Walley v The Commissioner of Police
[2021] QDC 279
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- Unreported Judgment
- Walley v The Commissioner of Police[2021] QDC 279
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Walley v The Commissioner of Police[2021] QDC 279
Walley v The Commissioner of Police[2021] QDC 279
DISTRICT COURT OF QUEENSLAND
CITATION: | Walley v The Commissioner of Police [2021] QDC 279 |
PARTIES: | JOSHUA PAUL WALLEY (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 10 of 2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court of Queensland |
DELIVERED ON: | 15 November 2021, ex tempore |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 15 November 2021 |
JUDGE: | Loury QC DCJ |
ORDER: | The appeal is dismissed |
COUNSEL: | E Lewsey for the appellant S Aldas for the respondent |
SOLICITORS: | YFS for the appellant The Office of the Director of Public Prosecutions for the respondent |
- [1]The appellant pleaded guilty to offences of assault occasioning bodily harm and breach of a bail condition in the Magistrates Court at Beenleigh on 21 April 2021. The learned Magistrate sentenced the appellant to six months imprisonment, wholly suspended for an operational period of 12 months, for the charge of assault occasioning bodily harm. In respect of the charge of breach of bail the appellant was convicted and not further punished.
The appeal
- [2]The appellant appeals his sentence pursuant to section 222 of the Justices Act 1886. Such an appeal is by way of rehearing on the evidence below, that is, a review of the record of proceedings below rather than a fresh hearing, together with any new evidence that I allow to be admitted. I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference to and placing a good deal of weight on the Magistrate’s view.[1] In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[2]
- [3]As the appellant’s appeal is against his sentence, that involves the exercise of a discretion. Accordingly the principles referred to in House v The King[3] are apposite. If it appears that some error has been made in the exercise of the Magistrate’s discretion because she has allowed irrelevant matters to affect her, mistaken the facts or failed to take into account some material consideration, then her decision should be reviewed and it is open for me to exercise the discretion afresh.
- [4]Appellate intervention on the basis that a sentence is manifestly excessive is not justified simply because another sentence might have been imposed. It is only if the court concludes that the sentence imposed falls outside the permissible range of sentences for the offender and the offence that intervention is warranted.[4]
- [5]The appellant appeals on the ground that the sentence imposed was manifestly excessive. To this end the appellant submits that the learned Magistrate erred in placing insufficient weight on the appellant’s young age; in considering that the range extended to a term of imprisonment and in placing too much weight on general and personal deterrence.
The circumstances of the offending
Breach of bail condition
- [6]The appellant failed to report to police on 10 December 2020 in accordance with his bail undertaking. His explanation was that he forgot to report.
Assault occasioning bodily harm
- [7]On 21 January 2021 the complainant was working as a security guard at a shopping centre. The complainant approached the appellant in the supermarket and asked him to wear a mask in accordance with the then mandatory government conditions and store policy. The appellant was abusive towards the complainant. He moved towards the complainant whilst yelling at him and punched him in the head. The complainant attempted to restrain the appellant. He punched the complainant in the head another two times and punched him multiple times in the body. The complainant sustained some redness and abrasions to his nose, chest, abdomen, back and shoulders. He also sustained bruising to his right arm.
- [8]The appellant declined to take part in a record of interview and was issued with a notice to appear.
The appellant’s antecedents
- [9]The appellant was 18 years of age at the time of the offending and at sentence. He had a criminal history in Queensland which contained one entry from November 2020 for possessing dangerous drugs, possessing drug utensils and two offences of breach of bail condition. He was sentenced to a recognisance of $350 to be of good behaviour for a period of three months. The appellant was subject to the recognisance when he committed the assault occasioning bodily harm. The learned Magistrate did not take any action with respect to the breach of the recognisance.
- [10]The appellant’s representative submitted that the appellant, for the year prior to the commission of the offences subject of this appeal, had been “virtually homeless”. The appellant had previously been residing with his father, having been removed by the Department of Child Safety from his mother’s care at the age of three. This arrangement came to an end due to violence by his father following an incident where his father choked him and tried to throw him off a balcony. The appellant then lived in tents in parks and “couch surfed”.
- [11]The appellant’s mother reached out to him, and he spent the last of his money on a plane ticket to Victoria to stay with her. That relationship did not last long, with his mother stealing from him to buy heroin. As at the time of sentence the appellant was living with a supportive family friend in Victoria. At the time of sentence, the appellant was completing unpaid work experience in a business which provided vehicle wraps. He was hoping to gain an apprenticeship.
- [12]The appellant travelled from Victoria to Queensland for the sentence and intended to return to Victoria shortly after being sentenced.
The decision of the learned Magistrate
- [13]The learned Magistrate took into account the appellant’s pleas of guilty. She rightly noted that the most serious matter was the assault occasioning bodily harm. She had regard to the protracted nature of the assault. She referred to the appellant’s youth, being 18 years of age, and the appellant’s personal circumstances relating to his upbringing and eventual homelessness, and accepted they were mitigating factors. The learned Magistrate had regard to the appellant’s support of family and friends in Victoria.
- [14]She referred to the need to impose a sentence which balanced prospcets of rehabilitation, given the appellant’s age, with a sentence that punished the appellant for the offence and addressed issues of personal and general deterrence.
- [15]The appellant’s representative had submitted that a fine with no conviction being recorded was the appropriate penalty. The learned Magistrate identified that the appellant had not worked, was not working and had no immediate prospects of working. She was of the view that whilst the appellant had some unpaid opportunities in Victoria, a fine was not an appropriate sentence. The learned Magistrate ultimately was of the view that issues of general and personal deterrence could not be adequately addressed through a fine. She recognised that, being an offence of violence, the principle that imprisonment was a sentence of last resort was displaced. She considered the sentencing range as extending from probation through to a term of imprisonment.
- [16]During the course of submissions it was made clear that the appellant would not consent to the making of a probation order because he intended to return to Victoria. The learned Magistrate considered that the only appropriate sentence was one of imprisonment.
- [17]The learned Magistrate considered that the mitigating factors, including the appellant’s lack of relevant prior history, youth and his personal circumstances, could be properly reflected in a wholly suspended sentence.
Consideration
- [18]The appellant’s contention is that the appropriate penalty was a fine with no conviction being recorded.
- [19]The learned Magistrate repeatedly made reference to the appellant’s young age in her remarks. She specifically took it into account in determining not to sentence the appellant to actual imprisonment. It cannot be said that she failed to take it into account or gave it insufficient weight. There is no error in her having failed to give the appellant’s youth sufficient weight. Nor is there any error in the learned Magistrate considering that the sentence needed to reflect the need for personal and general deterrence. The offence involved violence directed towards an innocent member of the community going about the performance of his work. His request of the appellant was perfectly acceptable and did not warrant in any way the violence response that he received. The appellant was subject to a recognisance at the time of the offending, only recently imposed, so was required to be of good behaviour. That he committed an offence whilst subject to that order demonstrates that the sentence needed to reflect the need for personal deterrence.
- [20]The learned Magistrate made clear that she did not consider a fine an appropriate penalty. Part of her reasoning was that the appellant had no capacity to pay a fine. So much was apparent from the fact that he did not have a job and had not had one for some time. Section 48 of the Penalties and Sentences Act 1992 required the learned Magistrate to take into account if she considered fining the appellant, his financial circumstances and the burden the payment would be to the appellant. Given he had no job the appellant did not have the capacity to pay a fine.
- [21]The appellant refers to the decision of NHR v The Commissioner of Police[5] as indicating that the sentencing range is one which includes a fine. That case involved an unprovoked act of violence at licensed premises. The appellant in that case was 20 years of age with no previous convictions. The offending involved a single blow. He was employed as an apprentice carpenter, had a good work history and volunteered as a lifeguard. On appeal the appellant was convicted and fined $1000 and ordered to pay a further $1000 in compensation. No conviction was recorded. The appellant in that case had many more mitigating features present than the appellant. The offence in my view was not as serious as what the appellant pleaded guilty to.
- [22]That decision only establishes that a substantial fine was within the exercise of the sentencing discretion and not that the sentence imposed on the appellant was not within the exercise of a sound sentencing discretion.
- [23]The appellant could have been sentenced to a community-based order however that required his consent prior to it being ordered. As the appellant was not willing to consent to such an order that limited the sentencing options available to the learned Magistrate.
- [24]The respondent has referred me to a number of decisions which establish that imprisonment including actual imprisonment is within the exercise of a sound sentencing discretion for offences of assault occasioning bodily harm even for youthful, first-time offenders who plead guilty.[6]
- [25]
“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.”
- [26]In R v Wilkins; ex parte A-G (Qld)[8] the then President stated, in reference to R v Lude; R v Love[9], that “Lude and Love recognises that actual imprisonment in that case was within the range of a proper exercise of the sentencing discretion”. She went on to say that Lude and Love was not authority for the proposition that young offenders with promising prospects of rehabilitation who plead guilty and are sentenced for offences of violence for the first time must serve a period of actual custody.
- [27]The respondent has referred me to the comments of Muir JA in R v Nagy in which he said “security officers are deserving of protection and that attacks on such officials merit severe punishment”.[10] I have additionally raised with the parties the decision of R v Kelley[11] in which a 23 year old appellant who inflicted a single punch to the face of a partner was sentenced to 3 months imprisonment suspended forthwith for a period of 2 years, his having spent 8 days in presentence custody prior to release. He had limited criminal history, with none at the time of the offence, a number of references spoke highly of him, and his conduct had been described as out of character.
- [28]These cases make clear that imprisonment was within range for the appellant’s offending. It was serious offending in a public place, committed against a man going about his job. The assault was protracted and involved gratuitous violence being used, although I note that the injuries were not particularly serious. Nonetheless, a sentence of imprisonment which did not require the appellant to serve any time in actual custody was within the exercise of a sound sentencing discretion.
- [29]Even if I found error, in exercising the sentencing discretion afresh I would not have imposed a different penalty. The appellant does not have the capacity to pay a fine.
- [30]The appeal is dismissed.
Footnotes
[1] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 at [43].
[2] McDonald v Queensland Police Service [2018] 2 Qd R 612.
[3] (1936) 55 CLR 499.
[4] R v Kentwell (2014) 313 ALR 451
[5] [2021] QDC 67
[6] See R v Pham & Ors [2012] QCA 169; R v Stone [2010] QCA 157; R v Lude; R v Love [2007] QCA 319; R v Kelley [2018] QCA 18
[7] [2006] QCA 092
[8] [2008] QCA 272
[9] [2007] QCA 319
[10] [2003] QCA 175
[11] [2018] QCA 18