Taylor v Commissioner of Police
[2009] QDC 177
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- Taylor v Commissioner of Police[2009] QDC 177
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Taylor v Commissioner of Police[2009] QDC 177
Taylor v Commissioner of Police[2009] QDC 177
[2009] QDC 177
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE EVERSON
No 4 of 2009
MATTHEW JAMES TAYLOR | Appellant |
and | |
COMMISSIONER OF POLICE | Respondent |
MACKAY
DATE 23/06/2009
JUDGMENT
HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act in respect of a sentence handed down in the Magistrates Court at Mackay on 8 January 2009. On that day the appellant was convicted of two counts of contravening a requirement and received a fine of $225 in each instance. He was also convicted of one count of public nuisance and received a sentence of 18 months probation. In all three instances convictions were recorded.
In the appellant's outline of argument at paragraph 2 it is stated that the appellant submits that the learned Magistrate imposed penalties that were within range and not manifestly excessive in each of these instances.
However, the appellant was also sentenced for one count of assault occasioning bodily harm on the same date, in respect of which the learned Magistrate imposed a sentence of three months' imprisonment, suspended after serving one month for an operational period of two years.
It is submitted by the appellant that the learned Magistrate imposed a penalty in this regard that in all the circumstances was manifestly excessive.
The offending arose out of a scuffle, which occurred on 20 December 2008 in the Mackay CBD area, which began near the corner of Wood and Victoria Streets. The factual basis for the sentencing is materially set out in the transcript, which is Exhibit "PWM1" to the affidavit of Mr Moore, filed on 22 June 2009. It is stated that at 2.30 a.m. on this date in this area, police noted a fight starting and that in an effort to stop the fight police restrained the defendant until calm could be restored to the area. Police were then approached by the complainant, who advised them that he had been assaulted by the defendant. He stated to police that he and others had been walking along the CBD area when some of them became involved in an altercation. The complainant had assisted in subduing the altercation and as the parties were dispersing, the defendant approached the complainant and struck him with a closed fist to the left side of his face. When asked by the complainant why he had struck him, the defendant replied, "Because you got in my way. I have had seven years of boxing, I can hit anyone I like."
The complainant was not seriously injured as a consequence of being struck by the appellant. It is stated at page 6 of the transcript that police observed a small cut above the complainant's left eye brow, and there was minor bleeding and some swelling to the general area.
The learned Magistrate was particularly scathing of the words the appellant used in the course of his striking of the complainant. Whilst taking into account mitigating factors, including the fact that the complainant did not have a criminal history involving any offences of violence, that he had given up drinking, was remorseful and that he intended to go to university in the near future, he none the less expressed the view that a period of imprisonment was necessary, having described the complainant in the course of the hearing as a thug, earlier at page 6 of the transcript, he stated "All you are is a thug".
It is clear that the complainant's criminal history, which is exhibited to the defendant's outline of argument, whilst containing a number of entries for what might be termed minor street offences, does not contain any entries for offences of violence of the type the subject of the sentencing remarks by the learned Magistrate.
The appellant is a young man. He was born on 26 February 1986, and has an impressive work history as an underground miner. He informed the Court in the course of the hearing that he was intending to commence a university degree in coal mine operations and management this year. The learned Magistrate none the less took the view that the behaviour of the appellant on the evening in question and in particular the words he used contemporaneously with his attack on the complainant, were such that a period of imprisonment was called for. At page 3 of his decision he stated "The authorities in this indicate, and there's some minority decisions of the Court of Appeal - say that the deterrent affect of violence on the streets of Queensland is - must not be underestimated."
He concluded his sentencing remarks in the following terms:-
"Now, I hope the message gets through to you and other like-minded thugs like you, Mr Taylor, that want to go around punching people in the streets for no reason. This is not on and if they persist in it, they go to prison just like you have."
Although the Court of Appeal has made some comments about street violence in the context of much more serious offending, I am unaware of any decisions of the Court of Appeal which suggest that it is necessary that an actual period of imprisonment be served for offending of the type the subject of this appeal. Indeed, the only authorities which I have been provided with are R v. Monro [2002] QCA483 and more significantly, R v. Coutts [2008] QCA380. They may be seen as authority suggesting otherwise, at least to the extent that for offending of this severity a period of actual time served in prison is not condign punishment taking into account mitigating factors such as those that were before the learned Magistrate.
The comments made by the appellant were inflammatory and stupid. However, he was heavily intoxicated at the time and the comments did not accord with his personal circumstances, including his criminal history. The numerous mitigating factors including the appellant's age, work history and absence of criminal history with respect to offences of violence are such that I am of the view that a sentence of actual imprisonment such as that imposed by the learned Magistrate was manifestly excessive.
On hearing an appeal of this type, section 225 of the Justices Act provides that I may confirm, set aside or vary the appeal order or make any other order in the matter I consider just.
I have been provided with a presentence custody certificate which is Exhibit 1 before me, which discloses that between 8 January 2009 and 12 January 2009 the appellant served four days one hour in custody. I am informed that this was solely as a consequence of the sentence which is the subject of this appeal.
The authorities to which I have been taken, and in particular Coutts, are suggestive of the proposition that despite the fact that because this was an offence of violence and section 9(2)(a) of the Penalties and Sentences Act does not apply, a non-custodial sentence is a more appropriate outcome. Although the offending for which I am now sentencing the appellant occurred in the context of a period of heavy drinking and after a scuffle on the streets of Mackay, I am of the view that there are certain aspects to this offending which make a sentence of probation the most desirable outcome.
It is important that the appellant modifies his behaviour and the attitudes which underpin it if he is going to reach his full potential as a useful member of the community. It is for this reason that I am of the view that probation is the most appropriate sentencing course.
I take it, Ms Hartigan, that the appellant is happy to consent to a probation order.
MS HARTIGAN: Yes, your Honour.
HIS HONOUR: All right. Just bear with me.
MS HARTIGAN: My instructions are that he has been going well on his probation order that was in fact imposed by the learned Magistrate for the other offences also, your Honour.
HIS HONOUR: All right. The appropriate duration of probation order in the circumstances would appear to be 18 months. The requirements of a probation order are as follows:-
Mr Taylor, stand up.
You must not commit another offence during the period of the order which will be 18 months.
You must report to an authorised Corrective Services officer in Mackay within two business days of today.
You must report to and receive visits from an authorised Corrective Services officer as directed by the officer.
You must take part in counselling and satisfactorily attend other programmes as directed by the Court or an authorised Corrective Services officer during the period of the order.
You must notify an authorised Corrective Services officer of every change in your place of residence or employment within two business days after the change happens.
You must not leave or stay out of Queensland without the permission of an authorised Corrective Services officer.
You must comply with every reasonable direction of an authorised Corrective Services officer and you must submit to counselling and other programmes directed by your authorised Community Corrections officer in respect of alcohol and anger management.
I need to tell you that the Penalties and Sentences Act, section 95 provides that this order may be amended or revoked on application by you or an authorised Corrective Services officer or the Director of Public Prosecutions. Do you consent to this order on those terms?
DEFENDANT: Yes, your Honour.
HIS HONOUR: All right. The learned Magistrate also was of the view that a conviction should be recorded, as noted above, with respect to the other penalties which arose out of the same incident. It has not been demonstrated to me that it is inappropriate to record a conviction in respect of this offence and therefore a conviction is also recorded.