Penhaligon v Commissioner of Police
[2008] QDC 150
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- Penhaligon v Commissioner of Police[2008] QDC 150
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Penhaligon v Commissioner of Police[2008] QDC 150
Penhaligon v Commissioner of Police[2008] QDC 150
[2008] QDC 150
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE SAMIOS
LUKE JAMES JOSEPH PENHALIGON | Appellant |
and | |
COMMISSIONER OF POLICE | Respondent |
TOOWOOMBA
DATE 09/05/2008
JUDGMENT
HIS HONOUR: The appellant appeals against the sentence imposed by the learned Magistrate on 18 March 2008. The sentence imposed was six months' imprisonment with a fixed parole release date of 17 September 2008. The offence for which the appellant was sentenced was an assault occasioning bodily harm committed on the 12th of January 2008.
The ground of appeal is that the learned Magistrate imposed a sentence that was manifestly excessive. The facts put before the learned Magistrate included that the complainant was a disabled person having only one leg. Further, he was recovering from surgery that had been performed on his hand a number of weeks prior to the assault. It was alleged the appellant approached the complainant at the Irish Club in relation to an industrial dispute that occurred approximately 20 years before where both the appellant and the complainant were employed.
It was alleged the appellant punched the complainant four times to the head resulting in the complainant falling to the ground. It was further alleged that the appellant kicked the complainant in the head causing his head to snap backwards. As a result of the kick the complainant lost consciousness for a short period of time. It was also alleged that apart from some bruising to the face, the complainant required stitches as a result of his injuries. It was accepted that an altercation occurred between the complainant and the appellant. It was accepted that there had been antagonism, but this was in relation to the complainant seriously assaulting the appellant's brother, such that his teeth were kicked in. It was also accepted that there had been antagonism between the complainant and the appellant sum 20 years before because it was alleged on behalf of the appellant that the complainant had been a scab. It was also accepted that the appellant had one previous entry on his criminal history for violence, although it was said, and this is the fact, it was over 10 years ago. The learned Magistrate was informed that the appellant could not do community service because he works on Saturdays.
It should also be noted that the appellant pleaded guilty to the offence, and although initially showed little remorse because he said words to the effect that the complainant had this coming, he nevertheless was remorseful before the learned Magistrate.
The view the learned Magistrate took of the offences that there was punching several times, and kicking when the complainant was down strapping his head back rendering him unconscious. It is clear the learned Magistrate took a severe view of the appellant's conduct when imposing six months' imprisonment then fixing the end of that period of time is parole release date. He also imposed non-contact orders.
On the hearing of this appeal, it was accepted that the learned Magistrate erred in his approach to the sentencing in this case, that is, the learned Magistrate sentenced the appellant to six months' imprisonment but allowed more than half, in fact the entire sentence as the period before which the appellant could seek release on parole. In doing so the learned Magistrate did not give each party to the sentencing process a chance to make submissions on the point, nor did he give reasons for fixing the parole release date after more than half the head sentence. He should have done so according to the Queen v Kitson [2008] Queensland Court of Appeal 86. Therefore the respondent concedes that the Magistrate, having failed to comply with these requirements, the appellant must be sentenced afresh. That concession is in the circumstances rightly made.
On the hearing of the appeal the appellant has put before me further evidence. I have allowed that further evidence because I came to the view that it was not in the circumstances evidence that he could have necessarily anticipated, except for the medical evidence, or the references, I have decided that in light of my sentencing afresh I should receive that further evidence.
The other evidence is the statement of Mr Mayse, a witness. There is only two statements apparently available, and that is the complainant's statement, and the statement of Mr Mayse. Neither made reference to any occasion that the complainant was rendered unconscious. In fact, Mr Mayse says that the appellant threw two punches and that when he lashed out with his left foot it connected with the complainant's head it was more of a [indistinct] kick. It was definitely not a full body kick with the weight of the person's body behind it.
I have also received and accepted this could not necessarily have been available for sentencing as was an indication from Suncorp of its intention to repossess the appellant's house. The appellant has been absent from his employment as a consequence of the sentence and has been unable to contribute the necessary funds to ensure that the house payments are kept up to date. Therefore, the time in custody has been a further burden on the appellant. Further, he is being kept away from his family, and there has been repercussions in the family life.
On the one hand this was a serious assault. The appellant may not have known that the complainant had lost a leg, but nevertheless, he did assault someone who had lost a leg and someone who had just had an operation some weeks before on his hand. The appellant was 44 years of age, and therefore should have been mature enough to not let antagonisms of over 20 years and other circumstances lead him to assault the complainant, and he was not initially remorseful for what he had done. Any previous conduct of his part of the same kind, that is an assault, occurred over 10 years before and it should have had little weight in the Magistrate's decision. Should have carried little weight in the Magistrate's decision.
Notwithstanding those serious aspects, favourable to the appellant was his plea of guilty, that he was remorseful. The plea of guilty was an early plea of guilty. He had a family to support and had been gainfully employed, and the evidence shows me he could still be employed, and the risks have now occurred to his family losing the home. He also suffers from some medical conditions relating to his heart.
If these circumstances were put before the learned Magistrate, including favourable references regarding the appellant and the statement of Mr Maise was put in context. In my view, the learned Magistrate may have reached a different view on the head sentence, and the approach he might take to any parole release date. In the circumstances I allow the appeal, and as the appellant has served 53 days in custody already, I sentence the appellant to 53 days' imprisonment. I set aside the orders of the learned Magistrate made on the 18th of March 2008. I sentence the appellant to 53 days' imprisonment. I fix today, the 9th of May 2008, as the parole release date. And I declare 53 days between 18 March 2008 and 9 May 2008 as time served of the sentence.
Is there anything further, Mr Gardiner or Mr Munsie?
…
HIS HONOUR: Well, the essential things have been done, that is, the appeal has been allowed. The orders of learned Magistrate of the 18th of March 2008 have been set aside. I have sentenced the appellant to 53 days' imprisonment, and fix the 9th of May 2008 as the parole release date, and I am declaring the 53 days in pre-sentence custody between 18 March 2008 and 9 May 2008 as time served under the sentence. The issue of the costs I can resolve over next week while I am still here in Toowoomba.
Yes, subsection 4 of section 232 says, "No order as to costs may be made on the hearing or determination of an appeal in relation to an indictable offence that was dealt with summarily by Justices." So, I think you do not get them under that subsection 4 of section 232. I will just hand that back.
MR GARDINER: I will not take it further, your Honour.
HIS HONOUR: No. Is that, Mr Munsie, your thinking of it?
MR MUNSIE: That was the area. That is the section I was referring to, your Honour.
HIS HONOUR: Yes. No order as to costs.