Wilson v Sullivan
[2012] QDC 177
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Wilson v Sullivan[2012] QDC 177
- Add to List
Wilson v Sullivan[2012] QDC 177
Wilson v Sullivan[2012] QDC 177
QDC [2012] 177
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE RAFTER SC
No 88 of 2011
COREY JOHN WILSON | Appellant |
and | |
CONSTABLE M SULLIVAN | Respondent |
TOOWOOMBA
DATE 19/03/2012
JUDGMENT
HIS HONOUR: On 14 November 2011, the appellant pleaded guilty in the Magistrates Court at Toowoomba to assault occasioning bodily harm. He was sentenced to three months imprisonment with a parole release date after he had served one month, namely, on the 14th of December 2011. He has appealed against the sentence on the ground that it is manifestly excessive.
The offence was serious. It occurred in the early hours of 18 September 2011 on a city street in Toowoomba. The appellant was intoxicated and behaved aggressively and king-hit the complainant. It is true that the complainant fortunately did not suffer any serious injuries. Nevertheless, the offence was indeed serious and that is particularly so in light of the appellant's prior criminal history.
The appellant had been sentenced in the Childrens Court of Queensland at Toowoomba on 25 November 2009 for grievous bodily harm and two offences of assault occasioning bodily harm. For the grievous bodily harm offence he was sentenced to 18 months imprisonment, to be released after serving 50 percent of that period of detention. He was also placed on two and a half years probation. He was therefore on probation at the time that he committed this offence of assault occasioning bodily harm.
Despite the seriousness of the offence, there are mitigating factors. The appellant is 19 years old. He was aged 18 at the time of the offence and there was a significant period during which he did not reoffend following the imposition of sentence in the Toowoomba Childrens Court of Queensland on 25 November 2009. Moreover, at the time of sentencing, he was working in a bakery and he was living with his parents and staying away from company that might lead him astray. And it was said that he was making efforts to rehabilitate himself.
Mr Davies, for the appellant, argued that in all of the circumstances the appellant should be resentenced to three months imprisonment with immediate parole or an intensive correction order. Mr Blakeney, for the respondent, submitted that the sentence was not manifestly excessive and the appellant should be required to serve the one month imposed by the Magistrate. Mr Blakeney helpfully referred to the decision of the Court of Appeal in R v. Kite [1999] QCA 162 which he submitted demonstrated that the sentence was certainly not manifestly excessive.
The appellant's history and the fact that this offence of violence occurred on the streets of Toowoomba certainly exposed the appellant to an actual term of imprisonment. However, his youth and the other mitigating factors meant that a sentence involving no actual custody was also open.
The nature of an appeal under the Justices Act is a re-hearing on the materials before the Magistrates Court. That is provided for in section 223 of the Justices Act 1886. The appellant was released on bail following the imposition of sentence, that was back on the 14th of November 2011. There are many judgments of the Court of Appeal that illustrate that a short sentence of imprisonment, particularly for a young offender, can be counterproductive, although of course the appellant is not a youthful first-offender because of the serious previous convictions arising from his appearance in the Childrens Court of Queensland on the 25th of November 2009.
In all of the circumstances, I'm of the view that the appropriate sentence is three months imprisonment, but I would vary the sentence by fixing today's date as the appellant's parole release date.
Therefore, the orders will be as follows:
- appeal allowed;
- confirm the sentence of three months imprisonment;
- vary the sentence imposed by the Magistrates Court at Toowoomba on 14 November 2011 by fixing 19 March 2012 as the appellant's parole release date. That means that the appellant is immediately under the supervision of the Chief Executive until the end of the sentence of three months imprisonment. He will, during that period, be required to carry out all lawful instructions of the Chief Executive. He may be required to give test examples of blood, breath, hair, saliva or urine. He'll have to report and receive visits as directed by the Chief Executive and notify the Chief Executive of any change of address or employment within 48 hours of any such change. Also, most importantly, you must not commit an offence during the parole period. The appellant will have to report to a Probation and Parole office by 5 p.m. today to obtain a copy of the Court-ordered parole order.
Anything else?
MR DAVIES: No, thank you, your Honour.