La Carta v Commissioner of Police
[2016] QDC 68
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- La Carta v Commissioner of Police[2016] QDC 68
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La Carta v Commissioner of Police[2016] QDC 68
La Carta v Commissioner of Police[2016] QDC 68
DISTRICT COURT OF QUEENSLAND
CITATION: | La Carta v Commissioner of Police [2016] QDC 68 |
PARTIES: | CLINTON LA CARTA< (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 2466/15 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 1 April 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 March 2016 |
JUDGE: | Farr SC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where the appellant pleaded guilty in the Magistrates Court to one count of assault occasioning bodily harm – where the appellant was sentenced to 12 months imprisonment with a set parole release date – whether sentence imposed was excessive – where leave was sought to adduce new evidence. Justices Act 1886, s 222, s 223 Commissioner of Police v Al Shakarji [2013] QCA 319 Gallagher v The Queen (1986) 160 CLR 392 Pavlovic v The Commission of Police [2006] QCA 134 R v Ball [2012] QCA 51 R v Lude; R v Love [2007] QCA 319 R v Middleton and Johns [2006] QCA 92 R v Ryan; ex parte Attorney-General [2000] QCA 401 R v Smallwood & Attorney-General of Queensland [1997] QCA 91 R v Walsh, Sayer & Thompson; ex parte Attorney General of Queensland [1998] QCA 217 Teelow v Commissioner of Police [2009] QCA 84 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | A E Cappellano for the appellant W Slack for the respondent |
SOLICITORS: | Howden, Saggers, Cridland & Hua for the appellant Director of Public Prosecutions for the respondent |
- [1]The appellant pleaded guilty to one count of assault occasioning bodily harm in the Brisbane Magistrates Court on 19 June 2015 and was sentenced to 12 months imprisonment with a parole release date set at 16 October 2015.
- [2]The appellant was immediately granted appeal bail and has not served any actual imprisonment.
- [3]He now appeals against that sentence pursuant to s 222(2)(c) of the Justices Act 1886 on the ground that the sentence is excessive.
Nature of appeal
- [4]An appeal under s 222 is an appeal by way of rehearing, either on the original evidence or, if leave is granted to adduce new evidence, on both the original and the new evidence.[1]
- [5]It is well established that to succeed on such an appeal an appellant must establish some legal, factual or discretionary error.[2]
New evidence
- [6]Leave was sought to adduce two pieces of new evidence.
- [7]The first was CCTV security footage of the incident and the events leading up to it. That footage was not, for reasons which have not been stated, placed before the learned magistrate in the court below.
- [8]Both the appellant and the respondent have submitted that it is evidence which should be before the court.
- [9]
- Could the evidence, with reasonable diligence, have been produced at the trial;
- Is the evidence credible or capable of belief; and
- Whether the evidence, if believed, could have led the tribunal of fact to return a different verdict.
- [10]The security footage was evidence that could have been produced to the court below. It is obviously evidence which is credible or capable of belief. The appellant has submitted that it is evidence which could lead the court to return a different sentence as the footage corrects errors of fact that were made in the submissions before the magistrate. The respondent has submitted that during submissions in the court below, the appellant’s solicitor maintained that there was a mutual wrestle between the complainant and the appellant before the offence was committed. The respondent submits that the footage actually shows that the appellant instigated the altercation and the complainant did no more than defend himself. The appellant submits that the footage reveals that the complainant was the aggressor throughout.
- [11]It was observed by McKenzie J in R v Smallwood:
“Where an accused person’s actions are captured on tape there is no reason why what is clearly shown on the tape should not be given full effect. If the visual image conveys more graphically than a spoken word what was done by the accused the mere fact that that occurs does not disadvantage an accused in an impermissible or unfair way.”[5]
- [12]In the circumstances, I am satisfied that special circumstances exist and that the evidence could lead to a different conclusion. Accordingly, leave is granted.
- [13]The second piece of evidence is a statement from Plain Clothes Senior Constable Jody Briggs.
- [14]The appellant submits that her statement corrects another mistake made during submissions in the court below as to the circumstances surrounding the appellant first presenting himself to a police station four days after the incident. The respondent does not object and concedes that the statement clarifies the issue and may be relevant to the sentence imposed.
- [15]In the circumstances it is appropriate to grant leave.
Circumstances surrounding the offence
- [16]The offence occurred at about 8.30 pm on 25 December 2014. The complainant, Craig Armstrong, was the building maintenance manager at a secure residential complex in Fortitude Valley.[6] The appellant was a guest of one of the residents of the complex, and had been celebrating Christmas with friends on the rooftop of the complex.[7]
- [17]The complainant and the appellant met in the complex elevator.[8] The appellant had left the rooftop gathering and returned to his friend’s apartment to use the bathroom. Once in the elevator the appellant found that he was unable to return to the rooftop without a security key. As the complainant was leaving the elevator, the appellant asked the complainant, who was dressed in plain clothes, to give him access to the roof. The complainant refused and both men began to argue. During the verbal argument, the complainant told the appellant that he must leave the premises and pushed on the appellant’s back by the use of one arm indicating that he wished the appellant to leave the elevator.
- [18]The argument continued in the building foyer and out the front door with the complainant continuing to try to remove the appellant and the appellant attempting to re-enter the premises. During the argument the complainant pushed the appellant on three occasions, including once down the front entry steps, which caused him to drop his phone although he did not fall over. The complainant also physically blocked the appellant from re-entering the building.[9]
- [19]After this continued for a period of time, and after what appeared to be an attempted head butt by the complainant, the appellant placed his glasses and phone on the concrete floor and removed his thongs. The CCTV footage reveals that the complainant was the aggressor up to that point in time. The appellant then approached the complainant and as he neared him the complainant raised his hands and clenched his fists at which time the appellant grabbed hold of the complainant’s arms and a wrestle ensued. The wrestle lasted for approximately two minutes. During it, each man struck or attempted to strike the other with fists whilst simultaneously trying to protect or defend himself. The wrestle continued until the complainant was positioned across the appellants back, at which time the appellant lifted him up and slammed him to the ground. The appellant then kicked the complainant twice to the head with significant force and then stomped on his head a number of times. It is clear in the footage that the complainant was rendered unconscious during that time. The appellant then stomped hard on the complainant’s upper chest before delivering a powerful punch to the head of the unconscious man. The appellant then collected his belongings and then rang his friends and informed them of the incident before leaving the scene. Police and ambulance were called at this time.[10]
- [20]As a result of the incident, the complainant was rendered unconscious for a period of approximately 12 minutes. He suffered facial swelling, multiple superficial skin abrasions, several anterior rib fractures and an ongoing headache that lasted for at least two days.[11]
- [21]On 29 December 2014, the appellant attended the Fortitude Valley Police Station and volunteered himself as the person who had been involved in the incident. He had not been approached by police prior to that time. Police had received no formal complaint so the appellant left his personal details so that he could be contacted at a later date. After being contacted by police some weeks later, the appellant again voluntarily attended at the police station and this time took part in an interview with police and made admissions to the offence. He stated that he was intoxicated at the time and as a consequence his exact recollection of the incident was poor. He was shown the CCTV security footage of the incident and accepted his involvement and acknowledged that he could have walked away from the situation.[12]
Criminal history
- [22]The appellant has a minor criminal history which reveals the following:
- (a)On 19 January 2009, he pleaded guilty in the Brisbane Magistrate’s Court to the offence of public nuisance and was fined $300. No conviction was recorded.
- (b)On 12 April 2010, he pleaded guilty in the Brisbane Magistrates Court to offences of assault or obstruct a police officer, commit public nuisance and contravene a direction and was fined a total of $850. Again no convictions were recorded.
Ground of appeal
- [23]Despite the appellant’s only ground of appeal being that the sentence imposed was excessive, submissions have been made to this court that the magistrate was in error when he stated that the Court of Appeal has said that the starting point for sentence, when a person is kicked when on the ground, is actual imprisonment.[13] The respondent has conceded the magistrate misdirected himself in that regard and that because of that error, the sentence should be set aside and the appellant should be sentenced afresh. The respondent has not objected to the submission not reflecting the ground of appeal. In those circumstances I will grant leave to the appellant to add the following ground of appeal:
“The magistrate erred by stating that Court of Appeal authority was to the effect that the starting point for determination of sentence was a period of actual imprisonment.”
- [24]I note that the learned magistrate did not cite the Court of Appeal authority to which he referred. Neither counsel was able to locate any such authority and neither was I.
- [25]In those circumstances the inevitable conclusion is that the magistrate has impermissibly restricted himself when determining the appropriate sentence.
- [26]It follows that an error of law has occurred of such a nature that requires this court to determine the issue of sentence afresh.
Submissions on behalf of appellant
- [27]Counsel for the appellant has submitted that whilst a sentence that requires the appellant to serve some actual imprisonment might be within range for this offence, so too would be a sentence that allows for his immediate release, either by way of immediate parole release or an immediate suspension. It is submitted that the following circumstances and considerations would cause this court to exercise its discretion to impose a sentence that does not require the appellant to immediately serve any actual imprisonment:
- his plea of guilty;
- his lack of relevant criminal history;
- the fact that the complainant was the initial aggressor;
- his co-operation with the police where he attended at a police station before being approached by police and his admissions in a subsequent interview;
- his very good employment history as a financial broker and planner;
- his demonstrable remorse;
- the fact that the offending conduct was out of character for him;
- the relatively minor nature of the complainant’s injuries;
- the steps he has taken since this incident to reduce his alcohol consumption;
- his willingness to pay compensation to the complainant;
- the fact that the offence was spontaneous and involved no pre-meditation;
- the fact that no weapon was involved; and
- the fact that he was suffering from anxiety at the time and had sought professional help for that problem prior to the offending conduct.
- [28]In relation to that last point, I note that there is no evidence before the court that links or suggests any nexus between his anxiety and the offending conduct. For that reason, that submission carries little if any weight.
Submissions on behalf of respondent
- [29]The respondent has submitted that the following features warrant the imposition of a sentence that involves an actual term of imprisonment:
- the serious nature of the offending conduct involving substantial kicks, stomps and a punch to the head and chest of the complainant when he was on the ground and when he was unconscious for part of it;
- the violence occurred in a public place;
- the complainant suffered significant injuries;
- the appellant left the complainant unconscious on the ground;
- the appellant has some previous convictions;
- the appellant was 25 years of age at the time of the offence;
- the potential for even more serious injury was significant;
- general deterrence is a significant consideration;
- personal deterrence is a significant consideration;
- considerations of punishment and community denunciation for this type of offending conduct require the imposition of an actual term of imprisonment; and
- the offence involved the appellant delivering a series of kicks, stomps and a punch rather than just a single blow.
Comparative sentences
- [30]The court was referred to a number of comparable cases for assistance. The respondent referred to R v Ryan[14] which was an Attorney-General’s appeal against the inadequacy of sentence. The offender pleaded guilty to two counts of assault occasioning bodily harm for which he was sentenced to two years’ probation and ordered to perform 200 hours of community service. In that matter the victim, who was drunk and disorderly, was being escorted from a casino by security officers. They passed by the offender who had previously been ejected. The offender abused the security officers indicating that they should let the complainant go. After the complainant was released he walked up to the offender and for no apparent reason swung a punch at him but missed by a considerable distance. The offender then retaliated by pushing the complainant and then striking him with a heavy blow to the head with a closed fist. The complainant fell to the ground and as he tried to sit up the offender kicked him in the head. As he lay on the ground the offender delivered a further kick to the head. The second charge related to the offender throwing punches at someone who came to intervene. The complainant suffered bruising to the area of the right eye and chipping of his two front teeth. The offender admitted to the offences but denied kicking the complainant a second time. He was 23 years old, had no previous convictions of any significance, had a good employment history and entered an early plea of guilty. He was significantly affected by alcohol and a psychologist report identified that he was struggling with his reaction to the terminal illness of his stepfather as well as to the psychological consequences that he was suffering arising from a sexual assault that had been committed upon him three years earlier. The offending conduct was described as a brutal overreaction. By the time his appeal was heard he had completed the 200 hours of community service and was responding well to probation. Thomas J noted that whilst the sentence seemed light,[15] it nevertheless fell within the range of sentence available in cases of this kind, particularly noting that the prosecutor at first instance had submitted that a fully suspended term of imprisonment was within range. de Jersey CJ noted that a sentence that involved actual imprisonment would also have fallen within the acceptable range.
- [31]In R v Ball,[16] the offender pleaded guilty to one count of assault occasioning bodily harm and was sentenced to 18 months imprisonment suspended after three months. The offender, after a minor verbal disagreement with the complainant at a fast food outlet, struck the complainant to the face as the complainant was being escorted from the premises by security. The complainant hit his head on the floor and was rendered unconscious. The complainant sustained a subdural haematoma and needed emergency craniotomy to relieve pressure on his brain. The offender was intoxicated and much larger than the complainant. The act of violence was categorised as gratuitous and the sentence was not interfered with on appeal.
- [32]In R v Walsh, Sayer & Thompson,[17] each offender pleaded guilty to one count of assault occasioning bodily harm while in company. It involved three young men attacking the victim after an earlier altercation inside a hotel. The assault involved punches to the head and kicks to the body over a period of a couple of minutes. The victim suffered a base skull fracture with a traumatic closed skull fracture leak, a laceration to one eye socket requiring five stitches, black and swollen eyes, bruising, a bilateral subconjunctival haemorrhage and swollen periorbital areas. Neurological problems were still present two years after the offence. The offenders were of otherwise good character and reputation, had responsible jobs, had no previous convictions, were remorseful, offered compensation and entered early pleas of guilty. It was an Attorney-General’s appeal against the fines that were imposed at the first instance. The Court of Appeal varied the sentences by adding fully suspended six month terms of imprisonment to those substantial fines.
- [33]In R v Middleton & Johns,[18] the two offenders with two or three others attended at the complainant’s premises at night to confront him over money and drugs. The group then sprayed him with capsicum spray and punched and kicked him to the head and body. The victim sustained scratches and abrasions to his face, bruising to various parts of his body and a possible concussion. The offenders were young (19 and 22 years), pleaded guilty, had minor and irrelevant criminal histories and had good work records. Additionally, Middleton suffered a stab wound in the course of the incident. On appeal it was held that each should serve a short term of imprisonment to be followed by a lengthy period of probation.
- [34]It is of relevance though to note the following comment by Jerrard JA at [39]:
“[39] Those decisions make clear that even for offenders aged 18, 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.”
- [35]In R v Lude; R v Love,[19] the offender in Love with no provocation, attacked a taxi driver at a taxi rank by punching him in the head and face. Lude joined in the attack and punched and kicked the victim. The incident ended as a result of intervention by other taxi drivers. The victim suffered a laceration to the bridge of his nose, bruising to his face and body, a deviated septum and cuts to the inside of this mouth. Love was 20 years of age, co-operated with police, made admissions and entered an early plea of guilty. He had a minor criminal history for offences that suggested public misbehaviour. He also had a good work record. In Lude the offender was 21 years of age, was still suffering the effects of being badly burnt in a car accident three years earlier that claimed the life of his cousin, entered an early plea of guilty, co-operated with the police, had no previous convictions and did not instigate the assault. He was considered to be an unlikely reoffender. On appeal each man was sentenced to nine months imprisonment with parole release after three months for Love and after seven weeks for Lude.
Conclusion
- [36]These authorities demonstrate that the appropriate sentencing range for offences of the type the subject of this appeal can range from community based orders through to periods of actual imprisonment, depending on individual circumstances. In my view however, a community based order for an offence as serious as the present would be quite inappropriate. I note that counsel for the appellant is not seeking such an outcome. The real issue for determination in this matter is the length of the period of imprisonment to be ordered and whether the appellant should be required to immediately serve any part of it.
- [37]The mitigating features present in this case as listed in paragraph [27] above are such that greater leniency on sentence is appropriate then would otherwise be the case. I accept that his continuing rehabilitation is an important consideration, although it is not the only important consideration. I also accept that the behaviour the subject of this charge is out of character for the appellant.
- [38]Nevertheless, the following counter-balancing considerations are also relevant:
- the initial kick/kicks to the head were grossly disproportionate to the struggle that had taken place up to that point in time;
- the appellant stomped on the complainant’s head whilst he was prostrate on the ground and in no position to defend or protect himself;
- the complainant was rendered unconscious by one or more of the blows;
- it would have been very apparent to the appellant that the complainant was unconscious at least before the appellant delivered the last very forceful stomp to the complainant’s upper chest and the forceful punch to the complainant’s head;
- general deterrence, public denunciation of such violent behaviour and punishment are all relevant and significant considerations on sentence; and
- at 25 years of age he does not have the benefit of extreme youth that was relevant in some of the matters to which I have referred.
- [39]In my view there is one further feature that makes this matter particularly serious and that is that this offence is constituted by the appellant delivering a number of blows to the complainant whilst he was on the ground and, for some, whilst unconscious. This is not a case of a single punch or kick. The fact that the appellant kicked the complainant to the head when he was on ground is serious criminal behaviour in itself, but to then go on to deliver a number of further significant applications of force to a defenceless man makes this a particularly brutal assault.
- [40]It is through sheer good luck that the complainant did not suffer more serious injury. That is not to say, however, that the injuries he sustained were not serious. To be rendered unconscious for 12 minutes and to suffer a number of broken ribs is a serious outcome and speaks as to the degree of force used.
- [41]Whilst there are many mitigatory considerations, in my view the seriousness of the offending conduct is such that a term of actual imprisonment is required to properly reflect the seriousness of the offending conduct and to give due regard to principles of general deterrence and public denunciation.
- [42]As I have said however, the appellant’s rehabilitation is also a relevant consideration, as are the mitigating features previously mentioned.
- [43]Taking all of this into account, in my view a sentence of nine months’ imprisonment would properly reflect the seriousness of the offending conduct and pay due regard to issues such as general deterrence and public denunciation. It would also sit comfortably with the sentences imposed in the other matters to which I have referred, noting that two of those matters involved an Attorney-General’s appeal and therefore had, as an additional feature, the usual considerations of leniency that apply in such appeals. Taking the mitigating features into account however, the appellant should be released after serving a period of two months. Given his antecedents, continuing supervision does not appear to be necessary and a partially suspended sentence is appropriate.
- [44]Were it not for the fact that the complainant was the initial aggressor in this matter then the sentence that was imposed by the magistrate in the court below would have been well within the acceptable range for such an offence.
Footnotes
[1] Justices Act 1886, s 223.
[2] Commissioner of Police v Al Shakarji (2013) QCA 319 at [65] per Margaret Wilson J; Teelow v Commissioner of Police [2009] QCA 84 at [3]-[4]; White v Commissioner of Police [2014] QCA 121 at [8].
[3] (1986) 160 CLR 392.
[4] [2006] QCA 134 at [29]-[42].
[5] [1997] QCA 91 at p 7.
[6] Magistrates Court transcript, pp 1-2, LL 20-25.
[7] Magistrates Court transcript pp 1-4, LL 40-45.
[8] Magistrates Court transcript pp 1-2, L 25.
[9] Magistrates Court transcript pp 1-2, L 35 to pp 1-3, L 15.
[10] Magistrates Court transcript pp 1-3, LL 25-36; CCTV security footage of incident Ex 1.
[11] See medical report dated 27 December 2014 tendered as part of Exhibit 1 in the Magistrates Court hearing.
[12] Magistrates Court hearing transcript pp 1-3, L 38 to pp 1-4, L 15; pp 1-5, LL 9-20.
[13] Transcript of Magistrate’s Court proceedings at pp 1-7, L 40; pp 1-8, L 22; transcript of sentencing remarks at p 2, LL 9-14.
[14] [2000] QCA 401.
[15] At p 6.
[16] [2012] QCA 51.
[17] [1998] QCA 217.
[18] [2006] QCA 92.
[19] [2007] QCA 319.