Queensland Police Service v Owens
[2012] QDC 392
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- Queensland Police Service v Owens[2012] QDC 392
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Queensland Police Service v Owens[2012] QDC 392
Queensland Police Service v Owens[2012] QDC 392
[2012] QDC 392
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DEARDEN
No 22 of 2012
QUEENSLAND POLICE SERVICE | Respondent/Plaintiff |
and | |
TREVOR JOHN OWENS | Applicant/Defendant |
MOUNT ISA
DATE 03/12/2012
JUDGMENT
HIS HONOUR: This is the decision in the matter of Trevor John Owens and the Queensland Police Service.
INTRODUCTION
The appellant, Trevor John Owens, appeals against the sentence of nine months imprisonment, with a parole release date fixed at two months from that date, imposed in the Normanton Magistrates Court on 28 August 2012, with respect to one charge of assault occasioning bodily harm.
The appellant served 28 days imprisonment, between 28 August 2012 and 25 September 2012, when he was granted appeal bail.
BACKGROUND
The appellant entered a plea of guilty to the assault occasioning bodily harm charge, probably on 5 December 2011 (it's not entirely clear from the file, because the entry was made on another Bench charge sheet which has subsequently become separated from the charge sheet relevant to this appeal), but the sentence did not in fact proceed until other matters listed for trial on 28 August 2012 were dismissed at the conclusion of a "no case" submission.
The submissions at the sentence on 28 August 2012 indicate that at about 12 midday on 30 September 2011 (the date of the relevant offence), the appellant entered the bedroom of the complainant, where the complainant was talking with three other people, while sitting on the edge of the bed. The appellant said to the complainant, "You, you bastard", and punched the complainant in the left eye with his right fist. This caused immediate pain to the complainant. The defendant then punched the complainant on the right-hand side of his ribcage, and both men fell to the ground.
The defendant then received two punches from the complainant. The defendant continued to argue with the complainant, then left in the end. The complainant suffered a bruised right eye and pain and bruising to his right rib area (sentencing submissions T.1-38).
On the sentence, Mr Castor (who appeared on behalf of the appellant at the sentence, and also on this appeal), submitted that he was either 54 or 56 at sentence, although according to his criminal history he was born on 19 September 1957, and so would have been 54 at the date of the offence, and 54 at sentence.
The appellant was a single man, and the complainant was (on the appellant's submissions) in a domestically violent relationship with the appellant's sister-in-law. It appears that the appellant was unhappy about this, and that the domestic violence seemed to be happening with impunity. The appellant accepted, in the submissions made on his behalf at sentence, that it was wrong for him to have acted as he did, and offered compensation.
The appellant was punched twice in the altercation (after he punched the complainant) and received four stitches as a result. The appellant was also banned from licensed premises in Normanton, where he lives, for a period of 12 months pursuant to the Normanton Liquor Accord NLA (sentencing submissions T.1-41 - 1-45).
The appellant had a criminal history which included:
"(a) seven prior convictions for assault occasioning bodily harm;
- (b)three prior convictions for aggravated assault on a female;
- (c)eight prior convictions for breaching a domestic violence order; and
- (d)three prior convictions for assault/obstruct police.
The appellant also has prior convictions for behaving in a disorderly manner, using threatening words, committing public nuisance, and a breach of duty of care [in] failing to provide for an animal." (Outline of submissions on behalf of the respondent, paras 4.2 and 4.3).
However, with the exception of a breach of a domestic violence order on 13 December 1995, the appellant had not previously served a term of imprisonment, and the most recent assault occasioning bodily harm had arisen as a result of an incident on 5 November 2004, for which the appellant was sentenced to 12 months probation on 13 December 2004. In short, although it was a most unattractive criminal history, much of it was significantly dated, with most penalties involving fines or, in at least one case, a community based order.
THE LAW
I refer to and rely on my exposition as to the relevant law in respect of Justices Act s. 222 appeals as set out in Moore v QPS [2012] QDC 133 at paragraphs 2-4.
GROUNDS OF APPEAL
Mr Castor, on behalf of the appellant, argues:
- (1)that the learned magistrate erred in failing to provide any weight to the extra-curial punishment inflicted upon the appellant;
- (2)that the learned magistrate erred in attributing excessive weight to the criminal history of the appellant;
- (3)that the learned magistrate erred in providing (sic) insufficient weight to the plea of guilty of the appellant;
- (4)that as a result, the term of imprisonment imposed by the learned magistrate was manifestly excessive. (Outline of submissions on behalf of the respondent, para 1.1).
Ms Goldie, who appears on behalf of the respondent, argues that the seriousness of the offence, committed as it was in the complainant's home, with punches administered without warning, causing injuries, in the context of the appellant's criminal history, justified the actual sentence imposed.
DISCUSSION
It is clear, from the exchange during submissions between Mr Castor and the learned magistrate (the sentencing submissions T.1-42), and upon examination of the sentencing remarks in total, that the learned magistrate placed no weight on the extra-curial punishment, nor on the Normanton Liquor ban imposed on the appellant. With due respect to Mr Castor's submission, the liquor ban, although clearly very inconvenient, was of significantly less importance on a sentence for serious criminal offence than the extra-curial punishment, which no doubt reminded the appellant keenly of the consequences of taking the law into his own hands (R v Davidson; ex parte Attorney-General [2009] QCA 283 per Holmes J A at pp 4-5).
The learned magistrate, with respect, appears to have misunderstood the decision in R v. Hannigan [2009] QCA 40, which, as I read it, is not authority for the proposition that extra-curial punishment can never be taken into account in sentencing an offender who has suffered such extra-curial punishment immediately after committing an offence. In my view, that failure to place any weight at all on the extra-curial punishment, and in turn, placing too much weight on the appellant's criminal history, has led to a clear sentencing error by the learned magistrate in respect of this matter.
In my view, the appropriate sentence which reflects proportionate punishment for the serious aspects of the appellant's conduct (i.e. entering the complainant's bedroom and punching him twice without warning), but is then balanced, in particular, against the extra-curial punishment (two punches requiring four stitches), in the light of a concerning but relatively aged criminal history and the inconvenience of a liquor ban, should have resulted in a prison sentence significantly less than that imposed, coupled with either an immediate suspension or parole release date. The defendant has, of course, already served a period of 28 days.
In all the circumstances, the order I intend to substitute as the sentence will be a sentence of six months imprisonment, suspended after the time already served (i.e. 28 days), with an operational period of 12 months effective from the date of sentence by the learned sentencing magistrate at the Normanton Magistrates Court.
ORDERS
- (1)Appeal granted.
- (2)Set aside the sentence of nine months imprisonment in respect of the charge of assault occasioning bodily harm and substitute a sentence of six months imprisonment.
- (3)Order that sentence be suspended after serving 28 days imprisonment, with an operational period of one year, effective 28 August 2012.
- (4)Declare the period of 28 days from 28 August 2012 to 25 September 2012 time served in respect of the substituted sentence.