SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The applicant was originally charged with child stealing (count 1), and jointly with KLC and SLM, assault occasioning bodily harm in company (count 2).  All three accused pleaded not guilty at the commencement of their trial in the District Court at Brisbane on 24 February 2009.  The next day the prosecution accepted KLC's and SLM's pleas of guilty to a separate indictment containing a charge of simple assault.  The prosecution entered a nolle prosequi on count 2 in respect of the charges brought against KLC and SLM.  On 2 March 2009, the jury found the applicant not guilty of count 1, but guilty of count 2.  On 11 March 2009, the judge sentenced all three offenders.  KLC was fined $500 without conviction.  SLM was fined $1,000 without conviction.  The applicant was sentenced to 12 months imprisonment with his parole release date fixed at 11 June 2009, that is, after three months.  He applies for leave to appeal against his sentence contending that the judge failed to give sufficient weight to the jury's not guilty verdict in relation to count 1.  Alternatively, he contends that his sentence is manifestly excessive in the circumstances.

The proceedings in the District Court

[2]  The applicant was 50 years old at the time of the offence and 52 at sentence.  He had no relevant prior convictions although his otherwise unblemished record was marred by a 2005 conviction for soliciting for prostitution, for which he was fined. 

[3]  Count 2 occurred in this way.  The applicant's daughter, KLC, had been in a de facto relationship with the complainant.  They had two children, a boy, T, who was school aged, and a daughter, K, who was not quite three at the time of the offence.  SLM was the applicant's son-in-law and was married to another daughter of the applicant.  T and K were ordinarily in the custody of KLC, but the complainant had regular access to them.  KLC asked the complainant to look after T and K whilst she was moving house.  He agreed and took possession and control of the children.  KLC and the complainant did not discuss when the children would return to her.  KLC decided she no longer wanted the complainant to look after the children.  The complainant did not agree.  On 2 September 2007, the applicant and KLC went to the Petrie police station and reported that the children had not been returned as requested.  Police visited the complainant's residence to perform a welfare check.  They reported to the applicant and KLC that the children were being properly cared for and were not in any danger.  The applicant said to the police officer, "I'll just go and kidnap the kids then".  The police officer warned the applicant that he could be charged if he did this and that the proper channel was to go through the family law courts. 

[4]  On 4 September 2007, the applicant attempted to take K from the rear of the stationary car when the complainant was in the driver's seat but passers-by prevented him.  He was charged with count 1 in respect of this incident.  It was and remains common ground that his jury acquittal on count 1 was because he proved that he was at the time acting in good faith, believing he had a right to possession of K: see s 363(3) Criminal Code 1899 (Qld). 

[5]  The applicant persisted in his attempt to have K returned to KLC.  The next day, on 5 September 2007, the applicant, KLC and SLM went to a shopping centre car park where they believed the complainant and K would be.  The complainant emerged from the shopping centre into the car park, pushing a shopping trolley in which K was seated.  KLC tried to take K from the trolley.  The complainant put his arms around the child to prevent this.  The applicant placed the complainant in a headlock from behind.  KLC and SLM held the complainant's arms and tried to pull him away from the trolley.  This episode constituted the counts of simple assault against KLC and SLM.  The applicant then stepped back and kicked the complainant in the buttocks or lower back with sufficient force to cause him to fall to the ground.  This enabled KLC to remove K from the trolley.  The complainant suffered minor soft tissue injuries.  He had some discomfort to the neck, arm and shoulder resulting from the fall to the ground and he had some difficulty walking for a time.  This pain and discomfort persisted for a couple of weeks. 

[6]  The prosecutor at sentence made the following submissions.  The applicant's offence was a gratuitous attack on the complainant from behind in company.  It was persistent.  He deliberately kicked the complainant a number of times, including when he was on the ground.  A conviction should be recorded.  The applicant demonstrated no remorse.  The appropriate range was a term of imprisonment between six and 12 months which could be wholly suspended because of his lack of prior criminal history.  In support of that submission, he referred to three authorities: R v Neivandt;[1] R v Beer & Massey[2] and R v Lude; R v Love.[3]

[7]  The judge expressed surprise at the prosecution submission that the sentence could be wholly suspended as the offence involved deliberate defiance of the rule of law.  A dispute as to custody or possession of children should not be resolved by a fight in a shopping centre car park, particularly as the applicant had been warned by police not to take the law into his own hands. 

[8]  Defence counsel made the following submissions at sentence.  The applicant was not aware of any pre-existing injury to the complainant and did not kick the complainant whilst he was on the ground.  The applicant had otherwise been a solid citizen.  A number of favourable references were tendered attesting that the present offence was out of character.  He had been married for 32 years and raised three children.  His son died in 2002 of cancer.  The applicant had an excellent work history.  He lived with and supported his wife and helped KLC and her children.  He had been actively involved for many years in a community service club in which he had played a leadership role.  He had also been involved in his children's community sporting teams.  He was a diabetic and suffered from sciatic nerve injury.  He was a taxi driver by occupation.  A conviction for this offence would affect his ability to remain licensed as a taxi driver.  Although a term of imprisonment was appropriate as a deterrent penalty, it should be fully suspended because of the mitigating factors. 

[9]  In sentencing, the learned primary judge made the following observations.  The applicant should have encouraged KLC to take proceedings under the Family Law Act 1975 (Cth) so that her children could be lawfully returned to her.  The applicant and KLC had been assured by police that there was no reason to be concerned about the children's safety and welfare.  Instead, T was taken out of school.  The applicant attempted to snatch K from the back seat of a car but was prevented from doing so by some alert passers-by.  Then, the applicant, KLC and SLM waited for the complainant and K at a shopping centre car park.  The attempt to take K from the shopping trolley in circumstances where the complainant was resisting must have been traumatic for K.  It would not have helped her welfare.  "It seems to have a lot to do with [the applicant] and [KLC] getting what they wanted."[4]  The applicant had the complainant in a headlock.  He then stepped back and kicked the complainant hard in the buttocks or lower back. 

[10] The judge was not satisfied that the applicant knew the complainant had a particular pre-existing injury and was deliberately kicking him in a way to aggravate that injury.  The judge, however, considered the applicant kicked the complainant with considerable force because it caused the complainant to loosen his grip on the trolley and fall to the ground.  This enabled the applicant to remove K from the trolley.  The judge was not persuaded that the applicant kicked the complainant whilst he was on the ground.  Nevertheless, the applicant's offending involved a good deal of violence towards the complainant and demonstrated a preparedness to use whatever violence was required in order to secure possession of K.  The offending raised important considerations of public policy in a civilised society.  The custody of children is not determined by who can assemble the most muscle in a shopping centre car park.  Custody of children should be resolved in accordance with the law.  The applicant was:

"deliberately acting in defiance of the law, and that gives this offending a particularly serious aspect and it engages what I would regard as an important consideration of public policy that the rule of law must be upheld by the Court."[5]

[11] The applicant had shown no remorse.  After adverting to the applicant's personal circumstances and the fact that a conviction could affect his ability to hold a taxi driver's licence and the references tendered on his behalf, the judge convicted and sentenced him to 12 months imprisonment with a parole release date fixed after three months.  KLC was fined $500 without conviction and allowed six months to pay.  SLM was fined $1,000 without conviction and allowed nine months to pay.

The report of the sentencing judge

[12] Unusually, the learned sentencing judge has provided a report for this Court in which he relevantly states:

"With regard to ground 2 in the Notice of Appeal, I approached the sentence for the offence of which the applicant was convicted on the basis that he had not committed the criminal offence of which he was charged in respect of the incident the subject of Count 1, but that otherwise the verdict in relation to Count 1 was irrelevant to the question of sentence for Count 2.

In case you do not have the transcript of my summing up, it included the following passage, as part of what I said about the defence to Count 1:

'Now, it is not a question therefore of what the real legal position is. It's also not a question of whether you think he ought to have behaved in the way that he admits that he did on that occasion. You might take the view that you disapprove of the way he behaved. But that is really not relevant to whether you are persuaded, on the balance of probabilities, that he did honestly believe that he had a right to do what he did on that occasion. It's simply concerned with his state of mind, that he actually had an honest belief at that time.' "

The submissions in this application

[13] Mr P J Davis SC, who appears in this application on behalf of the applicant, makes the following submissions.  The judge wrongly sentenced the applicant for the offence of child stealing on which he was acquitted.  The jury, in acquitting the applicant on count 1, found that on that occasion he acted in good faith believing he had a right to take K under s 363(3) Criminal Code.  The judge was therefore wrong to sentence the applicant on the basis he committed count 2 "deliberately acting in defiance of the law".  Once it is understood that the jury found the applicant was acting in good faith in attempting to regain custody of K, the surrounding circumstances merely explain why a 52 year old man like the applicant, with no previous history of violence, committed this assault in a public car park.  Alternatively, a sentence requiring actual custody was manifestly excessive.  The application for leave to appeal should be granted, the appeal allowed and the sentence set aside.  The appropriate sentence is a fine without conviction.  As the applicant has already served 24 days imprisonment, he should be re-sentenced under s 19(1)(a) Penalties and Sentences Act 1992 (Qld) to be released absolutely without a conviction.

[14] Ms Loury, who appears for the respondent in this application, contends that the cases of Nievandt, Beer & Massey and Lude and Love demonstrate that the sentence was within the appropriate range.  The judge's comments with which Mr Davis takes issue were appropriate in the context of sentencing the applicant for assaulting and causing bodily harm to the complainant in company and in order to take possession of K.  The fact that the applicant had been warned by police previously not to take matters into his own hands demonstrated a flagrant disregard for the law.

Discussion and conclusion

[15] I am not persuaded the learned primary judge erred in taking into account the undesirability of the vigilante aspects of the applicant's offending and was therefore effectively sentencing the applicant for child stealing.  It is true that in acquitting on count 1 the jury accepted that the applicant acted in good faith, honestly believing he had at least a moral right to possession of K on 4 September 2007.  Whether the applicant was also acting in good faith believing he had a moral right to possession of K when he committed the offence of assault occasioning bodily harm in company the following day was not an issue directly canvassed at sentence.  No doubt that was because a claim in good faith to a right to possession of the child under s 363(3) is not a claim to an entitlement to assault and cause bodily harm to the father of the child whilst in the company of two others.  The defence to child stealing under s 363(3) on which the applicant successfully relied in respect of count 1, was not a defence to count 2, assault occasioning bodily harm in company under s 339 Criminal Code, on which the applicant was convicted.  Whether the applicant honestly believed he was entitled to take K from the complainant in the supermarket car park on 5 September 2007 to return her to her mother was irrelevant to the elements of the offence of assault occasioning bodily harm in company. 

[16] Another flaw in Mr Davis's contention is that there is a plain distinction between acting in good faith and acting reasonably.  In committing count 2, the applicant was acting contrary to the advice he had received from police three days earlier.  The judge's sentencing observation that the applicant was therefore deliberately acting in defiance of the law was consistent with a finding that the applicant, in assaulting the complainant and causing him bodily harm in company to gain possession of K, was acting unreasonably.  That finding was not necessarily inconsistent with the jury's compassionate verdict on count 1 that the applicant honestly believed he was morally entitled to take the not yet three year old K from the shopping trolley and return her to her mother.  The judge was entitled to find that the applicant in committing count 2 was deliberately acting in defiance of the law.  In stating this when sentencing the applicant on count 2, the judge was not effectively sentencing the applicant for child stealing.  The applicant's contention that the judge erred in this way is not made out. 

[17] The alternative contention on behalf of the applicant is that his sentence was manifestly excessive.  The applicant was a mature man.  He was obviously so emotionally involved in this matter that he was not thinking clearly and rationally in his attempt on 5 September 2007 to regain possession of his granddaughter and to assist his daughter.  It is impossible not to feel compassion for him and his predicament both then and now.  But the advice he was given by police on 2 September 2007 was sound.  The primary judge's concern to impose a sentence that discouraged vigilantism and encouraged citizens to follow lawful means to enforce their rights was also sound.  The complainant was entitled to the protection of the rule of law.  A wrestling match over a toddler in a shopping centre car park amounting to an assault occasioning bodily harm in company is not the way a civilised society settles custody disputes.  The applicant's behaviour could not have been in the best interests of K.  The applicant's offending created a real risk that innocent members of the public witnessing the affray and understandably concerned for the welfare of K could become involved and subsequently harmed in the fracas. 

[18] The maximum penalty for this offence was 10 years imprisonment.  As the complainant was injured, s 9(3) Penalties and Sentences Act applied to make the principles mentioned in sub-s 9(2)(a) inapplicable: a sentence of imprisonment was not a last resort and a sentence that allowed the offender to stay in the community was not necessarily preferable.  Instead, the sentencing court must have primary regard to the matters set out in s 9(4), namely:

"(4) In sentencing an offender to whom subsection (3) applies, the court must have regard primarily to the following—

1. the risk of physical harm to any members of the community if a custodial sentence were not imposed;
2. the need to protect any members of the community from that risk;
3. the personal circumstances of any victim of the offence;
4. the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;
5. the nature or extent of the violence used, or intended to be used, in the commission of the offence;
6. any disregard by the offender for the interests of public safety;
7. the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
8. the antecedents, age and character of the offender;
9. any remorse or lack of remorse of the offender;
10. any medical, psychiatric, prison or other relevant report in relation to the offender;
11. anything else about the safety of members of the community that the sentencing court considers relevant."

[19] Those factors generally favoured the applicant.  He had no relevant criminal history and he had been a respected member of the community for many years.  He would probably lose his taxi licence and his livelihood, at least for a time, because of this conviction and sentence.  It was unlikely that the applicant would be a future risk to the complainant or to any other members of the community.  Fortunately, the injury to the complainant was neither very serious nor long-lasting, although it easily could have been.  The applicant, however, had shown no remorse or insight into the seriousness of his conduct (s 9(4)(i)).  Nor did he have the mitigating benefit of a plea of guilty (s 13).  The sentencing judge's concern about the applicant's contempt for the rule of law and his resort to violence to effect his daughter's rights in relation to K certainly warranted condign deterrent punishment.  The signficant mitigating factors in this sad case would have allowed the sentencing judge to fully suspend a sentence of imprisonment of about 12 months.  But assaulting and causing bodily harm to the carer of a young child in a public place in the presence of the child and in the company of others was appalling behaviour.  It was objectively no less so because the applicant believed he was morally entitled to take K and return her to his daughter.  Requiring the applicant to serve three months of that 12 month sentence in actual custody before release on parole was a harsh penalty, but I am not persuaded that it was manifestly excessive.

[20] It follows that I would refuse the application for leave to appeal against sentence.

[21] I would endorse, however, the observations of the learned trial judge made for the benefit of the taxi licensing authorities, that the unfortunate and unique circumstances leading to the applicant's commission of this offence would appear to have no bearing on the question of his fitness to continue to drive taxis.

[22] KEANE JA: I agree with the reasons of the President and with the order proposed by her Honour.  I also agree with her Honour's endorsement of the view that the circumstances of the applicant's offending appear to have little relevance to his fitness to hold a taxi driver's licence.

[23] CHESTERMAN JA: I agree with the reasons of McMurdo P.