DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was convicted of assault occasioning bodily harm whilst armed on 13 November 2012 and sentenced on 03 September 2013 to 9 months imprisonment with a parole release date of 03 October 2013. A compensation order of $2,000 was made and referred to the State Penalties Enforcement Registry (“SPER”).

The Appeal

2. [2]
   The appeal is against sentence, pursuant to s 222 of the Justices Act 1886, on the ground that the term of actual imprisonment of one month is manifestly excessive; and further, that the compensation order is oppressive in all the circumstances and manifestly excessive. The head sentence of 9 months imprisonment and the compensation order per se are not challenged in the appeal. 

History

3. [3]
   The date of the offence was 27 November 2011. The appellant had pleaded not guilty and went to trial. An appeal against conviction was refused on 23 August 2013. He was released on bail on 06 September 2013. The appellant has served four days of the sentence. This appeal against sentence was heard on 28 February 2014. As at the date of hearing of this appeal, two years and three months had passed since the date of the offence.

Antecedents

4. [4]
   The appellant is aged 36 years. He is employed full time as a scaffolder. His income supports a partner and three children and he pays child support for two other children. He was supported by two character references. It was accepted by the learned Magistrate that he had only a minor criminal history, that he otherwise had good antecedents and that his conduct was entirely out of character.

The Critical Finding of Fact

5. [5]
   There was a degree of animosity between the complainant and the appellant arising from a complaint by the complainant, initially by telephone and then face to face, that the appellant had supplied him with a drug (an ecstasy tablet) that was not what it was described to be. The learned Magistrate found that the appellant had then struck the complainant a single blow to the head with a baseball bat.

6. [6]
   The complainant was struck above the right eye. He suffered a wound that required 7 stitches in two levels of the skin.

7. [7]
   The appellant denied using a baseball bat. The learned Magistrate found that he had done so and convicted him of the offence. That finding was not disturbed on the appeal against conviction.

The Magistrate’s sentencing remarks

8. [8]
   His Honour distinguished comparative sentences to which he was referred. He considered that a sentence of imprisonment was warranted, the complainant having been “…assaulted in a violent manner being hit to the head by a baseball bat”. His Honour considered the fact that the complainant was involved in “unlawful behaviour” – a reference to the drug transaction – was a matter to be considered on sentence.

9. [9]
   His Honour concluded his sentencing remarks in the following terms:

”…I originally had in mind a term of imprisonment between nine and 12 months and to serve in the range of four months.  But now after hearing submissions by Ms McKinnon, I do consider nine months is the appropriate penalty but due to the violent nature, some time in actual custody should be served in my view, as well as a compensation order. So I’ll set a parole date in one month’s time on the 3^rd of October 2013. So the overall penalty: nine months imprisonment, to serve one month. A parole date is set at the 3^rd October 2013.  There’s a compensation order which I referred to a while ago in the amount of $2,000 and the conviction is recorded.”

10. [10]
    Hence the learned Magistrate considered that the circumstances of the offending were such as to warrant a term of actual imprisonment.

Submissions on the appeal

11. [11]
    Ms McKinnon submitted that the circumstances of the offence and the appellant’s antecedents did not warrant actual imprisonment; and that if actual imprisonment was required to be served the appellant would lose his job and his family would thereby suffer hardship because of the loss or diminution of financial support; and that the compensation order would not be paid. Hence she submitted that there was no utility in the making of an order of one month actual imprisonment.

12. [12]
    Ms Goldie submitted that the imposition of both an actual term of imprisonment and the making of a compensation order did not result in a manifestly excessive sentence.

Principles applicable to appeals against sentence.

13. [13]
    The relevant principles on appeals against sentence are those established in the long standing authorities of House v The King (1936) 55 CLR 499, at 504-505; and Hughes v Hopwood (1950) QWN 21.

14. [14]
    A sentence is excessive only if it is “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness: (see R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5A Crim R 230; Lowe v The Queen (1984) 154 CLR 606; R v McIntosh [1923] St. R. Qd. 278;

Discussion: The utility of short terms of actual imprisonment

15. [15]
    The compensation order was referred to SPER and could, in the circumstance that the appellant was not employed, by paid by instalments upon an agreement made with SPER. In so far as “hardship” is concerned, the circumstances must be “exceptional” in the sense referred to in Boyle v The Queen (1987) 34 A CrimR 202.

16. [16]
    However, I do not consider that either of those considerations are such as have amounted to error on the part of the learned Magistrate.

17. [17]
    His Honour appears to have favoured fixing a parole release date rather than partly suspending the term of imprisonment. I infer that he did so in order to provide rehabilitation for the appellant in the period of eight months parole that would have followed the one month term of actual imprisonment.

18. [18]
    The critical issue on the appeal is whether the learned Magistrate should have fixed an immediate parole release date and not required a term of actual imprisonment to be served.

19. [19]
    There are a number of decisions of the Court of Appeal that have recognised that short periods of imprisonment are undesirable: R v C [1996] QCA 234; R v Hamilton [2000] QCA 286; R v Daw [2006] QCA 386; R v Wharley [2007] QCA 295; R v Riley [2007] QCA 391; R v Hilton [2009] QCA 12; R v Yanner & Yanner; ex parte AG (1999) 109A CrimR 109; [1999] QCA 515.

20. [20]
    Some context should be given to those cases: firstly, they were determined at a time when the principle that imprisonment is to be imposed only as a last resort and that a sentence that allows the offender to stay in the community is preferable (s 9(2)(a) Penalties and Sentences Act 1992) was in force; and secondly, a number of them involved first offenders or youthful first offenders.

21. [21]
    The learned Magistrate did not refer to the one month of actual imprisonment as being something that “would set an example” (as at least one of those authorities concluded) but simply took the view that the manner of commission of the offence was such as warranted a short period of actual imprisonment. Of course, his Honour had initially considered a longer head sentence and a longer term of actual imprisonment. However, he was persuaded by submissions to adopt a different course. In so doing, it seems to me, he simply reduced the head sentence and the non-parole period.

22. [22]
    The fixing of a parole release date per se, seems to me to indicate that his Honour had in mind the potential for a period of rehabilitation to be completed by the appellant through the supervision of the parole authorities.

23. [23]
    It is that circumstance that in my view creates some tension between ordering one month’s imprisonment and giving recognition to rehabilitation.

24. [24]
    In my view the learned Magistrate was in error in imposing a term of one month’s actual imprisonment. It seems to me that that whilst that may have served a punitive purpose it did not sit comfortably with his recognition of a number of other factors: that the offence was out of character; that the complainant’s engagement in an unlawful activity was a matter for consideration on sentence; the recognition of the good antecedents of the appellant, despite what he characterised as being a “minor” criminal history; his reduction of the head sentence to reflect the force of Ms McKinnon’s submissions; and his reference to rehabilitation.

25. [25]
    There is a further matter that is relevance and that is the period of time that has passed since the commission of the offence. As I have indicated, the offence was committed on 27 November 2011. The appellant was not sentenced - because the appeal against conviction was made and heard by another judge of this Court - until 03 September 2013, almost two years later. The appeal was heard on 28 February this year. Hence a period of two years and three months has passed since the date of the offence. The appellant has not committed any other offence in that period, he had returned to and maintains his full time employment, he is meeting his obligations to support his family including children from a previous relationship and he appears to be contributing to the community in those capacities, responsibly.

26. [26]
    Whilst the learned Magistrate may not have anticipated that the conclusion of appeals in this matter would not occur for some two years and four months after the date of the offence, nevertheless that delay when taken into consideration with the other factors that I have mentioned, is a significant factor on this appeal.

27. [27]
    The utility of ordering a term of one month’s actual imprisonment in all of the circumstances, putting aside the issue of delay to which I have referred, is in my view an appealable error made by his Honour. It would have been open and appropriate to have fixed a parole release date immediately and that would have recognised the factors taken into account by his Honour and achieved the purpose of providing for rehabilitation of the appellant.

28. [28]
    Whilst this is a marginal case in respect of error, given the force of the authorities that I have cited at paragraphs [13] and [14], it seems to me that there was in the circumstances of this case no utility in making a term of one month imprisonment to be served.

29. [29]
    I have also been persuaded that the subsequent delay and the passage of time during which the appellant appears to have rehabilitated himself in any event; and the fact that the appellant has served four days in custody, prior to release on bail pending appeal, is such as to further support the orders that I am going to make.

Conclusion

30. [30]
    In my view there has been an appealable error by the learned Magistrate. The appeal is allowed. The order for a term of one month actual imprisonment should be vacated together with the parole release date that was fixed by his Honour. In lieu thereof an immediate parole release date of 03 September 2013 is fixed. The balance of the sentence orders made by his Honour remain extant.

 Orders

1. Appeal allowed

2. The sentence of one month actual imprisonment and the parole release date of 03 October 2013 are vacated and in lieu thereof an immediate parole release date of 06 September 2013 is substituted.

3. The balance of the sentence remains extant