R v Stelling[2015] QCA 57

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Atkinson J’s reasons for refusing this application for leave to appeal against sentence.

[2] ATKINSON J: The applicant seeks leave to appeal a sentence imposed upon him in the District Court in Ipswich on 1 September 2014.  On that day, he pleaded guilty to one count of grievous bodily harm (count one) and one count of serious assault (count two).  On count one, he was co-accused with Nathan Dean Gillam.  On that count, he was sentenced to two years’ imprisonment, and on count two, to 18 months’ imprisonment.  The sentences were ordered to be served concurrently.  His parole release date was fixed at 1 June 2015, that is, after he had served nine months of the term of imprisonment.

[3] The offences occurred on 4 May 2013.  The applicant and Gillam were inside a Woolworths supermarket in a shopping centre complex just before closing time on a Saturday afternoon.  A checkout assistant attempted to inspect the bags they were carrying, but they would not stop.  The duty manager of the store, Benjamin Simons, was alerted and walked up to the checkout area to try to cut them off.  Mr Simons called out to Gillam and the applicant, asking to check their bags, but they ignored him and kept walking.  He followed them out of the store and into the shopping centre.  Mr Simons called out for assistance from the centre security guard, Matthew Kawelmacher.  As a security guard for the shopping centre, Mr Kawelmacher had a duty to keep the peace and assist in this situation of suspected shop theft.

[4] All of a sudden, Gillam came over and punched Mr Simons in the mouth.  Mr Simons tried to prevent further punches and he and Gillam wrestled to the ground.  Gillam continued throwing punches at Mr Simons.  At that point, after seeing what was happening, both Mr Kawelmacher and the applicant Stelling turned back and ran towards them.  Mr Kawelmacher reached them first.  He was then punched to the side of the head by the applicant, Stelling.  Mr Kawelmacher lost consciousness momentarily and stumbled into Mr Simons, who was on the ground with Gillam.  The applicant, whilst leaning downwards, continued to punch Mr Kawelmacher to the upper body about seven times.  Stelling then joined in with Gillam and punched Mr Simons twice.  Gillam kneed Mr Simons to the face.  Both Gillam and Stelling then walked away.  Police and an ambulance were called.

[5] Mr Simons was more seriously injured than Mr Kawelmacher.  Mr Kawelmacher was treated at the Ipswich Hospital for concussion and a neck sprain.  He had visible red marks on his face and, on examination, a small bruise to the scalp and tenderness to the neck were found.  Mr Simons suffered bruising to his face and right ear, a scratch on his neck and bruising to his right rib area.  A CT scan showed a displaced nasal bone fracture and examination showed some deviation to the left.  He has undergone two surgical operations, which required many months of recuperation.

The applicant’s submissions

[6] The applicant’s only ground of appeal was that the sentence imposed upon him was manifestly excessive.  He filed handwritten submissions in support of that ground.  In those submissions, he contended that he should have been sentenced to serve a term of imprisonment of eight months, rather than nine months.  He then submitted that the seven months he had served was enough punishment.  The arguments he put in support of this submission were that eight months, rather than nine months, was one-third of two years; he is missing his very young daughter and will not be present for the birth of his son, due in April; he had got his life back on track between the offence and being sentenced; and he was not the main offender and did not think he should have been charged with grievous bodily harm.

The respondent’s submissions

[7] The respondent’s submissions were filed without the opportunity to see the submissions filed on behalf of the applicant.  The respondent referred to the personal circumstances of the offender, including his prior criminal history, the circumstances of the offences and additional matters taken into account by the sentencing judge.  The respondent submitted that the applicant fell to be sentenced for two instances of unprovoked violence committed in public.  Serious injury was caused to one complainant and the other was rendered unconscious, even before the applicant’s persistent assault.  Both complainants were acting in the execution of their duties.  The respondent contended that, whilst considerations of general deterrence and public denunciation were important, personal deterrence was of considerable significance in this case.  It was said to be appropriate to impose a period of actual imprisonment on the applicant, given his previous convictions and imprisonment for offences of violence.

Consideration

[8] An examination of the material before the learned sentencing judge and the sentences imposed for similar offending referred to in various Court of Appeal cases demonstrates that the sentence was not manifestly excessive.

[9] In addition to the objective seriousness of the circumstances of the offence referred to earlier in these reasons, the learned sentencing judge took into account the applicant’s personal circumstances.  He was 21 at the time of sentencing and only 19 at the time of the offending.  He had a criminal record.  In 2010, he committed offences of public nuisance and other street offences.  In the first half of 2011, he was dealt with for stealing, unauthorised dealing with shop goods, assaulting or obstructing a police officer, and committing public nuisance.

[10] On 12 October 2011, he was convicted and sentenced on two counts of serious assault in the form of assaulting, resisting or wilfully obstructing a public officer; one count of unlawful possession of suspected stolen property; two counts of assault occasioning bodily harm; one count of contravening a direction or requirement; and two counts of assaulting or obstructing a police officer.  The serious assault offences related to assaults committed by him upon ambulance officers and police officers who had been called to assist the ambulance officers.  The assault occasioning bodily harm involved him punching someone at a bus stop in Ipswich.  He was sentenced to three months’ imprisonment on the serious assault charges and 10 months’ imprisonment, to be served concurrently, on the assault occasioning bodily harm.  The periods that he had spent in pre-sentence custody were declared time spent under the sentence and he was given immediate parole release.  However, whilst on parole, he continued to commit offences.

[11] On 27 March 2012, he was convicted of common assault, which involved punching another person at a train station.  He was given 18 months’ probation.  Again, he continued to commit offences and was eventually dealt with for breach of the probation order.  That was on 25 June 2013, which was the last entry in his criminal history prior to his conviction for these offences, which had been committed one month earlier.

[12] A court report obtained on 29 August 2014 reported that his response to supervision under previous community based orders was unsatisfactory.  It detailed that he had reoffended persistently and failed to report on a number of occasions.  He failed to attend appointments made for him to receive counselling.  He breached his probation by testing positive to drugs on one occasion.  He also consumed alcohol in breach of a direction to abstain from consuming alcohol.  He was regarded as unsuitable for future community based orders.

[13] The learned sentencing judge considered the effect of this offending upon the victims.  Her Honour also took into account the references provided by the applicant’s family members, the fact that he had a young child and that his partner was pregnant with another, and that he was trying to turn his life around.

[14] In R v Barry,[1] the court refused leave to appeal a sentence of two years’ imprisonment, suspended after six months with an operational period of three years, on a plea of guilty on one count of grievous bodily harm.  The applicant had been sentenced as a co-offender to another man, Bradney, who was the more serious aggressor of the two.  Bradney was sentenced to three years’ imprisonment, cumulative upon three years imposed for other offences of assault occasioning bodily harm, dangerous operation of a motor vehicle and going armed in public.  He was given a recommendation for eligibility for parole after two years.  Like the applicant in this case, Barry had been involved in an unprovoked assault on a stranger in public.  His co-offender had inflicted more serious blows, but Barry had also kicked the complainant, who suffered similar injuries to the complainant in this case.  Barry had only one minor drug offence in his history, unlike the applicant in this case, who has the much more serious criminal history to which I have referred.

[15] In R v Leapai,[2] a sentence of two years’ imprisonment, suspended after six months with an operational period of three years, was upheld.  The applicant and his co‑offender were involved in a brawl with a security officer at a night club.  He was grossly intoxicated.  There was a long delay between the offending and his sentencing.  He had no criminal history, was in fulltime employment and had been abstinent from alcohol for three years.  He had achieved considerable sporting success and helped disadvantaged youth in his area.  He had many highly complimentary references.  He had written a letter of apology to the complainant.  The court accepted that the applicant had clearly reformed, had become a positive, contributing member of the community and was without any criminal history.  However, it also noted that the complainant had been doing a difficult job and that he and those in similar positions who are acting lawfully need to be protected from thuggish behaviour.

[16] In R v Clarke,[3] the court held that the highly unusual and special circumstances of the applicant and of the offence of grievous bodily harm warranted a conclusion that the sentence was manifestly excessive.  The sentence originally imposed was of two-and-a-half years’ imprisonment, suspended after a period of nine months with an operational period of three years.  Clarke was 37 years old when sentenced, had no prior criminal history and was otherwise of good character.  He assaulted the complainant, who was his brother-in-law, after the marriage of the complainant and the applicant’s sister had broken down and the applicant’s sister and her children were forced to leave their home.  There were also allegations of inappropriate behaviour by the complainant to one of the applicant’s sister’s children.  When the applicant, who was employed by the complainant, raised his sister’s predicament with the complainant, a heated exchange occurred, as a result of which the complainant dismissed the applicant from his employment and demanded the return of a motor vehicle and equipment.  The applicant then attacked the complainant.  The offences were out of character and occurred spontaneously.  He exhibited remorse.  The head sentence of two-and-a-half years’ imprisonment remained in place, but was suspended after the 71 days he had by then spent in custody.

[17] None of these cases are, of course, entirely the same as the present case, but all serve to demonstrate that the imposition of a head sentence of two years’ imprisonment on the count of grievous bodily harm and 18 months’ imprisonment on the count of serious assault were not excessive.  The early parole release date recognised that he should receive a discount for the plea of guilty.  While an offender is often required in that situation to serve one-third of his sentence, that is not a precise mathematical calculation but merely indicative of the kind of discount which is ordinarily given for a plea of guilty.  The learned sentencing judge took into account the other matters to which the applicant refers in his submissions: that he has a young child and his partner is expecting another, that he has begun to rehabilitate himself and that he was not the main offender on the charge of grievous bodily harm.  However, the facts referred to show that he assaulted both complainants himself and was also a party to the more serious assault on Mr Simons by his co-offender.  The submission that he should not have been charged with grievous bodily harm is without foundation.

Conclusion

[18] There is no basis to conclude that the sentence imposed was manifestly excessive.  Accordingly, the application for leave to appeal should be refused.

[19] APPLEGARTH J:  I also agree with Atkinson J’s reasons for refusing this application for leave to appeal against sentence.