Washington v Bradley[2007] QDC 111

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against a sentence imposed upon the appellant after he pleaded guilty in Toowoomba Magistrates Court on 10 November 2006 to one count of assault causing bodily harm. He was sentenced, on 13 November 2006, to 18 months imprisonment with a fixed parole date of 6 April 2007. In effect, then, he was to serve six months imprisonment, although a declaration of 42 days pre‑sentence custody was made. He has, I was informed, satisfactorily served his term of custody and is presently on parole release.

2. [2]
   The appeal is brought on the ground that the sentence was manifestly excessive and that the learned Magistrate fell into error during the sentencing process; and, that the sentence should be reduced from 18 to 12 months.

3. [3]
   The appellant was born 15 January 1977 and is now 30. He has a significant criminal history, including convictions for assault occasioning bodily harm in 1994, and manslaughter in 1999 for which he was sentenced to seven years. He had only been back in the community for approximately 12 months, following that sentence, when this offence occurred.

4. [4]
   Detailed submissions about his limited education and troubled upbringing, and history of drug abuse were placed before the sentencing court. The first ground of complaint is that the learned Magistrate failed to mention these elements of the appellant’s background in his sentencing remarks. The submissions about these matters were, however, lengthy and very detailed (occupying four pages of transcript) and it is simply inconceivable they were not within the mind of the learned Magistrate when he came to sentence.

5. [5]
   The second complaint is that the learned magistrate failed to mention the “...significant fact that (the appellant) had been struck first by the complainant”. The transcript shows, however, at two places that submissions were made to the effect that the complainant had tried to push the appellant off another person whom he was assaulting, and that the appellant himself felt “…some sort of force applied to the side of his face”^[1]

6. [6]
   The assertion has to be considered in light of the relevant facts surrounding the offence with which the appellant was charged. The complainant knew the appellant and was also a friend of the appellant’s partner at the time. On the night in question they were all at a party. Some time earlier in the evening the complainant was a witness to the aftermath of an altercation between the appellant and his partner, in which he apparently assaulted her. At some later time the complainant and the partner left the premises in a manner which did not alert the appellant to the fact they were doing so. He caught up with them, however, in a nearby street. Another altercation ensued and the appellant and the partner fell to the ground, and at that point the complainant intervened.

7. [7]
   The complainant was, for her trouble, punched twice in the face, and knocked unconscious by those blows. She fell to the ground, and was kicked.

8. [8]
   As Counsel for the appellant was obliged, fairly, to concede, nothing in these circumstances would have supported a submission that the complainant actually assaulted the appellant, or that there was any basis for an argument that provocation, or retaliation explained or to any extent justified the appellant’s conduct. There is, for these reasons, no basis for concluding the learned magistrate fell into error in this respect.

9. [9]
   The next complaint arises from the use, by the learned Magistrate during his sentencing remarks, of a phrase to the effect that the complainant was “seeking to leave premises” when, it is said, that did not accord with submissions from either the prosecution, or the defence. Those submissions point pretty clearly, however, to the conclusion that the two women were in the process of leaving the premises on foot. The matter is one of semantics and, again, does not suggest any error affecting the sentencing process.

10. [10]
    The final complaint is that the sentencing remarks contain no reference to the fact that no injury was sustained by the complainant when, as was agreed, she was kicked after she had fallen to the ground. So much appears, in fact, to have been accepted by the court in remarks in an exchange at T8, ll3-9 and confirmed later, at the same page at line 47 when the prosecutor conceded that “it’s not alleged that that kick did any damage”. This submission, too, fails to establish any error on the part of the sentencing court or that the sentencing discretion miscarried.

11. [11]
    It was submitted in the alternative that the head sentence of 18 months exceeded the proper “tariff” applicable in the circumstances arising here which dictated, it was submitted, a head sentence of 9‑12 months with release, either on parole or with a partial suspension, after 3‑4 months.

12. [12]
    Three decisions of the Court of Appeal were advanced in support of the submission: R v Jones [2003] QCA 474; R v Taylor [2004] QCA 311; and, R v Payne [1997] QCA 219. In Jones the appellant pleaded guilty to assault occasioning bodily harm, a plea accepted in satisfaction of a more serious charge. He was a male aged 44 who punched a 70-year-old person twice in the face, fracturing his skull and inflicting injuries requiring a month’s hospitalisation. The appellant made admissions but initially gave a false account that the complainant had tried to kick him (which he later retracted). He was sentenced to 18 months, with a suspension date after three months. The appellant had, however, no history of violent offending (unlike the appellant here) and had actually called the emergency phone number and placed his victim in the recovery position until help arrived. It was accepted, too, that the alleged injury was largely attributable to the complainant’s head striking the ground. These features distinguish it from the present case.

13. [13]
    In Taylor, the initial sentence of nine months’ imprisonment, suspended after three, was reduced to a wholly suspended sentence. The defendant pleaded guilty to assaulting his defacto partner. He was 23, with one prior conviction for common assault, and three for serious assault. During the relevant event he threw a pie at the victim, who threw a can of soft drink back at him. He then pushed her to the ground and kissed her, to comfort her, but she reacted by biting his ear and drawing blood. He then punched her in the face causing a bruise to the left side of her skull, a lump on the back of her head, a broken nose, a haemorrhage in the left eye, and permanent reduction of sensation in the left cheek.

14. [14]
    Taylor’s criminal history was, however, less serious than that of the appellant here. As the judgment of the Court of Appeal in that case noted, at para 18:

It is apparent in considering comparative sentences that ultimately the appropriate range of sentence of an assault occasioning bodily harm depends on the facts and circumstances of that assault and the extent and manner in which each of the matter set out in s 9(4) of the Penalties and Sentences Act 1992 applies to the assault, the offender, and the victim.

15. [15]
    In Payne, a sentence of 12 months was reduced to allow release on parole after four months. The appellant was aged 25 and had no prior convictions. The assault arose from a domestic argument in which the appellant had kicked the complainant a number of times in a prolonged attack. There was, however, what was termed “provocative conduct” on the part of the complainant, and that is not an element here. The case is also distinguishable by reason of the appellant’s absence of any criminal record.

16. [16]
    This analysis shows the sentencing court was properly and fully informed of all factors material to the sentencing discretion, and took them into account. The decisions mentioned in submissions are not persuasive that the head sentence was outside an appropriate range. The sentencing discretion is, as the Court of Appeal has noted in the passage set out earlier, to be exercised in a way which fits the facts and circumstances arising in each case. That is what has occurred here, and no error on the part of the learned Magistrate has been shown. The sentence could be described as being towards the higher end of the range which might have been imposed, but it is not discordant with the legislation or the sentencing principles which operated in this instance.

17. [17]
    For these reasons, the appeal is dismissed.