Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2016
  4. Ross v The Commissioner of Police - [2016] QDC 205

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Ross v The Commissioner of Police[2016] QDC 205

Ross v The Commissioner of Police[2016] QDC 205

DISTRICT COURT OF QUEENSLAND

CITATION:

Ross v The Commissioner of Police [2016] QDC 205

PARTIES:

BENJAMIN LUKE ROSS

(appellant)

and

THE COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

19/2016

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Beenleigh

DELIVERED ON:

12 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2016

JUDGE:

Smith DCJA

ORDERS:

  1. The appeal is allowed.
  1. The sentence is varied so that the appellant is released on parole immediately.
  1. The sentences are otherwise confirmed.
  1. The appellant is released on parole pursuant to s200(1) of the Corrective Services Act 2006 (Q).
  1. The appellant is required to report to the Probation and Parole Office as required under the Act between 9.00am and 5.00pm today or on the next business day.
  1. If the appellant fails to do so, he will be unlawfully at large.
  1. The appellant’s legal representatives have undertaken to inform him of his obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Q).
  1. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Q) it is declared that the appellant has spent eight days in presentence custody. I declare this time to be imprisonment already served. The dates between which the appellant was held in presentence custody are 14 June 2016 and 22 June 2016.
  1. Pursuant to s 35 of the Penalties and Sentences Act I order the defendant pay compensation in the sum of $3,000.00 to the Registrar of the District Court at Beenleigh within seven days for transmission to Tony Robert Lumb of an address to be provided to the registrar by the Director of Public Prosecutions. In default of payment within that time I order the appellant be imprisoned for a period of six weeks. If it is not paid within that time I direct the appellant appear before the District Court at Beenleigh at 10am on 22 August 2016 to show cause why the default imprisonment should not be enforced.

CATCHWORDS:

CRIMINAL LAW JUDGMENT AND PUNISHMENT – APPEAL – assault occasioning bodily harm in company – whether magistrate erred in her decision – whether sentence manifestly excessive – where leave was sought to adduce new evidence and whether it should be admitted.

Justices Act 1886 (Q) ss 222, 223, 225

Penalties and Sentences Act 1992 (Q) ss 13, 35, 159A, 160G

AB v R (1999) 198 CLR 111

Green v R (2011) 244 CLR 462

La Carta v Commissioner of Police [2016] QDC 68

R v Allen [2005] QCA 73

R v Ball [2012] QCA 51

R v Bryan ex-parte Attorney-General [2003] QCA 18

R v Edwards [2012] QCA 117

R v Hilton [2009] QCA 12

R v Horne [2005] QCA 218

R v Lude; R v Love [2007] QCA 319

R v Middleton and Johns (2006) 165 A Crim R 1; [2006] QCA 92

R v Mules [2007] QCA 47

R v Nievandt [2000] QCA 224

R v Tapiolas [2008] QCA 118

R v Taylor and Napatali (1999) 106 A Crim R 578

R v Walsh, Sayer and Thompson [1998] QCA 217

R v Wilkins; ex parte Attorney General (Qld) [2008] QCA 272

Teelow v Commissioner of Police [2009] 2 Qd R 489

Van Hese v Constable Brown [2015] QDC 92

COUNSEL:

Mr D. Funch for the appellant

Mr P. Moisuc for the respondent

SOLICITORS:

Karsas Tai Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    This is an appeal by the appellant against the sentence imposed in the Beenleigh Magistrates Court on 20 June 2016 whereby he was sentenced to 15 months’ imprisonment with a parole release date of 14 August 2016, i.e. after he had served two months. The appellant was granted bail pending the outcome of the appeal on 22 June 2016.
  1. [2]
    The appellant pleaded guilty to one count of assault occasioning bodily harm in company which occurred on 13 December 2015. He also pleaded guilty to unlicensed driving and was fined for this. He does not challenge that sentence.

Principles

  1. [3]
    The appeal is pursuant to s 222 of the Justices Act 1886 (Q) (“JA”).
  1. [4]
    Section 222(2)(c) of the JA provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate.
  1. [5]
    Section 223(1) of the JA provides that the appeal is to be by way of rehearing on the evidence given in the proceedings before the Justices.
  1. [6]
    In Teelow v Commissioner of Police[1] Muir JA held at [4]:

“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the result of some legal, factual or discretionary error…”

Proceedings below

  1. [7]
    The offence occurred on 13 December 2015 at Coolangatta.
  1. [8]
    With respect to the assault charge, the appellant and his co-offender, Mr Jorgenson, had been drinking alcohol at the Mantra Hotel, Tweed Heads. At about 3.00am they entered a 7-Eleven Store in Coolangatta in company with the appellant’s girlfriend, Bridget Anthony. At that stage the appellant and his friend purchased items but MsAnthony spoke to a Ms Davies who was in the store and who was also a friend of the complainant. Ms Davies and Ms Anthony became involved in an argument. The appellant intervened to ensure they did not become involved in any physical altercation. Ms Anthony moved around the appellant whilst he was distracted, grabbed Ms Davies’ hair and pulled her to the ground. The appellant intervened, grabbing Anthony and separating her from Ms Davies.
  1. [9]
    At this stage the complainant who had also been purchasing items in the store exited the store. The appellant was verbally abused by the complainant as to the behaviour of Ms Anthony. Ms Anthony proceeded to push the complainant in the chest a number of times and verbally abused him. Ultimately the complainant after a number of these pushes pushed MsAnthony in the chest. At this point the co-defendant Mr Jorgenson punched the complainant to the face area. The complainant fell backwards into the door. The co-accused then attempted to punch the complainant with more force but he missed and fell to the ground. At this stage the appellant then grabbed the complainant and struck him several times to the face with a closed fist. He then grabbed the complainant’s shoulders and kneed him in the face. The complainant staggered, lost his balance but maintained his footing. At this stage the co-defendant, Jorgenson struck him several times in the face. The appellant continued to assault. The blows caused the complainant considerable pain to the face and the head. Ultimately, the appellant used a knee to strike the complainant in the head which caused him to fall to the ground and then the appellant dropped himself onto the complainant’s head using his knee to strike his face and head.
  1. [10]
    CCTV footage[2]shows that considerable force was used. The complainant lost consciousness. It was then alleged that the appellant struck him to the right-side of the face and head on three occasions.
  1. [11]
    Both defendants left the scene and ran to the Mantra Hotel. The appellant changed his clothing, although I note the appellant had no shirt on in the footage. Police later attended and viewed footage. As a result Mr Jorgenson was located, arrested and taken to the Coolangatta Police station where he made admissions and was charged.
  1. [12]
    On 29 December 2015, the appellant attended the Coolangatta Police station and took part in a record of interview. He made admissions to the assault stating he had an argument with Ms Anthony and he was “pissed off” at her, also because the window of his vehicle had been damaged. He was shown footage of the offence and stated his behaviour was “outrageous and disgusting”. He admitted knowing the complainant was unconscious after assaulting him and admitted to not rendering any assistance.
  1. [13]
    The complainant was taken to the Tweed Hospital and was admitted for treatment. Scans were conducted. The injuries were:
  1. (a)
    Large lacerations above and below the right eye requiring seven stitches;
  1. (b)
    Black eye;
  1. (c)
    Swollen face; and
  1. (d)
    Lacerations to right ear, right mouth and right side of the head.
  1. [14]
    The scans did not detect any facial fractures. He suffered pain and discomfort (considerable) for several days requiring pain killers. He was an English tourist having gone back to England since.
  1. [15]
    There was no victim impact statement. The appellant’s criminal history was tendered. This revealed he was born on 18 October 1990 thus being 25 years of age at the time of the offence. He had convictions for public nuisance in September 2009 (no conviction recorded, $200.00 fine); public nuisance committed on 22 August 2010 (conviction recorded, $650.00 fine); public nuisance committed on 7 May 2015 (no conviction recorded, $500.00 fine); wilful damage committed on 8 June 2015 (conviction recorded, $300.00 fine).
  1. [16]
    With respect to the offence on 22 August 2010, this was at Hungry Jack’s on a Sunday morning in Surfers Paradise where he head-butted a customer. With respect to the offence of 7 May 2015, this was at 4.30am. He kicked towards a male and then punched the male in the head. The most recent offence, on 29 June 2015, involved the appellant at 6.45pm in a Council car park “going off”, swinging from a door and trying to pull a hand-dryer off a wall.
  1. [17]
    The appellant’s co-offender pleaded guilty in the Gladstone Magistrates Court on 21March 2016. He was sentenced to seven months’ imprisonment with an immediate parole release date with an order for compensation in the sum of $500.00. It was pointed out that the co-offender, Mr Jorgenson, had no criminal history and was four years younger.
  1. [18]
    The prosecutor then referred the magistrate to single instance decisions of a number of magistrates on the Gold Coast where prison terms had been imposed. No written documents supporting the assertions made were tendered because, apparently, they were not available.[3]

Defence submissions

  1. [19]
    The defence solicitor informed the magistrate that the appellant was 25 years of age. He grew up in the Logan area with two brothers. There was no stable father figure. His mother married seven times when he was being brought up and there was an unstable family home but despite this he went to year 12. He began working immediately as a concreter and did very well at this. He had spent two years working in Gladstone and a number of years in Rockhampton. He also had been in Victoria and New South Wales. He was employed as at the date of sentence. He started dating Ms Anthony but it was a very volatile relationship. Two weeks prior to the offence his mother informed him of a sister he did not know he had and he was told that his biological father had died. On the day in question his car had been broken into and he had been drinking heavily. It was submitted that there was no premeditation in this assault. What happened here was a situation between Ms Anthony and the complainant’s friend. Ms Davies had thrown a sausage roll at Ms Anthony – they had all been drinking. The appellant in fact was trying to break up the fight to start with and just wanted to go home. Ms Anthony though was very erratic. The complainant then started yelling accusations at Ms Anthony and the appellant said to the complainant “You know, you should keep your girlfriend under control, mate”. There were then some profanities. It was after this that Mr Jorgenson struck out at the complainant after there had been pushing and shoving between Ms Anthony and the complainant. The appellant did nothing to start with. It was submitted that the Court could consider an intensive correction order and probation. The appellant had been to see a psychologist three times and was hoping to get a report for the Court proceedings but the psychologist had fallen ill. He had started to address his issues.
  1. [20]
    A restraining order was obtained by him against Ms Anthony because she had destroyed his house and stole a lot of money from him.
  1. [21]
    Whilst it was accepted there was more violence by the appellant, the co-accused received seven months with immediate parole which meant there did not have to be actual custody in this case. The defence relied on the case of R v Cuff v Attorney-General.[4]Fortunately the injuries were not serious in this case. The appellant made admissions to the offence immediately and listed the matter for an early plea. This was important bearing in mind the complainant was overseas and he might not have returned to give evidence at a trial. It could not be proved conclusively who caused the injuries, whether Mr Jorgenson or the appellant. Good character references were tendered.[5]
  1. [22]
    Mr Benson in his reference stated that he had overseen the appellant’s employment since February 2016. He had seen the appellant make a dramatic change from when he first started. He thought the appellant was a decent member of the community.
  1. [23]
    Mr Tozer, a foreman from TMD Contractors said that the charge against the defendant was uncharacteristic and he believed the defendant regretted it. He stated the appellant was a young man with integrity and honesty and was extremely remorseful and had learnt from his mistake.
  1. [24]
    The magistrate remanded the appellant in custody pending the examination of the matter.

Further submissions

  1. [25]
    The matter came back before the Court on 20 June 2016. At that stage the prosecutor handed up two of the further cases he had referred to. The appellant’s solicitor also tendered a reference from the appellant’s current girlfriend and referred to a further comparable decision. The magistrate stated she had done some of her own research and referred to a case of La Carta v Commissioner of Police.[6]The defence solicitor referred to another decision of Van Hese v Constable Brown.[7]An amount of $2,000.00 to $3,000.00 compensation was offered and it was submitted that an intensive corrections order was a severe punishment. The magistrate said: “the ICO has largely fallen out of fashion as I understand by reason of the existence of the order of immediate parole”.[8]The defence solicitor then handed to the magistrate written submissions.[9]These submissions pointed out:
  1. (a)
    Ms Anthony was a negative influence on the appellant;
  1. (b)
    There was a restraining order in place;
  1. (c)
    He was now in a stable relationship with a Ms McManagan;
  1. (d)
    He had three sessions with a psychologist since the offence;
  1. (e)
    He had shown enthusiasm about addressing anger management/alcohol abuse;
  1. (f)
    Since the offence he did not drink whilst out and only drank in moderation;
  1. (g)
    He had never been subjected previously to a community based order;
  1. (h)
    The appellant tried to stop the fight to start with;
  1. (i)
    The complainant was assaulted first by Mr Jorgensen after which the appellant became involved in the assault;
  1. (j)
    There is no evidence confirming who caused what injuries;
  1. (k)
    The appellant had co-operated with Police and expressed remorse;
  1. (l)
    An early plea was indicated;
  1. (m)
    It was submitted that nine months with a parole release date of 20 June 2016 should be imposed with a declaration of time served. Alternatively an intensive corrections order should be imposed;
  1. (n)
    The co-accused’s sentence was relied upon.

Decision

  1. [26]
    The magistrate stated that she had read a number of cases. She noted fortunately there were no serious injuries sustained to the complainant. She found that there was a significant assault. She accepted the appellant was generally remorseful and had excellent work references and his prospects of rehabilitation were good. But the incident was a serious one, the appellant was the aggressor throughout and kicked and stomped the complainant whilst he was on the ground. There was a history of public nuisance and ultimately she stated “I consider that a term of actual custody is mandated for an act of this type”. Having regard to his co-operation, work history and prospects for rehabilitation, she determined he would serve only two months’ actual imprisonment. No order for compensation was made.

Submissions on appeal

  1. [27]
    The appellant submits that the magistrate engaged in a number of errors here. Firstly, it is submitted that the magistrate erred in finding that the appellant had the “benefit” of not being charged with a more significant offence.[10]It is submitted that the offence was relevant to penalty and it was not relevant that he could have been potentially charged with something greater. The respondent on the other hand submits that this was not an error. It submits the comment was made in the context of there not being lasting injuries.
  1. [28]
    In my respectful opinion this was an error. It was not to the appellant’s benefit that he was not charged with a more serious offence. The magistrate merely had to consider the facts of this case and the charge before her to determine the penalty.
  1. [29]
    The appellant submits that it was in error for the magistrate to consider that a term of actual custody was “mandated” for an act of this type. The respondent, on the other hand, submits that this was a serious offence and she did not fetter her discretion here.
  1. [30]
    I consider that the magistrate erred here as well. In R v Middleton and Johns[11]Jerrard JA held:

“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 a sentencing discretion.”

  1. [31]
    In my view imprisonment was not mandated in this case. It was within the range certainly but was not mandatory. I consider that the magistrate erred in making that statement.
  1. [32]
    The appellant then submitted that the magistrate failed to declare the six days of pre-sentence custody. The respondent admits that the magistrate failed to do this but says that the magistrate did reduce the parole release date by that time.
  1. [33]
    I consider it was an error for the magistrate not to apply the provisions of s 159A of the Penalties and Sentences Act 1992 (Q). The section provides that pre-sentence custody must be taken to be imprisonment already served unless the Court otherwise orders. The issue was not considered. 
  1. [34]
    The next ground relied upon was that the magistrate considered cases which she had not communicated to the defence. In particular, she relied on R v Edwards[12]and R v Bryan ex-parte Attorney-General.[13]
  1. [35]
    I consider this was also an error. The defence had available to it submissions which would distinguish one of those cases from the present. In Bryan a knife was involved and six years’ imprisonment was imposed. The offence was one of grievous bodily harm. In Edwards seven years with an Serious Violent Offence declaration was imposed for an offence of wounding with intent.
  1. [36]
    In those circumstances I find there was an error.
  1. [37]
    The defence next submits the magistrate erred in finding that the Intensive Correction Order (“ICO”) had fallen out of fashion. The prosecution, on the other hand, submits that there was some truth to the statement.
  1. [38]
    In my view, the statement was in error. The fact is an ICO is an available sentencing option.
  1. [39]
    Indeed, in R v Taylor and Napatali[14]it was noted that an ICO is “a useful method for dealing with young offenders… where there is considered to be some prospect that they will not re-offend”. However I consider the error immaterial as the 15 month head sentence was an appropriate one here.
  1. [40]
    Finally, the appellant submits that the magistrate failed to consider the issue of compensation. The prosecution submits that the magistrate was made aware of this and a person cannot “buy their way out of jail”.
  1. [41]
    An offer of compensation may be regarded in mitigation of penalty.
  1. [42]
    It was noted in R v Allen[15]that in the context of restitution:

“Restitution in full is a means of demonstrating that crime need not pay and sometimes does not pay and restitution can also be evidence for remorse quite independently from the benefit that it gives to the victim. That benefit is appropriately extended to the person being sentenced usually by significant reduction in any actual term of imprisonment imposed.” 

  1. [43]
    Also as was said in R v Cuff ex-parte Attorney-General:[16]

“A person ought not to be able to buy himself out of serving a custodial sentence by paying compensation, but that does not mean that in an appropriate case the fact that compensation is offered and paid cannot be a relevant factor for the sentencing judge to take it into consideration.” 

  1. [44]
    It was also noted in R v Tapiolas[17]that efforts at compensation are strong matters in mitigation.
  1. [45]
    I consider it was an error for the magistrate not to place any weight upon the fact that compensation was offered in this case.
  1. [46]
    Finally, an issue was raised as to whether the magistrate took into account the plea of guilty. Her Honour did not mention it in the reasons. Prima faciethere was noncompliance with s 13 of the Penalties and Sentences Act.
  1. [47]
    In the result though I am not persuaded there is error on this score as the magistrate referred to “the defendant’s cooperation”[18]in the sentencing remarks.

Conclusion as to the errors

  1. [48]
    As a result of the errors I have found in the approach in this case it is appropriate for this Court to resentence the appellant.[19]
  1. [49]
    The appellant submits that on the resentence an immediate parole release date should be ordered. He submits that the head sentence is excessive. It is submitted the mitigating factors were of importance to which the magistrate made little reference.
  1. [50]
    The respondent submits that in light of the appellant’s history, the force used and the vicious nature of the attack in light of some of the comparable decisions the penalty imposed below was appropriate.
  1. [51]
    The appellant also seeks to adduce the following new evidence:
  1. (a)
    Whilst in the watch house after being remanded in custody, he was elbowed by another inmate which lead to damage to his teeth. He says he did not make a complaint about this as he was scared.
  1. (b)
    He suffered from a rash, scabs and sores while in the watch house. This is because he was not able to change clothing.
  1. (c)
    He has arranged a total of 10 psychology sessions.
  1. (d)
    He is working full time and has been reporting on bail.
  1. [52]
    The respondent opposes the admission of this new evidence as:
  1. (a)
    The evidence could have been presented to the magistrate on 20th June 2016.
  1. (b)
    Evidence of his work was already before the court.
  1. (c)
    The evidence as to the alleged assault is not supported by any complaint of assault nor CCTV footage from the watch house.
  1. (d)
    The CCTV footage shows the appellant in different clothing and being taken to showers.
  1. (e)
    In any event this evidence has no bearing on the sentence to be imposed.
  1. [53]
    Section 223 (2) of the JA permits the court to admit new evidence if there are special grounds for granting leave. In light of the fact the issues concerning the assault were not raised before the magistrate at the resumed hearing, in light of the factual disputes which exist and in light of the fact the new evidence would not materially affect the outcome here, I decline to admit the new evidence concerning the assaults. I have already been informed that the appellant is in employment.

Comparable decisions

  1. [54]
    In R v Walsh, Sayer and Thompson; ex parte Attorney-General[20]the offenders jointly assaulted the complainant, in a not dissimilar way to the present case. The complainant though punched one of the accused first. The complainant suffered more serious injuries including a skull fracture, five stitches to the eye socket, black eyes, subconjunctival haemorrhage, swelling and bruising. The respondents had no previous convictions. The primary Judge imposed fines. The Court considered that imprisonment was appropriate even if fully suspended. The initial provocation by the complainant was significant. Suspended sentences of six months were added to the fines.
  1. [55]
    All in all, the case is similar to the instant one in that although the present offender has some previous convictions and the provocation was worse in Walsh, the injuries were more significant and the attack by all three seems more prolonged. I note the maximum in that case was seven years imprisonment which is relevant, certainly to the length of the head sentence.
  1. [56]
    In R v Middleton; R v Johns[21]the offenders were charged also with the circumstance of aggravation of being armed. They were young (19 and 22) and of good character. They attended an address because they thought they had been “ripped” off by the complainant concerning drugs and money with a number of others. It was a planned assault. The complainant was sprayed with mace and he was then punched and kicked. The complainant produced a knife and stabbed Middleton. The complainant suffered scratches and abrasions. The primary Judge sentenced Johns to six months imprisonment and probation and Middleton to three months imprisonment and probation.
  1. [57]
    The appeal was allowed. In effect, the prison term was reduced to 28 days for Middleton and less for Johns. It was held that there was no error in the imposition of a prison term. It was thought preferable not to return Johns to prison for a short period bearing in mind he had been on appeal bail.[22]
  1. [58]
    I consider that case worse than the present case. There a significant degree of planning involved in Middletonand a deliberate attendance at the complainant’s place with a number of males. Again, I note the maximum penalty was seven years at that stage.
  1. [59]
    In R v Lude; R v Love[23]the appellants were jointly charged with and pleaded guilty to 1 count of assault occasioning bodily harm in company. Each was sentenced originally to 18 months’ imprisonment with a parole release date fixed after six months. On appeal Mr Lude, in effect, received nine months’ imprisonment with a parole release date after having served about two months and Mr Love received nine months’ imprisonment having served approximately three months. In that case there was a concerted attack on the complainant. The injuries were described as a laceration to the bridge of his nose, deviation of the nasal septum, blackened eyes, a tender neck, lumbar spine and ribs and his chest was bruised. In a victim impact statement he noted his upper denture plate was broken and there were cuts on the inside of his mouth. Mr Love was 20 years of age and had a minor criminal history, which included a charge of assaulting Police. Mr Lude was 21 years of age at the time of the offence and did not appear to have any previous convictions.
  1. [60]
    It was noted at [17]-[18]:

“…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 conviction. Nor were the other strong mitigating features by way of the applicant’s co-operation with police and their early pleas of guilty adequately reflected.

[18] 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. There is, I consider, some basis for distinguishing between the two applicants [by reason of the previous convictions of Love].”

  1. [61]
    Again, I consider the injuries in Lude and Love to be worse than in the present case. There was also more deliberation in the sense that Love was hanging outside of the car window shouting. There was apparently a verbal altercation with the occupants of another car. The car in which Love and Lude were travelling deliberately went around a roundabout and then back and stopped next to the other car. Love got out and kicked some cars and this was when the complainant remonstrated with him. Love assaulted him and then Lude joined in.
  1. [62]
    In R v Wilkins; ex parte Attorney General (Qld)[24]the offender had pleaded guilty to 1 count of assault occasioning bodily harm, unlawful entry of a vehicle to commit the indictable offence and wilful damage. He committed the offences during a three year operational period of a suspended two year term of imprisonment for dangerous operation of a vehicle causing grievous bodily harm. He was ordered to serve 12 months of the remaining 21 months of the suspended sentence with parole fixed as of the date of sentence and in respect of each of counts 1, 2 and 3 he was also sentenced to 12 months’ imprisonment with a parole release date fixed as at the date of sentence. He was also ordered to pay restitution.
  1. [63]
    The Court of Appeal increased the sentence by ordering him to serve the whole of the suspended sentence. In respect of each of counts 1, 2 and 3 he was ordered to be imprisoned for six months cumulatively upon the activated suspended imprisonment with a parole release date fixed as at the date of sentence namely 2 June 2008. The circumstances of the offending was that the complainant was a part-time taxi driver. At about 3am in Toowoomba the respondent leaned in through the driver’s window and for some unknown reason he became aggressive yelling at the driver and punched him to the jaw three or four times. The respondent was restrained but broke free and tried to open the taxi door threatening to kill the taxi driver. He succeeded in opening the door and kicking the complainant three or four times. He then kicked and threw something at the taxi and caused $1,427.00 worth of damage. The complainant was seen by a doctor at the Toowoomba Hospital and a contusion to the right mandible was noted with treatment by simple analgesia. It was noted at [20]:

“Lude and Love demonstrates that a period of actual imprisonment could well have been imposed in this case. I agree, however, with the primary judge the better course is to now order immediate release on parole in this case.”

  1. [64]
    It was noted specifically that the respondent had successfully served two and a half months’ parole, the injuries were relatively minor and he had been paying restitution.
  1. [65]
    In R v Hilton[25]the offender received 18 months’ imprisonment suspended after six months. I consider that case worse than the present one because the offender was 35years of age, and he had two previous convictions for assault. Also the complainant in that case received a fractured cheek bone and scarring to his face.
  1. [66]
    In R v Ball[26]the offender received 18 months’ imprisonment to serve three months. Whilst the offender there was younger, for absolutely no reason he punched the complainant in McDonalds who fell backwards and hit his head on the floor. He suffered the very serious injury of subdural haematoma as a result of which he underwent an emergency craniotomy to relieve pressure on his brain. That was a case of entirely gratuitous violence. It was said that the requirement to serve three months was “within the sentencing discretion”.
  1. [67]
    In R v Levy and Drobny; ex parte Attorney General (Qld)[27]Mr Levy pleaded guilty to 1 count of causing grievous bodily harm and was originally sentenced to 30 months but ordered to be released on parole immediately. The appeal by the attorney was allowed and in lieu thereof he was to be released after having served four months’ imprisonment. Mr Drobny had pleaded guilty to 1 count of assault occasioning bodily harm whilst in company and was ordered to perform unpaid community service of 150 hours to be performed within 12 months with no conviction recorded. The Attorney’s appeal in that regard was dismissed.
  1. [68]
    In that case Drobny and Levy at about 5 a.m. entered the 64 year old complainant’s taxi. The complainant had driven about a kilometre when he became aware that neither Drobny nor Levy had money to pay for the taxi fare. Drobny and Levy refused to provide identification and the complainant said he would take them to the Police station. Drobny and Levy started swearing and cursing. The taxi stopped, they got out and left the doors open. The complainant got out of the taxi and was talking to them and closing the doors. Drobny then initiated an attack on the complainant. He tackled him, grabbing his legs and caused him to topple over on to the ground. The tackle caused pain and bruising to the complainant’s thighs. Drobny had no further dealings in the assault. Whilst the complainant was on the ground Levy started to punch and kick him a number of times. One kick to the face caused fractures of the cheek. Aside from facial fractures the complainant was later reported to have “seizure like activity” and also had a base of skull fracture. There was bruising of the left eye. He underwent operative procedures. Drobny was 19 years of age at the time of the offence and had no previous convictions. Levy was 19 years and a half at the time of the offence and had no previous convictions. On the night of the offence he and Drobny were discussing Levy’s previous girlfriend who had committed suicide some months before.
  1. [69]
    The Court noted at [39] that Wilkins involved a more serious level of assault than that involving Drobny and, further, Wilkins had a criminal history:

“Wilkins does not support the view that any period of actual custody is required in the case of Drobny.”

  1. [70]
    The Court at [43] considered the assault in Lude and Love was of much greater severity than that in Wilkins. Drobny merely tackled the taxi driver to the ground, causing bruising to his legs. At [46], it was further said:

“This Court has observed recently that the seriousness of an offence can, according to the circumstances outweigh the considerations of youth and rehabilitation, particularly where there is a strong need for deterrence.”

  1. [71]
    With respect to Levy, I have already indicated how the Court disposed of his matter.
  1. [72]
    I note that the magistrate in this matter was not referred to many of these comparable cases from the Court of Appeal when she sentenced the appellant.
  1. [73]
    It appears to me that the cases show that the range of penalty in a case such as the present includes a prison term with immediate release on parole (or a full suspension or an ICO) to a prison term with actual custody for at least a number of weeks/months.

Disposition of this case

  1. [74]
    In reaching my conclusions here I have had regard to the principles of sentencing mentioned in s 9(1) of the Penalties and Sentences Act 1992 (Q). I also primarily have regard to the matters mentioned in s 9(3) of the Act and to the matters mentioned in s 9(2) of the Act.
  1. [75]
    There was no doubt that this was a vicious assault on the complainant but there was some background to it with the appellant unsuccessfully trying to defuse the situation to start with.
  1. [76]
    Fortunately though the injuries were not as serious as one sees in some of the cases.
  1. [77]
    Balanced as against the seriousness of the matter is the fact that the appellant entered a very early plea of guilty; his admissions to police and he had a very good work history. He also had favourable character references. Whilst he had previous convictions, none were for actual assault and in addition the appellant had never previously been given the benefit of a community based order. He also had undergone some counselling since the offence and was out of the destructive relationship he was in at the time of the offence. He was only 25 years of age and had a job. Importantly there was the offer of compensation. I consider that a significant sign of remorse here. It is not as if the compensation was offered for the first time on appeal.
  1. [78]
    Whilst the sentence of Jorgensonis not on all fours with this case, it is not irrelevant and I have regard to it. This is particularly so when one considers he started the assault on the complainant. But a lower head sentence is justified in his case bearing in mind he was not charged with the circumstance of aggravation, had no previous convictions and engaged in less violence. I note it was said by the majority in Green v R[28]that   practical difficulties arising out of a co-offender being charged with a less serious offence do not exclude the operation of the parity principle, but of course the effect given to it will vary.
  1. [79]
    The fact is the appellant now has spent eight days in pre-sentence custody and further since his release on bail has faithfully complied with bail conditions of reporting three days a week. As noted in two of the cases, it would create hardship to send a person in the appellant’s position back to prison.
  1. [80]
    I also note in R v Mules[29]it was said:

“This Court's decision in R v Horne,[30]a case to which her Honour unfortunately was not referred, makes clear that youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and cooperated with the administration of justice, even where they have committed serious offences like these, should receive more leniency from courts than would otherwise be appropriate. That is because rehabilitation of young offenders is in the community interest and especially so where the offender is the carer of young children.”

  1. [81]
    It is a finely balanced matter. But for the fact the appellant was released on appeal bail and the offer of compensation I would have thought the imposition of 2 months actual imprisonment was within range here. However I am ultimately persuaded that an immediate parole release date should be set with an order for the payment of $3,000.00 compensation.

Orders

  1. [82]
    My orders then are as follows:
  1. The appeal is allowed.
  1. The sentence is varied so that the appellant is released on parole immediately.
  1. The sentences are otherwise confirmed.
  1. The appellant is released on parole pursuant to s 200(1) of the Corrective Services Act 2006 (Q).
  1. The appellant is required to report to the Probation and Parole Office as required under the Act between 9.00am and 5.00pm today or on the next business day.
  1. If the appellant fails to do so, he will be unlawfully at large.
  1. The appellant’s legal representatives have undertaken to inform him of his obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Q).
  1. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Q) it is declared that the appellant has spent eight days in presentence custody. I declare this time to be imprisonment already served. The dates between which the appellant was held in presentence custody are 14 June 2016 and 22 June 2016.
  1. Pursuant to s 35 of the Penalties and Sentences ActI order the defendant pay compensation in the sum of $3,000.00 to the Registrar of the District Court at Beenleigh within seven days for transmission to Tony Robert Lumb of an address to be provided to the registrar by the Director of Public Prosecutions. In default of payment within that time I order the appellant be imprisoned for a period of 6 weeks. If it is not paid within that time I direct the appellant appear before the District Court at Beenleigh at 10am on 22 August 2016 to show cause why the default imprisonment should not be enforced.

Footnotes

[1][2009] 2 Qd R 489.

[2]Exhibit 9.

[3]Transcript, day 1, page 15.20. Although I note at the resumed hearing two cases were handed up.

[4][2001] QCA 351. As supporting the contention no actual custody was required.

[5]Exhibit 7.

[6][2016] QDC 68.

[7][2015] QDC 92.

[8]Transcript, day 2, page 5.12.

[9]Annexure A to Exhibit 1.

[10]Reasons, page 2.15.

[11][2006] QCA 92 at [39].

[12]Her Honour stated it was a 2012 case, but no further citation was given but I assume it is R v Edwards [2012] QCA 117.

[13]Again no citation was given but I assume it was R v Bryan; ex parte Attorney-General [2003] QCA 18.

[14](1999) 106 A Crim R 578 at page 581.

[15][2005] QCA 73 at page 11.

[16][2001] QCA 351 at page 5.

[17][2008] QCA 118 at [14].

[18]Reasons, page 3.4.

[19]AB v R (1999) 198 CLR 111 at [130].

[20][1998] QCA 217.

[21](2006) 165 A Crim R 1.

[22]Ibid. at [25] and [41] adopting the approach by Thomas JA in R v Nievandt [2000] QCA 224.

[23][2007] QCA 319.

[24][2008] QCA 272. This case is referred to in the case of Levy and Drobny discussed later.

[25][2009] QCA 12.

[26][2012] QCA 51.

[27][2014] QCA 205.

[28](2011) 244 CLR 462 at [30] per French CJ, Crennan and Kiefel JJ.

[29][2007] QCA 47 at [21] per McMurdo P.

[30][2005] QCA 218.

Close

Editorial Notes

  • Published Case Name:

    Ross v The Commissioner of Police

  • Shortened Case Name:

    Ross v The Commissioner of Police

  • MNC:

    [2016] QDC 205

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    12 Aug 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AB v The Queen (1999) 198 CLR 111
2 citations
Jump To
Cite 1 - (1999) 198 CLR 111
Cite 2 - (1999) 198 CLR 111
Attorney-General v Walsh [1998] QCA 217
2 citations
Jump To
Cite 1 - [1998] QCA 217
Cite 2 - [1998] QCA 217
Green v The Queen (2011) 244 CLR 462
2 citations
Jump To
Cite 1 - (2011) 244 CLR 462
Cite 2 - (2011) 244 CLR 462
La Carta v Commissioner of Police [2016] QDC 68
2 citations
Jump To
Cite 1 - [2016] QDC 68
Cite 2 - [2016] QDC 68
R v Allen [2005] QCA 73
2 citations
Jump To
Cite 1 - [2005] QCA 73
Cite 2 - [2005] QCA 73
R v Ball [2012] QCA 51
2 citations
Jump To
Cite 1 - [2012] QCA 51
Cite 2 - [2012] QCA 51
R v Bryan; ex parte Attorney-General [2003] QCA 18
2 citations
Jump To
Cite 1 - [2003] QCA 18
Cite 2 - [2003] QCA 18
R v Cuff [2001] QCA 351
2 citations
Jump To
Cite 1 - [2001] QCA 351
Cite 2 - [2001] QCA 351
R v Edwards [2012] QCA 117
2 citations
Jump To
Cite 1 - [2012] QCA 117
Cite 2 - [2012] QCA 117
R v Hilton [2009] QCA 12
2 citations
Jump To
Cite 1 - [2009] QCA 12
Cite 2 - [2009] QCA 12
R v Horne [2005] QCA 218
2 citations
Jump To
Cite 1 - [2005] QCA 218
Cite 2 - [2005] QCA 218
R v Levy & Drobny; ex parte Attorney-General [2014] QCA 205
1 citation
Jump To
Cite 1 - [2014] QCA 205
R v Lude [2007] QCA 319
2 citations
Jump To
Cite 1 - [2007] QCA 319
Cite 2 - [2007] QCA 319
R v Middleton [2006] QCA 92
2 citations
Jump To
Cite 1 - [2006] QCA 92
Cite 2 - [2006] QCA 92
R v Middleton and Johns (2006) 165 A Crim R 1
2 citations
Jump To
Cite 1 - (2006) 165 A Crim R 1
Cite 2 - (2006) 165 A Crim R 1
R v Mules [2007] QCA 47
2 citations
Jump To
Cite 1 - [2007] QCA 47
Cite 2 - [2007] QCA 47
R v Neivandt [2000] QCA 224
2 citations
Jump To
Cite 1 - [2000] QCA 224
Cite 2 - [2000] QCA 224
R v Tapiolas [2008] QCA 118
2 citations
Jump To
Cite 1 - [2008] QCA 118
Cite 2 - [2008] QCA 118
R v Taylor and Napatali; ex parte Attorney-General (1999) 106 A Crim R 578
2 citations
Jump To
Cite 1 - (1999) 106 A Crim R 578
Cite 2 - (1999) 106 A Crim R 578
R v Wilkins; ex parte Attorney-General [2008] QCA 272
2 citations
Jump To
Cite 1 - [2008] QCA 272
Cite 2 - [2008] QCA 272
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 489
Cite 2 - [2009] 2 Qd R 489
Van Hese v Brown [2015] QDC 92
2 citations
Jump To
Cite 1 - [2015] QDC 92
Cite 2 - [2015] QDC 92

Cases Citing

Case NameFull CitationFrequency
Day v Commissioner of Police [2017] QDC 772 citations
English v Queensland Police Service [2021] QDC 2172 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.