he supports.

The sentence and the report by the sentencing judge

[10]  The sentencing judge adverted to the circumstances of the applicant's offence and his personal circumstances, took into account in the applicant's favour his plea of guilty and that it had occurred following a hand-up committal where neither complainant was cross-examined, and emphasised the importance of deterrence in circumstances where neighbours who are being disturbed by loud music are threatened with a knife when they endeavour to negotiate a reduction in the noise level.  The sentencing judge said that he imposed the sentence to make it clear that the community, acting through the court, denounced the applicant’s conduct and that people cannot behave like vigilantes: people who ask for noise to be reduced should not expect to find “some knife-wielding drunken lunatic attacking them and threatening to stab them.”  After citing R v Hayes [2008] QCA 236 and R v Lidbetter [2009] QCA 6, the sentencing judge concluded that in view of the serious nature of the offences and in light of the applicant's personal circumstances, including his criminal history and age, there was no reasonable alternative to a term of imprisonment to punish to an extent and in a way that was just in all the circumstances, to assist in rehabilitation, and to deter the applicant and other people from committing that or similar offences. 

[11]  As required by s 671A of the Criminal Code 1899 (Qld) and r 94 of the Criminal Practice Rules 1999 (Qld), the sentencing judge provided this Court with a report.  The report is dated 31 August 2009.  In it the sentencing judge said:

"In respect of this matter, I wish to make the following points:-

Firstly, the suburb of Cairns where the offence occurred, is regrettably the source of repeated vigilante conduct of the type, the subject of the sentence. Unfortunately, this conduct also generally involves a racist element. There is, therefore, a strong need for the Court to send out a clear message in terms of both public and private deterrence when dealing with offences of this type.

Secondly, the reference to the defendant as a lunatic, is made in accordance with the definition of this term in the Macquarie Concise Dictionary, 4th Edition, namely “a person behaving in an outrageous or irresponsible way”.

The sentence was therefore reflective of these elements."

The arguments in the application

[12]  The applicant contended for these errors by the sentencing judge:

(a)concluding that there was no reasonable alternative to imprisonment in this case: the applicant's counsel emphasised that whilst the introduction of the weapon was serious and of significant public concern, the whole incident occupied a very short time, the knife was quickly put away, the knife was not in fact used, and nor was it suggested that the applicant intended to use the knife. 

(b)taking into account unproven and irrelevant matters as set out in the learned sentencing judge's report:  the applicant's counsel cited R v Moss [1999] QCA 426 in support of his argument that the sentencing judge erred in acting on a personal view that there was repeated vigilante conduct of the relevant kind where these offences were committed, generally involving a racist element, when there was no reliable evidence of any increase in prevalence of common assault anywhere or in the relevant part of Cairns in particular, whether or not with racist overtones.  (In the course of oral argument, the applicant’s counsel accepted that evidence of such matters was not always necessary, for example, where it was reflected in judicial decisions or was notorious.)

(c)failing to advise the parties that those matters were taken into account in the sentencing process and not giving the parties, in particular the applicant, an opportunity to be heard on those matters: R v Cunningham [2005] QCA 321 at pages 5 – 6 and R v Kitson [2008] QCA 86 at [20] – [24] were cited for the proposition that the sentencing judge erred in taking the matters in (b) into account as important considerations bearing on the sentence without first bringing them to the attention of the parties and inviting submissions. 

(d)overstating the relevance of the comparative sentences provided by the prosecution:  the applicant argued that Lidbetter and Hayes involved more serious offences because in each case the offender had produced a knife in a threatening way in a public place and in each case the offender was on probation at that time. 

(e)not giving sufficient weight to the relevant mitigating factors: the applicant's counsel emphasised the mitigating factors which I have summarised, particularly that the applicant has a young family, he is in stable employment, he has no relevant previous convictions in recent times and had early indicated his intention to plead guilty, and that the offending was spontaneous and brief. 

(f)in all the circumstances the sentence was manifestly excessive:  the applicant's counsel contended that the range within which the sentence should have been imposed was 200 hours of community service up to a period of imprisonment of no more than six months, either wholly suspended or subject to immediate parole release.

[13]  The respondent’s counsel conceded that there was substance in the applicant’s argument that he was denied procedural fairness, so that the application for leave and the appeal should be allowed on that ground and that this Court should sentence afresh.  He submitted, however, that the sentence imposed by the sentencing judge was an appropriate sentence.  He argued that a sentence under which the applicant would serve some significant period in actual custody was required by the applicant’s conduct with the knife and to reflect the total criminality in the applicant's behaviour.  Counsel for the respondent emphasised the importance of deterrence and denunciation of the anti-social offending in this case. 

Discussion

[14]  The judge’s report, which it was common ground should be accepted for this purpose, makes it clear that his Honour’s view about the local prevalence of offences with features similar to those committed by the applicant was an important consideration in fixing upon the sentence imposed.  Unfortunately, that is mentioned only in the report, rather than in the sentencing remarks.  It is to be emphasised that the essential reasons for the imposition of a particular sentence should be expressed in the sentencing remarks: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, at paragraph [39], in which the point was made that accessible reasoning is necessary in the interests of victims, the parties, appeal courts and the public. 

[15]  Furthermore, the respondent was right to concede that the sentencing judge failed to afford procedural fairness to the applicant.  Many decisions, including R v Cunningham [2005] QCA 321 at pages 5 – 6, R v Kitson [2008] QCA 86 at [20] – [24], and cases there cited,  support the proposition that, where a matter is considered by the sentencing judge to be an important consideration in the formulation of a just sentence and it cannot reasonably be assumed that the parties appreciate that it might be taken into account, it should be communicated to the parties so that they might have an opportunity to be heard about it.  In R v Downie and Dandy [1998] 2 VR 517, the Victorian Court of Appeal allowed an appeal on the precise ground advanced by the applicant, that the sentencing judge had treated local prevalence of the crime as a major factor in the sentencing disposition without first giving the parties an opportunity to be heard on the matter.  In remarks which are apposite to this application, Callaway JA, with whose reasons Phillips CJ and Batt JA agreed, said, at 522 – 523:

"… the more informal the procedure by which prevalence is established, the greater the need for the observance of procedural fairness. For there is all the more risk that a first impression, even a first impression that is strongly held by the sentencing judge, will be shown to be wrong if counsel is given an opportunity to make submissions, produce statistics or adduce other evidence or material. Compare Smart v R. at 1. A judge's belief does not exonerate him or her from the duty of procedural fairness, for he or she may be mistaken. Even knowledge does not absolve the judge from the duty to observe the audi alteram partem rule, for its observance conduces to acceptance on the part of both the prisoner and the public that justice has not only been done but has also been seen to be done. The idea is not novel. As Fortescue J. said in Dr. Bentley's Case (1723) 1 Stra. 557 at 567; 93 E.R. 698 at 704, it was observed by the Creator in the first garden of Eden.

…

Even if [the offence in R v Downie and Dandy] is locally prevalent, the applicants should have been given an opportunity by their counsel to argue that that was not so or that it should not result in a more severe sentence.

In reaching that conclusion, I intend no departure from what was said by Winneke P., in whose judgment Charles J.A. and Hedigan A.J.A. concurred, in R. v. Li [1998] 1 V.R. 637. His Honour said at 643:

'[I]t is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which he has knowledge (and which are not a matter of notoriety) without first giving to the accused, or his counsel, an opportunity to meet and counter such facts by appropriate submissions or otherwise... . Procedural fairness requires no less. [Emphasis added.]'

The words I have italicised are there to remind us that a judge does not have to invite submissions about such matters as the prevalence of armed robbery or the need for general deterrence in relation to drug trafficking. Even local prevalence, and the prevalence relevant to sentencing is often local, may be a matter of notoriety: for example, drunkenness in a country town or vandalism in a particular neighbourhood. In all such cases the applicant or his or her counsel should know without being told that there is an adverse factor that is likely to be taken into account."

[16]  The applicant’s counsel accepted that offences of common assault are prevalent throughout the State, but the respondent did not contend either that the offence accompanied by circumstances like those of the applicant’s offences was in fact markedly more prevalent in the particular suburb where the applicant committed his offences than elsewhere in the State or that so much was notorious.  Nor did the respondent argue that the applicant’s counsel at sentence should be taken to have appreciated that the sentencing judge might take any such factor into account adversely to the applicant.  In light of the importance which the sentencing judge evidently attributed to that factor in fixing upon the sentence, his Honour’s failure to bring it to the parties’ attention so that they might be heard on it was unfair, particularly (though not exclusively) to the applicant.  The conclusion is inescapable that the sentencing judge erred by failing to afford procedural fairness to the applicant.  This Court is therefore bound to grant the application, allow the appeal, and exercise the sentencing discretion afresh.

[17]  I turn then to consider what sentence should now be imposed.  I note in this respect that neither party sought to adduce evidence in this Court concerning any local prevalence of offences like those committed by the applicant or asked the Court to remit the matter for sentence to a court sitting in that region.

[18]  Whilst in a particular case a sentence of imprisonment requiring actual custody may well be the just sentence for an offence of this general character where a knife is produced, such an offence should not be treated as akin to an offence of wounding inflicted by the use of a knife, which is nearly inevitably punished by a custodial sentence: see R v Kidner [2005] QCA 430 at 3 and R v Cui [2009] QCA 334 at [17].  The production of a knife in the course of an assault, with the attendant shock and risk of serious injury and even death, does justify emphasis upon the deterrent aspect of sentencing, but whether actual custody is called for must depend upon a consideration also of other relevant sentencing factors with reference to the circumstances of the offence and the offender’s personal circumstances.

[19]  In R v Hayes, the Court found that an effective head sentence of 15 and a half months imprisonment (11 months imposed together with time served in pre-sentence custody which could not be declared) did not call for appellate interference in a case where the offender was convicted of going armed so as to cause fear and common assault.  A variety of summary offences were also taken into account, including an offence of driving with a blood alcohol reading in excess of 0.14 per cent.  After that offender drove erratically and attracted adverse comment from a group including the complainant, he abused and threatened the complainant with a knife.  After he was disarmed by his passenger, the offender pushed the complainant’s head, threatened the complainant and others in his group, and threw the complainant’s car keys away.  That offender had recent relevant convictions and he committed his offences whilst on probation.  It was a relevant feature (I interpolate that in my opinion it was a seriously aggravating feature) that the offences for which that offender was sentenced bore an "unsettling similarity" to a previous offence he had committed.  Dutney J concluded that a sentence of actual imprisonment was obviously justified in light of that applicant’s antecedents and the circumstances of his offences.  The head sentence of 15 and a half months was found to be not outside the permissible range for that type of offending.  The Court adjusted the sentence only because the sentencing judge's intention to give an effective discount for the early plea of guilty had not been carried into effect.  In that respect, Dutney J referred to the common practice under which a provision for early release is often made after a third of the head sentence has been served.

[20]  In R v Lidbetter the Court set aside a sentence of 18 months imprisonment with a parole release date after six months and re-sentenced the applicant to imprisonment for 12 months with a parole release date fixed after the applicant had served four months of that term.  That offender pleaded guilty to going armed in public so as to cause fear, deprivation of liberty, common assault, and wilful exposure.  He had held a knife to the complainant's neck whilst yelling abuse.  He had done so whilst drunk and after he had flagged down the car driven by the complainant and incorrectly accused him of previously driving in a reckless way.  Instead of cooperating with the police the offender exposed his genitals to them.  That offender had recent relevant convictions and, like Hayes, he committed his offences whilst he was on probation.  He was 23 when he committed the offences, and before he was sentenced he suffered a serious heart attack, which would render incarceration more burdensome for him than for others. 

[21]  This case presents some features which are worse and some which are not as unfavourable as in those decisions, but to my mind the most important distinguishing features are that Lidbetter and Hayes had recent, relevant convictions and were on probation when they committed their offences.  It is that which I think most significantly distinguishes Lidbetter, which otherwise would support the respondent’s submission.  The applicant was not on probation when he committed his offences and he has more promising personal circumstances.  He committed all of his offences (other than the minor offence mentioned earlier) in the year or so after he finished school and thereafter seems to have been a productive member of society, maintaining employment and supporting his family.  He presents as having good prospects for full and early rehabilitation.

[22]  That is not to say that imprisonment involving actual incarceration is not a realistic sentencing option here.  The production of the knife means that it must seriously be considered.  But I have concluded that in this case actual custody should not be imposed.  The features of the offence emphasised by the sentencing judge do call for a deterrent sentence, but it is necessary also to have regard to other factors: the impulsive nature of the applicant’s conduct in running from his unit with a kitchen knife in hand, the brevity of the period during which the applicant held the knife before he put it away as the complainant’s daughter intervened, that the applicant did not intend to or actually inflict injury with the knife, the complainant’s victim impact statement which very fairly acknowledged the absence of any long term adverse effect upon the complainants resulting from the applicant’s offending, the applicant’s early plea of guilty, his personal circumstances summarised earlier, and his apparently good prospects of rehabilitation. 

[23]  In these circumstances the requirements for a deterrent sentence, and one which punishes the applicant and denounces his antisocial conduct, are met by imposing a sentence of imprisonment for the more serious offence but ordering that it be suspended, as well as requiring the applicant to perform a substantial period of unpaid community service for his offence against the complainant’s daughter.

Proposed orders

[24]  In my opinion the appropriate orders are:

(a) Grant the application for leave to appeal and allow the appeal.

(b) Set aside the sentence imposed in the District Court.

(c) In respect of count 2 in the indictment (the first count of common assault), order that a conviction is recorded, sentence the applicant to a term of imprisonment of 12 months, and order that the imprisonment be suspended immediately for an operational period of two years, during which the applicant must not commit another offence punishable by imprisonment if he is to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.

(d) In respect of count 3 in the indictment (the second count of common assault), order that a conviction is recorded and that the applicant perform unpaid community services for 120 hours and comply with the requirements set out in s 103 of the Penalties and Sentences Act 1992 (Qld).

[25]  I note that at the hearing of the application the Court accepted the applicant’s counsel’s assurance that the applicant would consent to a community service order being made and that he had given the applicant the explanation about community service orders required by s 105 of the Penalties and Sentences Act 1992 (Qld).

[26]  FRYBERG J: The Crown conceded that this Court must re-exercise the sentencing discretion.

[27]  If it were the case that the suburb of Cairns where the offence occurred was the source of repeated conduct of the type the subject of the sentence, as the sentencing judge reported, I would impose the same sentence as he did.  In this Court the applicant challenged the existence of such repeated conduct.  In the absence of such challenge I would have been prepared to sentence on the basis of the report.  I would ordinarily assume that the judge was aware of what was happening in his district.  However the Crown did not contend that the report was correct.  It did not contend that what the judge wrote was notorious in the Cairns district.  In these circumstances I do not feel able to impose a sentence which assumes that it was.  Sitting in Brisbane I cannot take judicial notice of the matter.  For these reasons and for those given by Fraser JA, I agree with the orders which his Honour proposes in respect of the first assault.

[28]  The second assault did not involve the use of a knife.  The person assaulted (the daughter of the complainant in the first assault) did not assist in calming the situation by her aggressive intervention and foul language.  A custodial sentence was unwarranted.

[29]  I agree with the orders proposed by Fraser JA.