Quatermass v The Commissioner of Police
[2015] QDC 169
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Quatermass v The Commissioner of Police[2015] QDC 169
Quatermass v The Commissioner of Police[2015] QDC 169
[2015] QDC 169
DISTRICT COURT OF QUEENSLAND
CRIMINAL JURISDICTION
JUDGE REID
No 1023 of 2015
GUS RANKIN QUATERMASS Appellant
v.
THE COMMISSIONER OF POLICE Respondent
BRISBANE
3.19 PM, FRIDAY, 20 MARCH 2015
JUDGMENT
HIS HONOUR: The appellant appeals against the sentence of 12 months imprisonment to be suspended after serving two months with an operational period of 12 months, imposed in the Magistrates Court upon his conviction for the offence of assault occasioning bodily harm. The sole ground of appeal is that the sentence was excessive. The appeal is under section 222(2)(c) of the Justices Act. What is required to be shown is “some legal, factual or discretionary error” to adopt the words of Wilson J in Shambayati v Commissioner of Police [2013] QCA 57.
In this case the appellant points to no identifiable legal or factual error, but says the sentence is such that utilising the well-known approach articulated in House v The King (1935) 55 CLR 499 I will conclude the learned magistrate must have acted on a wrong principle.
It must be recognised that such an approach does not allow the decision below to be overturned because an appellate court considers that if they had been in the position of the primary judge they would have taken a different course. Here it is suggested that the sentence imposed was so unjust or unreasonable that I should infer the magistrate has in some way failed to properly exercise the discretion reposed in him.
Has such a substantial error occurred?
The assault occurred on the 22nd of June 2014. The appellant was 19 years of age, being born on the 21st of October 1994. He is now and was at sentence 20. He pleaded guilty to the offence and was dealt with on the 11th of March 2015. It was an early plea, as the magistrate recognised.
The appellant and the complainant were unknown to one another. They were both on the dance floor of a night club. The appellant approached the complainant from behind, took hold of his jacket, turned him around, and then punched the left-hand side of the complainant’s face. The complainant lost consciousness. He fell to the floor. He was then punched by the appellant at least once more in the face whilst he was on the ground unconscious. The appellant was restrained by others and ejected from the night club. His ID was photographed by security before he was released.
The complainant suffered significant injuries. CT scans showed he had:
- left-sided comminuted blowout orbital floor fracture;
- depressed comminuted fracture of the lateral wall of the left maxillary sinus;
- comminuted fracture of the left orbital surface and frontal process of the zygomatic bone;
- depressed fracture through the nasal surface of the left maxillary sinus.
Subsequently he underwent successful corrective surgery. He also suffered some neck pain consequent upon the trauma to his jaw. The injuries, however, did not constitute grievous bodily harm. The schedule of agreed facts indicates that his injuries would be expected to have healed on their own without medical intervention. I surmise that the significant fractures I have referred to must have been largely un-displaced or only minimally displaced for such a conclusion to have been reached.
When contacted by police on the 25th of June 2014, the appellant said by way of explanation that he was very drunk. He gave a version to police of someone constantly bumping against him and giving him a “funny look.” He said there was then a “heated chat” and the complainant then pushed him. He said he pushed the complainant back then punched him in the head once or twice.
This version, as the magistrate made clear, was inconsistent in a number of respects with the agreed schedule of facts. He, correctly in my view, described the differences as significant.
The appellant’s solicitor indicated after clarifying matters with the appellant during the sentence, that he accepted that all that occurred prior to the appellant first striking the complainant was that there was “bumping on the dance floor” and that the applicant then struck the complainant, as stated in the agreed facts, without any prior argument or pushing.
The learned magistrate described the appellant’s conduct as “a serious example of gratuitous violence” and said the attack was unprovoked, cowardly and vicious, causing serious injuries. He specifically rejected the view that the complainant had pushed the appellant as I’ve described.
He referred to the appellant’s prior criminal history. He said that whilst it was not a serious history it was “some concern.”
He referred in that regard to a prior offence of public nuisance committed on the 23rd of August 2011 but dealt with only on the 11th of September 2013. That offence involved, he was told, the appellant having taken part in a fight in the Fortitude Valley safe precinct area with a significant number of others. He was told by the police prosecutor that CCTV footage revealed the defendant was “one of the main aggressors in that disturbance.”
Such an assertion was not countermanded. The magistrate’s concern stemmed from the fact that the incident, like the subject incident, involved alcohol-fuelled violence in a public place. I note on that occasion, upon his conviction the appellant was placed on a nine month banning order up to the 11th of June 2014. This offence occurred on the 22nd of June, only 11 days after the ban ended. To me that’s an issue which justifies the magistrate’s reference to the concerning history of the appellant, albeit one that was not serious.
His Honour took into account the appellant’s payment of $4000 or thereabouts to the complainant on account of medical and related expenses. His Honour referred to the plea as what he described as “the earliest possible time” and said that showed the appellant’s remorse and cooperation. He said the victim impact statement showed the complainant suffered dreadfully and continues to suffer considerably.
His Honour referred to the applicant being a third year electrical apprentice. He noted his completion of an anger management course and the personal references which spoke highly of the appellant and of his significant family support.
His Honour noted that on the night in question the appellant had, unusually, drunk both beer and a quantity of rum. He said he took into account that the appellant was not usually a big drinker, as his solicitor submitted. He also noted the appellant’s intoxication was an explanation for his conduct but not an excuse.
His Honour said, however, that this was a cowardly attack without any justification. He said the attack did not stop at one punch but that he again punched the complainant when he was unconscious on the floor.
It is not suggested, as I’ve earlier said, that his Honour failed to take into account any relevant matter or that he took into account any extraneous matters. Rather, it’s said the penalty imposed was excessive, having regard to the circumstances I’ve outlined, comparable cases and in particular the need for rehabilitation for young offenders.
Before the magistrate the prosecution relied on two cases said to be comparable, namely R v Lude; R v Love [2007] QCA 319 and R v Ball [2012] QCA 51. Each involved the plea to offences of assault occasioning bodily harm, but the first included the aggravating circumstance of being in company.
In R v Ball (supra) the age of the appellant was not known. There’d been an earlier dispute between the complainant and the appellant at a McDonald’s restaurant. The complainant had been behaving objectionably and was himself intoxicated, as was the appellant. As a security officer led the complainant outside, the defendant approached and punched him in the face. He fell, striking his head, which rendered him unconscious.
The complainant had a CT scan, showing a subdural haematoma. He had an emergency craniotomy and was discharged after three days. He was re-admitted with headaches a couple of days later and remained there for a further six days. The appellant was larger than the complainant, as it seems was the appellant in this case, as the learned magistrate observed. The Court of Appeal in that case described the interaction between the appellant and the complainant as “argy-bargy” but said that after security intervened the behaviour of the appellant was properly described by the sentencing judge as gratuitous violence.
The court in that case especially noted the offence was not an offence attended by circumstances of aggravation and that there was a single punch. The court, in circumstances where the appellant’s counsel conceded that an 18 month head sentence was appropriate and argued that he ought to be allowed to remain in the community, said the three months of actual custody imposed was “clearly within the sentencing discretion.”
In R v Lude; R v Love (supra), the sentencing judge imposed sentences of 18 months with parole release after six months on each appellant. These were reduced on appeal to nine months with parole release date on the day of the appeal, in Lude’s case after serving just under two months in custody, and parole release after three months in the case of Love.
The schedule of facts in that case indicated that both were intoxicated and behaving poorly. Love remonstrated with a third party then approached the complainant’s taxi. When the complainant, a taxi driver, got out to remonstrate with him, Love punched him a number of times in the head and face. Lude joined in, assaulting and kicking the complainant. Other taxi drivers intervened and the attack ended. When interviewed Love admitted his conduct to police. Lude said he had little memory due to his intoxication.
The complainant suffered, in that case, lacerations to his nose, blackened eyes and a deviated septum. He was tender and bruised. A dental plate was broken. He had several days off work but did apparently complete the night shift in his taxi on the night of the assault.
Love was 20 at the time of the offence and had a minor criminal history. He had a moderately good employment history. Lude was 21 at the time with no prior criminal history.
Before the Court of Appeal, as in the matter before me, counsel for the appellants submitted insufficient weight was given to the appellant’s prospects of rehabilitation, particularly given their youth. The appellants in that case relied on a number of features not present before me, however, namely the complainant was not knocked to the ground and his injuries were not as severe as to prevent him from completing his work that night. There were a number of other mitigating circumstances also.
In the case the court referred to a number of other cases, R v Law [2006] QCA 560; R v O'Grady ex parte Attorney-General Queensland [2003] QCA 137; R v Middleton and Johns [2006] QCA 92; and R v Abednego [2004] QCA 377. I’ve taken into account what the court said in Lude and Love about those decisions. In R v Middleton and Johns, Jerrard JA, in a passage cited with approval by the court in Lude and Love, said:
This court will uphold sentences resulting in actual custody for first offenders with no prior convictions who plead guilty to assault occasioning bodily harm, where there are aggravating circumstances. Those can include the motive for the assault, its severity, or the circumstances of being armed and in company. While actual imprisonment is not mandated, it will ordinarily be within the proper exercise of the sentencing discretion.
I might say that in this case the motive for the assault was mindless, gratuitous violence. The injuries were significant and involved the delivery of at least two separate blows, the second after the complainant had fallen unconscious to the floor. In Lude and Love, Holmes JA, with whom Keene JA, as he then was, and Lyons J agreed, said at paragraph 17:
In the present case, while actual imprisonment could not be said to be outside the range of a proper exercise of sentencing discretion, the sentence of 18 months imprisonment was, by reference to those authorities, excessive, having regard to the facts that no weapon was used, there was no premeditated aspect to the assault, it was not committed in connection with any criminal purpose and it did not result in any serious injury. The imposition of six months actual custody did not properly recognise the importance of rehabilitation for young offenders such as these, without significant previous convictions. Nor were the other strong mitigating features by way of the applicants’ co-operation with police and their early pleas of guilty adequately reflected.
Rehabilitation, deterrence and denunciation must all be balanced in a re-exercise of the sentencing discretion. One must not lose sight of the fact that this was an entirely unprovoked attack causing injury to an ordinary, inoffensive person in a public place.
Of course in that case the court, as I’ve previously said, having made those observations, nevertheless, sentenced the 20 and 21 year old appellants to periods of actual imprisonment. I note also that while R v Lude; R v Love (supra) involved the aggravating circumstance of being in company, in this case the injuries are significantly more serious. Furthermore, the attack involved, as I’ve said, striking the complainant when he was already unconscious and on the floor. The appellant’s statement to police was also inaccurate and self-serving in a number of material respects, albeit that he’s entered a plea accepting the factual circumstances that I’ve outlined at the earliest subsequent opportunity, as the magistrate found.
In my view, that case and that of R v Ball (supra) that I’ve already referred to strongly support the view that the sentence in this case was not excessive. In particular, the statement I’ve earlier set out, that “actual imprisonment could not be said to be outside the range of a proper exercise of sentencing discretion” and the fact that the Court of Appeal imposed sentences of actual imprisonment make the appellant’s contention to the contrary in the case before me untenable.
Counsel for the appellant relied on the appellant’s age and personal circumstances, including the possibility that his apprenticeship might be significantly disrupted and the known possibility that a short period of actual imprisonment might adversely affect his rehabilitation, to support the view that the requirement that the appellant go to jail for two months means I should infer there was discretionary error.
There is no doubt sending a young man to prison for the first time is a significant matter. The magistrate, however, recognised that fact and his decision to do so was made only after carefully balancing all factors including the importance of rehabilitation, but also the need to protect the community and deter the appellant and others from senseless, gratuitous, alcohol-fuelled violence. I conclude in the circumstances that his decision to do so was within the sound exercise of the sentencing discretion.
The appeal is dismissed with no order as to costs.
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