Gray v Commissioner of Police
[2018] QDC 179
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- Unreported Judgment
- Gray v Commissioner of Police[2018] QDC 179
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Gray v Commissioner of Police[2018] QDC 179
Gray v Commissioner of Police[2018] QDC 179
DISTRICT COURT OF QUEENSLAND
CITATION: | Michael Brett Gray v Commissioner of Police [2018] QDC 179 |
PARTIES: | GRAY, Michael Brett v The Commissioner of Police |
FILE NO/S: | D92/18 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED ON: | 27 July 2018 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 27 July 2018 |
JUDGE: | Cash QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATION TO REDUCE SENTENCE – Assault occasioning bodily harm – Applicant convicted on own pleas of guilty – Offences comprised of a forceful blow to the back of the Complainant’s head, followed by kick to the Complainant’s head – Complainant left unconscious – Events captured on security video – Sentenced to 12 months imprisonment to be suspended after serving four months with operational period of two years – Ordered to pay $2000 compensation – No legal or factual error contended by Appellant – Ground of appeal being a discretionary error – Whether sentence manifestly excessive. |
LEGISLATION: | Justices Act 1886 ss 222(2)(c), 223 Penalties and Sentences Act s 9(3) |
CASES: | White v Commissioner of Police [2014] QCA 121 Shambayati v Commissioner of Police [2013] QCA 57 House v R (1936) 55 CLR 499 Teelow v Commissioner of Police (2009) 2 Qd R 489 R v Jackson [2011] QCA 103 R v Lude; R v Love [2007] QCA 319 La Carta [2016] QDC 68 R v Ball [2012] QCA 51 R v Hilton [2009] QCA 12 Yanner [1999] QCA 515 Jones [2003] QCA 474 Day v Commissioner of Police [2017] QDC 77 |
COUNSEL: | R Carroll for the Appellant G Cummings for the Respondent |
SOLICITORS: | Aitken Whyte Lawyers for the Appellant Office of the Director of Public Prosecutions (Queensland) for the Respondent |
- [1]On Monday, 23 July 2018, the appellant appeared before a Magistrate in Maroochydore. He entered a plea of guilty to one count of assault occasioning bodily harm, and was sentenced to imprisonment for 12 months, to be suspended after he served four months, for an operational period of two years. He was also ordered to pay $2000 compensation within one month, in default of which he was to be imprisoned for three weeks, and was banned from attending the Maroochydore Safe Night Out precinct for a period of two years.
- [2]The appellant was 34 years of age when he committed the offence, and 35 years of age when he was sentenced. He had a good job, no previous convictions, and a supportive family. The appellant appeals against the severity of the sentence imposed upon him last Monday, arguing the punishment was excessive. I have concluded the appeal should be dismissed, and what follows are my reasons for reaching that conclusion.
- [3]I will deal first with the principles which govern appeals of this nature. As the appellant pleaded guilty, the appeal can only be on the basis that the punishment imposed was excessive: section 222(2)(c) of the Justices Act 1886. The hearing before me is a rehearing, conducted on the record of the proceedings before the Magistrate and on any new evidence adduced by the parties by leave: section 223 of the Justices Act 1886.
- [4]Counsel for the appellant relied upon two affidavits in these proceedings, both affirmed on 26 July 2018: one of Ms Berkeley, and one of Ms Gray. Both referred, to a small degree, to material that was not, strictly speaking, before the Magistrate. The appellant did not contend that this material itself demonstrated error in the sentence below, and in these circumstances, I have received the new material on the basis that, in the event error is demonstrated, it would assist to determine what the appropriate penalty should be. I also note that what might be described as the new material is merely confirmation of matters that were either before the Magistrate or obvious conclusions, such as the potential hardship to the appellant’s family if he were jailed and the loss of his employment in that event.
- [5]To succeed in this appeal, the appellant must demonstrate some “legal, factual or discretionary error” in the decision of the Magistrate: White v Commissioner of Police [2014] QCA 121 and Shambayati v Commissioner of Police [2013] QCA 57 at [23]. No legal or factual error is suggested by the appellant; therefore, it is a discretionary error which is said to form the ground of appeal.
- [6]The principles governing an appeal from the exercise of judicial discretion are well known, and can be found in House v R (1936) 55 CLR 499. The application of these principles to appellate proceedings under the Justices Act were explained by the Court of Appeal in Queensland in Teelow v Commissioner of Police (2009) 2 Qd R 489, at page 498, in the following terms:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court at first instance.”
- [7]In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. So, then, to succeed in demonstrating that a decision was unreasonable or plainly unjust:
”The applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.”
- [8]Citation: R v Jackson [2011] QCA 103 at paragraph 25.
- [9]With those principles in mind, the respective positions of the parties can be summarised in the following way. The appellant submits, the sentence imposed was unreasonable or plainly unjust as, when compared to other cited cases, the personal features of the appellant were such as to render any time in actual custody excessive. The respondent submitted that the seriousness of the appellant’s offending meant that the need for denunciation and general deterrence were the most significant factors in determining an appropriate sentence, and the appellant has not, against that background, demonstrated the sentence was beyond the allowable range.
- [10]The facts of the offence, as before the Magistrate and as agreed before me, were contained in an agreed statement of facts tendered before the Magistrate, supplemented by a disc that contained security footage of the incident, some photographs of the complainant’s injuries, and his victim impact statement. The following summary is drawn from the material that was before the Magistrate.
- [11]The complainant was part of a group of people who got into a slanging match with members of another group of people, of which Mr Gray was a member. This happened close to 3 am one morning in Ocean Street, Maroochydore, near a nightclub. Security personnel broke up that altercation. After what I consider to be an appreciable gap, without trying to put a precise time on it – it is clear from the video that there was an appreciable gap – the complainant was walking away across Ocean Street. He walked past and behind the appellant, Mr Gray, who was on the nightclub side of Ocean Street. The complainant had, shortly before he walked across the road, been addressed by a security guard, who was pointing a finger at him, or perhaps poking him in the chest, and appeared to be remonstrating with him. Significantly, though, as the complainant walked away, there was not any interaction between him and the appellant.
- [12]The complainant walked across the road toward a cab rank. The appellant walked, as well, in the same direction. As they were near each other, with the appellant behind the complainant, the appellant accelerated, over the last couple of steps, to close the distance between the two, and then struck the complainant a forceful blow to the back of his head. That caused the complainant and the appellant both to fall onto the roadway. The appellant thereupon got up, as the complainant was trying to get up, and kicked the complainant in the head, which, it seems it was accepted below, rendered the complainant unconscious.
- [13]Almost immediately afterwards, the appellant was tackled by security personnel and restrained. I pause to note that during the respondent’s submissions, it was suggested that the appellant only desisted in the assault because of the intervention of the security guard. I do not accept that. Events happened so quickly, and the intervention of the security was such that it is impossible to draw a safe conclusion either way, and one certainly would not conclude the appellant was going to continue the assault in those circumstances.
- [14]The complainant was left lying unconscious on the roadway, where he remained for three to five minutes. The appellant was immediately remorseful, expressing this by saying, “I fucked up.” Sometime later, when formally interviewed, the appellant referred to what he described as a verbal altercation, and said he had limited recollection of the events as a result of his consumption of alcohol, which was, as I will come to describe, something which was not a practice in which he would usually engage.
- [15]I have watched the video footage myself, and the impression I had was that the earlier scuffle had broken up, and there was no interaction at all between the appellant and the complainant as the complainant left to walk across the road, heading away from the appellant. The video shows, in my view, that the appellant moved in the same direction and, when close to the complainant, accelerated and struck a blow to the back of the complainant’s head. The complainant was clearly not aware before he was punched. The kick then came at a time when the complainant had been knocked to the ground by the force of the first blow, and while the complainant may not have then been unconscious, he was clearly unable to defend himself against the kick.
- [16]It was said before the Magistrate on behalf of the appellant that the offending was wholly uncharacteristic, as was demonstrated by the appellant’s lack of previous convictions and the references tendered on his behalf. So much may be accepted. The offending was said to be explained by the circumstance of the appellant’s unusual level of intoxication, he not being a regular drinker, and that in the context of his marriage break up. He was said to have been remorseful. He had written a letter of apology and proffered compensation of $2000. Also, he was in good employment and financially supported his estranged wife and their children, something which would be jeopardised by his incarceration.
- [17]The Magistrate proceeded to sentence and it is not suggested the Magistrate took into account any irrelevant matters or ignored any relevant matters. She summarised the relevant issues as follows: the conduct that was engaged in by the appellant was notoriously dangerous and to be deplored, though the appellant was, of course, to be sentenced for what he had actually done. His attack was very deliberate. The complainant was not walking around him and there was, in the Magistrate’s words “no continuing argy-bargy”. The appellant, as a mature man of 35 years, must have been aware of the dangerousness of his conduct. The Magistrate accepted the conduct was out of character, that he had no criminal history and that imprisonment would deprive his children of financial support while he was in custody. She observed that it was a matter of good luck the complainant did not suffer more severe consequences, though she noted by reference to the victim impact statement, the complainant had some days of headaches and had developed something of a phobia about going out.
- [18]She took into account the plea of guilty, which she considered, I think it is fair to say, as being a late plea, as well as his age and his antecedents. She referred to the need for a sentence that met the requirement for general deterrence, denunciation, as well as the appellant’s rehabilitation, acknowledging he had already taken significant steps toward that. Punishment and deterrence were, she considered, the more weighty factors in the exercise of the sentencing discretion, but she noted that Mr Gray, the appellant, had family support and is otherwise a hard-working member of the community.
- [19]The Magistrate also considered a number of cases suggested by the parties before her to be relevant, which are, in essence, the same cases that have been presented before me, to which I will come in a few moments.
- [20]I turn now to the contentions in the appeal. The appellant submitted that the requirement that the appellant serve time in actual custody rendered the sentence excessive in the relevant sense. The appellant’s primary position was that any custody was excessive or, in the alternative, that four months in custody was too long. He emphasised what he said was the “extreme brevity” of the assault. It is true that the actual blows took place very quickly, but that, in my view, ignores the seconds preceding the first blow, where the appellant can be seen walking behind the complainant, accelerating and delivering a forceful punch to the back of his head.
- [21]The appellant referred to what was described as taunting directed generally at the appellant’s group by the complainant and also, the complainant’s injuries as being minor. The appellant submitted that subjective features that indicate the sentence is excessive included the good character of the appellant, which is to be contrasted with many of the decisions to which the Magistrate and I have been referred. This, combined with his immediate remorse and his rehabilitation, including stopping drinking, shows insight and maturity. The appellant relied upon the potential family hardship that would be caused by his incarceration, while acknowledging that this could not be an overwhelming consideration.
- [22]In addressing the plea, it was explained that the plea was indicated, it seems, on the Wednesday prior to the trial being listed for last Monday, the 23rd, rather than the Friday, as was stated by the Magistrate. If that is an error, it does not seem to me to be an error of any significance. It is certainly not the case that the plea was as early as it might have been, whether it is proper to characterise it as a late plea or not is perhaps a question of semantics, but a plea in those circumstances is something to be taken into account but not, in my view, a matter which itself attracts special consideration.
- [23]In dealing with the cases that were before the Magistrate, the appellant referred first to R v Lude; R v Love [2007] QCA 319, emphasising the more serious features of that case, which include that it was an assault by two men acting in company and the assault itself could be described as being more protracted, and that undoubtedly is the case. The end result in Lude and Love were that Love, who had some previous convictions indicative of social misbehaviour, was imprisoned for nine months to be released after three months, and Lude was imprisoned for nine months, to be released after about seven weeks. He had no previous convictions. Significantly, both Lude and Love were, compared to the appellant, very young men and that has been, for many years, considered a substantially relevant factor in determining appropriate sentences, even for a sentence concerning an offence of violence.
- [24]The appellant referred to a decision of Judge Farr SC in the District Court of La Carta [2016] QDC 68. There, a sentence which was imposed at first instance of 12 months to be suspended after four months, was set aside and substituted with a sentence of nine months imprisonment, suspended after two months. Importantly, the sentence was set aside on the basis that the Magistrate had erred in impermissibly restricting himself when determining the appropriate sentence by a statement that Court of Appeal authority indicates the starting point is a period of actual imprisonment. So against that background, it fell to Judge Farr SC to resentence La Carta according to the ordinary principles of sentencing.
- [25]The conduct in La Carta was more serious. It involved multiple kicks and stomps to the body and to the head of the complainant, as is detailed in paragraph 19 of the decision. It is conduct, though, which commenced with wrestling between the complainant and the appellant, in that case, rather than as here, with a punch that occurred by surprise. The various decisions that were considered by Judge Farr SC in La Carta were said by him to support the proposition that a sentence of actual imprisonment was appropriate in that case, and his Honour, as I have mentioned, imposed there a sentence of nine months imprisonment, with a requirement the appellant serve some two months imprisonment.
- [26]Reference was also made to R v Ball [2012] QCA 51. More time was spent considering R v Hilton [2009] QCA 12 and the appellant sought to explain statements of principle found in Hilton at paragraphs 21 through to 23 by reference to the source cases, suggesting that they indicated the statements contained in Hilton are perhaps better understood as being applicable to more serious examples of the offence. That may be so to some extent, in that the cases of Yanner, which is [1999] QCA 515 and Jones [2003] QCA 474, from which the statements are drawn, involved violence of a somewhat different kind, but nevertheless, the statements of principle that were made in Hilton were supported by each member of the Court, to the effect that even in the case of a first offence where the offender has a good work history, and has been more cooperative with the administration of justice than the appellant has, there can still be sentences of imprisonment involving actual imprisonment imposed, having regard to the seriousness of the offending itself.
- [27]In paragraph 22 in Hilton, the following statement is to be found:
“While the Courts are slow to send an offender to prison for a short time, where the offender has not previously been sentenced to actual imprisonment, considerations of genuine personal deterrence will, generally speaking, overcome the reluctance in the case of a mature offender.”
- [28]And the significance of that, in my view, is that the appellant falls into the category of a mature offender whose conduct cannot be understood against a background of immaturity or inexperience.
- [29]The summary of the appellant’s position was, it appears to me, that it was excessive to require the appellant serve time in actual custody, given the subjective features, especially the evidence of good character and his remorse. The appellant also addressed a decision which I mentioned, of Ryan Patrick Day, which was a decision of Judge Robertson in this Court in March of last year, found as Day v Commissioner of Police [2017] QDC 77. In addressing Day, the appellant submitted that there was, in Day’s case, less scope for a conclusion that he was remorseful, pointing to his serious understatement of his criminality when interviewed by the police; the fact that the plea in Day was later than the plea in this case, coming on the morning of the trial, when the witnesses were already assembled; the fact that Day had failed to appear and been at large for a period of time before being dealt with; and perhaps most significantly, as is detailed in Day at paragraph 15, that Day, while of a similar age, did have previous convictions. It was said by Judge Robertson at [15] that Day had a number of entries for public nuisance, dangerous driving and disorderly conduct, one minor drug offence and one wilful exposure, for which he had received various fines. He was also said to have a minor New South Wales history for public nuisance offending and that is, of course, a point of distinction between Day and the present appellant.
- [30]The respondent submitted that this Court can only interfere if it is demonstrated that the sentence imposed by the Magistrate was unreasonable, plainly wrong or plainly unjust, in the sense that it was beyond a permissible exercise of the sentencing discretion. In addressing the facts, it was submitted for the respondent that the central theme was that at the time the complainant was assaulted, he was being shepherded away by security. There was no interaction at all with the appellant. The appellant approached and punched the back of the complainant’s head while he was unaware, and then kicked him.
- [31]It was submitted, in effect, that there could be no operative provocation for that conduct in those circumstances. It was accepted the injuries were, in relative terms, minor but the respondent emphasised the gratuitous nature of the violence in a public place, by a drunk and mature man. In those circumstances, it was said by the respondent to be clearly open to consider denunciation and general deterrence as being the most important factors to consider in sentence.
- [32]The respondent submitted that the Magistrate did not discount rehabilitation but accepted properly that it could not be the dominant consideration. Putting the question rhetorically, the respondent posed, can it be said that 12 months imprisonment, with a requirement to serve four months, is plainly wrong in the circumstances?
- [33]In addressing the cases, the respondent dealing with Lude and Love, accepted aspects were more serious, pointed out that it appeared, in that case, the violence stopped on the intervention of other cab drivers. The injuries were similar but the respondent emphasised the youth of the offenders in that case and submitted that at paragraph [17], support is found for the proposition that even with the youth of the offenders, and other relevant factors, actual imprisonment was not outside of the range.
- [34]In La Carta, it was submitted that that was different because La Carta stopped of his own accord, but I do not agree that that is a relative point of distinction, in that La Carta’s violence was very substantial and he must have realised that it was time to stop after several kicks and stomps. Also, it is not a point of difference because I do not conclude that the appellant only stopped the assault because of the intervention by the security. It was different, though, in La Carta, as I have said, it started out as a wrestle between two equals and not as a surprise punch.
- [35]The respondent addressed Hilton and submitted the statement of principles to which reference has been made were not as narrow as the appellant suggested and referred to the fact that the complainant and the appellant had already had some dealing with each other, there being some bad blood between them. I accept that that is a matter which can cut both ways, in that if it is viewed that violence is used in a retributive way, out of some ill-feeling, that might be a serious aggravating circumstance. But in this instance, I do not see any significant difference to be drawn between the fact that the complainant and the appellant in Hilton knew each other, compared to the seriousness of striking a stranger in a public place, without the stranger being aware of what is going on.
- [36]Hilton does not seem to me to be especially useful, so far as the actual penalty imposed because there are some significant differences in the facts. Jones I mention in passing. The injuries there were more serious but there was a complete recovery and I do not find Jones particularly helpful in the circumstances. The summary of the Crown’s submission was that the appellant, bearing the onus of demonstrating that the sentence was unreasonable or plainly unjust, the appellant has not been able to do so by reference to the decided cases.
- [37]The appellant’s conduct can, in my view, properly be described as wholly unjustified violence inflicted on a person who was not expecting it. It occurred in public and while the defendant was substantially affected by alcohol. It is, in my view, particularly aggravating that he then kicked the complainant in the head after delivering the first blow. The Magistrate was right to view the offence as a particularly serious example and, in those circumstances, it is appropriate to give primacy to the need to denounce and deter such conduct.
- [38]It is clear that the Magistrate arrived at a 12 month sentence as an appropriate head sentence, and then made allowance for the appellant’s personal circumstances and the plea, which was not an early plea, by suspending the sentence at one-third of that 12 month period and it cannot, in my view, be said the Magistrate erred in so doing.
- [39]In coming to the conclusion that I have, I have had regard to the principles in section 9(3) of the Penalties and Sentences Act, as they apply to offences involving violence, and I have also considered the cases referred to me by counsel, as I have discussed. As well, I have considered the decision of Day v Commissioner of Police, which I have found helpful inasmuch as the conduct there had some similarities to the present case.
- [40]There, some young men were drinking at a night club here in Maroochydore. The defendant and his friends were engaged in horseplay on the dancefloor. The friend was doing handstands, in the course of which, his wallet fell out. It followed that the complainant, who was nearby, saw the wallet, picked it up in order to return it to the friend. The defendant, upon seeing this, thought the complainant was stealing the wallet, picked up the victim around the waist, speared him head first into the dance floor, causing the victim pain and discomfort to the head and left wrist. The defendant then stepped toward the victim, who was lying on the floor, and kicked him to the left side of the face.
- [41]As a result of the assault, there was a fractured jaw, a sprained left wrist and bruising and swelling to the head. So I accept the injuries there were arguably somewhat worse than in the present case, involving a fracture to the jaw. The defendant in Day significantly understated his criminality and put before the Magistrate a version that he acted on a mistaken but not unreasonable belief that the victim was trying to steal the wallet.
- [42]The antecedents, as I have mentioned, were broadly similar but Day had previous convictions and the appellant in this case, of course, has the benefit of not having previously come to the adverse attention of the Courts in any circumstances. The victim in Day was said to have made a complete recovery from his injuries and, again, it was said there that the broken jaw was not as bad as the injuries that are sometimes seen in similar cases.
- [43]Judge Robertson, in dealing with the appeal, described the violence in Day’s case as being entirely unprovoked and considered that the description of gratuitous was appropriate. He said that the term of 18 months imprisonment imposed upon Day was one which was high but was within the range mandated by the authorities and, of course, that was one which was ameliorated by ordering release after serving one-third of the sentence. His Honour did allow the appeal by reason of the compensation order that was also made, which was an order for compensation in the amount of some $20,000, which his Honour set aside. But as I read his Honour’s decision, it was only that aspect of the order which was excessive and his Honour was satisfied that 18 months imprisonment to serve six months was appropriate in the circumstances of Day’s case.
- [44]Of course, no two cases are exactly alike and that is one of the reasons why Courts talk of sentence ranges. As has been acknowledged many times, there is no single sentence that is the “correct” sentence in a given case. The appellant in this case can, as I have said, succeed only by demonstrating that the sentence imposed appears so out of line with other cases as to be outside of the range of sentences indicated by those cases. While a more lenient sentence could have been imposed by the Magistrate, I am not persuaded that, in these circumstances, requiring the appellant to serve four months or one-third of the head sentence of 12 months, was an error.
- [45]I note, as well, that the compensation order in this case does not suggest error for the following reasons: it was relatively modest, the default period is three weeks and it reflects an amount which was proffered by the appellant in the course of the proceedings before the Magistrate. For those reasons, the order of the Court will be that the appeal is dismissed.
- [46]Gentlemen, I will do my best to revise those remarks as quick as I can. It will be next week some time, of course, but as soon as I have got them done, they can be provided to you so that you can consider them.
- [47]MR CUMMINGS: Thank you, your Honour.
- [48]MR CARROLL: Thank you, your Honour.
- [49]HIS HONOUR: Any further orders necessary?
- [50]MR CUMMINGS: No, thank you.
- [51]HIS HONOUR: No. All right. Adjourn now.