R v Ball[2012] QCA 51

SUPREME COURT OF QUEENSLAND

[1] MUIR JA: I agree that the application for leave to appeal against sentence should be refused.  I also agree that it should be ordered that a warrant be issued for the arrest of the applicant, such warrant to lie in the Registry for seven days.

[2] CHESTERMAN JA: I agree with the orders proposed by Daubney J for the reasons given by his Honour. 

[3] DAUBNEY J:On 12 October 2011, the applicant was convicted on his own plea of guilty of one count of assault occasioning bodily harm.  He was sentenced to 18 months imprisonment, with an order that he be released on parole after having served three months in custody. 

[4] The applicant has now applied for leave to appeal against that sentence.

[5] The circumstances of the offending were set out in an agreed schedule of facts which was tendered to the learned sentencing judge.  The incident which led to the offending was described as follows:

“At approximately 3:50am on Saturday 22 January 2011 the defendant was waiting in a queue at the McDonalds Restaurant located in the Brunswick Street Mall, Fortitude Valley.  The complainant was at the counter placing an order.

The complainant was intoxicated and slow to complete his order.  The defendant got impatient and yelled toward the complainant, ‘Fucking hurry up.’  The complainant turned around and placed a finger to his lips to motion for the defendant to be quiet.  An argument erupted.  The complainant placed a hand on the defendant’s shoulder and the defendant grabbed the complainant and threw him down to the tiled floor.  The complainant got up and approached the defendant again but was held back by a friend.  The defendant and complainant continue to argue with people standing between them.

A security officer then approached and led the complainant outside.  As the complainant was being led out into the mall, the defendant approached and punched the complainant with a right closed fist to the face.  The complainant fell backwards and hit his head on the floor.  This rendered him unconscious.

The assault was captured on the McDonalds restaurant security cameras.

As the complainant was being tended to, the defendant left the restaurant and commenced walking down the Mall towards Ann Street.  He was intercepted and arrested by police a short time later and taken to the Fortitude Valey [Valley] Police Station.  He was later transported to the Brisbane watchhouse where he was formally charged in relation to this offence.”

[6] The schedule of facts also recorded that the complainant was transported to hospital, where a CT scan revealed he had sustained a subdural haematoma.  The complainant underwent an emergency craniotomy to relieve pressure on his brain.  He was discharged from hospital three days later, but was readmitted on 27 January 2011 with a worsening headache and remained in hospital until 2 February 2011.

[7] In addition to the matters stated in the schedule of facts, the learned sentencing judge was informed, as was this Court, that there was a further incident between the applicant and the complainant which was not described in the schedule of facts.  Close circuit TV footage apparently showed the complainant acting in what was described by the prosecutor below as being “in an unruly way” and also showed the complainant throwing food at the applicant and the applicant’s friends.

[8] The applicant was considerably larger than the complainant.  Before the learned sentencing judge, counsel for the applicant described his client as “a large man, heavy built”, and the complainant as “a shorter, slighter built man”.  Counsel, quite properly, told the learned sentencing judge that there was a visible difference in size between them. 

[9] In the course of sentencing the applicant, the learned sentencing judge said:

“This was offence that occurred in a public place in the early hours of the morning and in circumstances where it can be seen that the complainant was relatively blameless.  Certainly, the punch which felled him to the ground is one in which at a time in which he was being escorted from the establishment where he and you and others were attempting to buy food.

This is an offence, I think, where it is properly described as gratuitous violence being occasioned to the complainant.  It is worthwhile, I think, because of the view I formed about the matter to note, with some particularity, the circumstances of the commission of the offence.  I note also that in relation to the offence, you are accepted by your legal representative to have been a much larger person than the complainant whom you assaulted.”

[10] His Honour then recounted the facts, as disclosed in the agreed schedule, and described the injuries sustained by the complainant.  He continued:

“Violence, in public places and in circumstances where it is gratuitous violence, in my view, must be dealt with and a deterrent aspect of the sentencing becomes an important but not overwhelming or overriding consideration.”

[11] Before this Court, counsel for the applicant conceded, as he had below, that the head sentence of 18 months was unobjectionable.  It was submitted, however, that the learned sentencing judge erred in finding that this was an act of “gratuitous violence”, that this erroneous finding infected the sentencing process, particularly to the extent that it led the sentencing judge to require the applicant to serve time in custody, and that the sentence actually imposed was manifestly excessive in all of the circumstances.  There was a further submission that the learned sentencing judge erred in making the finding that the case was one of gratuitous violence without giving the applicant the opportunity to provide evidence or make submissions to the contrary.

[12] It is uncontroversial that both the applicant and the complainant were affected by alcohol at the time of the incident.  Viewed objectively, the circumstances of the offending were as follows.  The applicant and the complainant engaged in the drunken argy bargy described in the first two paragraphs of the agreed schedule of facts.  This argy bargy extended to the complainant throwing food in the direction of the applicant.  Onsite security personnel then intervened and instigated a removal of the complainant from the premises.  While the complainant was effectively in the custody of the restaurant’s security personnel, the applicant approached and punched him in the face, causing the complainant to fall to the floor and hit his head. 

[13] Both before the learned sentencing judge and before this Court, counsel for the applicant expressly disclaimed an argument that the complainant’s behaviour was provocative.  In the court below, counsel for the applicant said that the lead-up to the punch could be categorised as a “mutual argument”.  Counsel for the applicant further conceded before the learned sentencing judge that at the point at which the applicant assaulted the complainant, the applicant’s actions “were indefensible”.

[14] It seems to me that the learned sentencing judge’s description of the punch which injured the complainant as “gratuitous violence” was completely open on the agreed facts before him.  Even accepting that there had been some argument between the parties in the lead-up period, the fact is that the arguing had ceased, security personnel had intervened, and the complainant was being led from the premises by those security personnel.  Given that the applicant’s punch to the complainant came out of the blue at a time when the complainant was being escorted from the premises, the description of the assault as “gratuitous violence” was apt.  The learned sentencing judge’s findings in that regard were reinforced by the concession properly made that the applicant’s actions “were indefensible”.

[15] The learned sentencing judge therefore committed no error in characterising the assault in that way.  Nor was there any lack of opportunity for the applicant to make submissions in relation to the nature of the assault which the applicant had committed.  Submissions were made to the judge below about appropriate penalty, in which it was conceded that a sentence of up to 18 months was “certainly in range”.  The thrust of the argument below was for the applicant to be allowed to remain in the community.  A number of reasons for that were advanced.  One of those was that this was not an offence attended by circumstances of aggravation, such as being armed or in company, but was “a single punch”.  Further, counsel for the applicant below expressly submitted:

“The defendant has lost consciousness either from the punch or the fall, but it was not a protracted or gratuitous violence.  It was not premeditated, and the injury was not life-threatening.”

[16] In light of those submissions, it is difficult for the applicant now to argue that he was denied procedural fairness.

[17] No error has been demonstrated on the part of the learned sentencing judge.  The head sentence of 18 months was conceded to be within range, and the requirement that the applicant serve three months in actual custody was clearly within the sentencing discretion.

[18] Accordingly, the application should be dismissed.

[19] After being sentenced, the applicant was held in custody for five days, and then released on bail pending appeal.  It will therefore be necessary for a warrant to issue for the arrest of the applicant, but that warrant should lie in the Registry for seven days.  Further, to give effect to the sentence imposed by the learned sentencing judge, the parole release date for the applicant should be fixed at three months less five days from the date he is returned to custody.