Brown v Queensland Police Service [2015] QDC 53

DISTRICT COURT OF QUEENSLAND CITATION: Brown v Queensland Police Service [2015] QDC 53 PARTIES: JASON THOMAS BROWN Appellant v QUEENSLAND POLICE SERVICE Respondent FILE NO/S: D31 of 2015 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court of Queensland at Southport DELIVERED ON: 26 February 2015 DELIVERED AT: Southport HEARING DATE: 11 February 2015 JUDGE: McGinness DCJ ORDER: The appeal is dismissed. CATCHWORDS: JUSTICES ACT 1886 – Section 222 Appeal – Appeal against sentence – whether sentence imposed was manifestly excessive – serious assault on person over 60 years of age - spitting and punching – whether magistrate erred in failing to take into account matters in mitigation – whether magistrate placed too much weight on Victim Impact Statement – whether magistrate failed to have regard to payment of compensation – whether magistrate failed to have regard to rehabilitation LEGISLATION: CASES: Justices Act 1886 (Qld), Section 222 Penalties and Sentences Act 1992 (Qld), Section 9 Tierney & Commissioner of Police [2011] QCA 327 R v Hooper; ex parte Cth DPP [2008] QCA 308 R & McMahon [2013] QCA 240 R v Jensen Ex-Parte Attorney General [1998] QCA 275 R v Singh [2006] QCA 71 R v King [2008] QCA 1 R v Barry [2007] QCA 48 R v Hamilton [2006] QCA 122 -- 1 of 14 -- 2 Niceforo v Fanning [2005] QDC 256 R v Charles [2013] QCA 362 The Queen v Taylor [1963] SCR 491 R v Hilton [2009] QCA 12 COUNSEL: J McNab for the appellant N Dumrow (Solicitor) for the respondent SOLICITORS: Brooke Winter Solicitors for the appellant Office of Director of Public Prosecutions for the respondent Introduction [1] The appellant pleaded guilty in the Magistrates Court at Southport on 23 January 2015 to one count of serious assault on a person over 60 years of age. The acting magistrate convicted and sentenced him to 12 months imprisonment and set a parole release date of 23 April 2015 (after serving 3 months imprisonment). He ordered compensation in the amount of $1,500.00, in default 15 days imprisonment, with 9 months to pay. The maximum penalty for serious assault of a person over 60 years is 7 years imprisonment. [2] The appellant appeals the sentence on the grounds that the acting magistrate placed too much weight on the Victim Impact Statement, did not have proper regard to the provisions of s 9 of the Penalties & Sentences Act 1992 (Qld), failed to have regard to the appellant’s steps to rehabilitate and failed to have sufficient regard to his payment of restitution (compensation) to the complainant. The appellant also submits the sentence imposed was manifestly excessive. The appellant submits he should have been sentenced to a term of imprisonment suspended forthwith or a term of imprisonment but released immediately on parole. Circumstances of the offending [3] The prosecution placed the following facts before the acting magistrate. The complainant, Mr Pearce, was a 61 year old male. At about 8.00am on 23 July 2013, he was involved in a minor road rage incident at the intersection of Ashmore Road and Upton Street, Bundall with a female (the appellant’s wife), who was the driver of a gold coloured vehicle. On the complainant’s version, the appellant’s wife had cut him off and as a result he gave her the finger. After the incident, the complainant attended work at the Harvey Norman store at Ashmore where he was employed as a security officer. At about 11:15am the appellant entered the store and approached the complainant. He asked if the complainant owned the blue Ford vehicle parked in the car park. The complainant told the appellant that he did. The appellant became aggressive and threatening towards the complainant in the store. The complainant persuaded the appellant to go outside, out of view of the customers, in an attempt to settle him down. During this time the appellant made threats to kill the complainant. Whilst outside the appellant spat into the complainant’s face. The complainant turned to walk away. As the complainant turned, the appellant punched him to the right eye causing pain and discomfort. The complainant was unable to see out of his right eye which was filling with blood. The complainant tried to block the appellant who continued to throw punches at the complainant. A female shop assistant exited the -- 2 of 14 -- 3 store and stepped in to assist the complainant. The appellant then left in a white van. The complainant did not say anything to provoke the attack and did not know the appellant. Injuries [4] The prosecution tendered a statement from the complainant’s medical practitioner Dr Wehipeihana. She examined the complainant on 23 July 2013. She detailed the complainant’s injuries as a laceration to the right eye requiring 5 sutures, bruising to the eye area and left elbow, and mild discomfort to the eye socket. Further relevant matters at sentence [5] The appellant was arrested and charged sometime after 15 September 2013. The prosecution sought an amount of compensation of $2,976.62 for medical receipts provided by the complainant and for pain and discomfort suffered by the complainant. [6] The appellant had one prior conviction for assault occasioning bodily harm which occurred on 21 February 2003. On that occasion, the appellant was involved in a similar incident. He returned home after work and found his wife distressed because a male driver blew his horn at her as she turned into the driveway of their home, with her 2 young daughters in the car. The appellant approached the driver and “there was a punch up”1. The appellant was placed on a recognisance to be of good behaviour for a period of 12 months. Victim Impact Statement [7] The complainant provided a Victim Impact Statement in which he outlined a summary of the physical and emotional impact he suffered. He listed his injuries as a laceration to his right eye; a chipped right cheek bone; injury to his teeth for which he required dental surgery; bruising to his left arm; tenderness to both arms, top and back of head and right jaw; anxiety and depression; ongoing pain due to injury to right eye. [8] As a result of the incident he was unable to work for some time and no longer works the same hours that he used to. (The medical records tendered record the complainant was back at work when he attended an appointment with his doctor on 29 July 2013). He had to undergo testing for HIV and other communicable diseases. He reported anxiety attacks in confrontational situations. Since the assault his doctor has prescribed strong painkillers and anti-depressant medication. He reported being less social than he was prior to the assault. His right eye weeps and is affected by glare. Appellant’s submissions at sentence [9] The appellant’s solicitor at the sentence hearing did not dispute the facts relied on by the prosecution, however he submitted the following matters were also relevant to sentence:- (a) The day of the offence was the 10th anniversary of the appellant’s wife’s older sister’s death. His wife had returned home that morning in the car crying and upset. She told the appellant a man cut her off on Ashmore Road and Upton Street, causing her to take evasive action with both children in the car. The 1 Details as reported by the appellant to Psychologist Ms Riggs at page 8, paragraph 7.27 -- 3 of 14 -- 4 driver then gave her the finger. She recognised the driver as the security guard at Harvey Norman. The appellant, when he heard this, became annoyed, especially because the children were in the car with his wife. The appellant needed to go to Mitre 10 to buy some tools. He decided to approach the security guard. He did not go to Harvey Norman with the intention of assaulting the complainant, rather he went there merely to talk to him. The appellant was upset and regretful that he had escalated the meeting in the manner he did; (b) The appellant had already paid the compensation sought by the complainant, which went some way to show he was remorseful; (c) Four character references tendered established his otherwise good character; (d) The appellant provided a letter of apology to the complainant and one to the Court which evidenced his genuine remorse; (e) There was no medical evidence to support the complainant’s claim of a chip to the cheekbone; (f) The appellant was aged 43 at the time of the offence. He is married with two children, a 13 year old and a 14 year old, one of whom suffers Type 1 Diabetes; (g) He financially provides for his family. He has worked for the past nine years as a sub-contractor for a company, fitting shower and fly screens. He also runs a smoke alarm business on the Gold Coast installing and testing smoke alarms for residential and commercial properties. The commercial properties include government buildings, therefore a conviction would adversely affect his prospects of securing government contracts; (h) He volunteers as a soccer coach to 13 and 14 year olds at Robina City Soccer Club and therefore holds a Blue Card which he is likely to lose; (i) His plea of guilty; (j) The contents of the psychological report provided by Ms Suzanne Riggs, a qualified clinical psychologist; (k) The appellant had undertaken counselling for suicidal ideation and anger management. Acting magistrate’s decision [10] The acting magistrate during sentencing submissions noted the appellant had not sought any help for his anger management issues after his conviction for assault in 2003. He noted the assault in 2003 also involved a “road rage” incident. He noted there was nothing in the psychological report that indicated the appellant was remorseful. The acting magistrate rejected Ms Riggs’ conclusion at para 16.5, page 11 of the report which states: “Mr Brown has a mild anger management problem as assessed and it is suggested that he may react with verbal attacks or nasty responses when angered, but it is unlikely that he uses other forms of aggression to express his anger. The current charges before the Court are not typical or habitual behaviour engaged in by Mr Brown. He was provoked by the situation in which he found himself, and he found himself in a situation because of the perceived threat to his family as a result of a road rage incident.” -- 4 of 14 -- 5 [11] The acting magistrate found Ms Riggs’ summation of the facts to be: “not the facts as it turned out. The facts were that the complainant gave a rude signal to the defendant’s wife three hours earlier. And this fellow decided to go along to a public place and have it out with this fellow and, again, it turned ugly. So I fail to see how this fellow hasn’t got an anger management problem. He hasn’t addressed it [indistinct] nowhere near addressing it.”2 [12] In his sentencing remarks, the acting magistrate said he took the following matters into account: (a) The material tendered, including the report provided by the psychologist; the references; the appellant’s letters of apology to the Court and the complainant; (b) The complainant’s Victim Impact Statement; the photographs of the injuries and doctor’s records; (c) The appellant’s prior conviction; (d) The age disparity between the complainant and the appellant being one of 18 years; (e) The fact the offence occurred in a public place where members of the public travelled to; (f) The nature of the offence was similar to the previous offence in 2003; (g) The serious nature of the offence which carries a maximum penalty of 7 years imprisonment; (h) The fact the appellant had paid some “restitution which goes to his credit”3; (i) The attack was vicious, gratuitous and unprovoked; (j) The need to apply the principles of general and personal deterrence because such behaviour will not be tolerated. The law relating to District Court appeals against sentence [13] An appeal from the Magistrates Court to the District Court is pursuant to s 222 of the Justices Act 1886 (Qld). It is by way of a re-hearing on the evidence given in the original proceedings and any new evidence adduced by leave. In order to succeed, an appellant must show some legal, factual or discretionary error.4 [14] McKenzie AJA discussed the principles to be applied in an appeal against sentence in R v Hooper; ex parte Cth DPP5: “The judgment is a discretionary one to which the principles in House v The King (1936) 55 CLR 499 at 504-5 apply. Where a judicial discretion is exercised, it can only be set aside if the judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the decision, mistakes the facts or does not take into account some material 2 Sentencing submissions Transcript 1, page 8, lines 15-40 3 Sentencing remarks Page 2 lines 25-27 4 Tierney & Commissioner of Police [2011] QCA 327 at para 26 5 [2008] QCA 308 at [26]. -- 5 of 14 -- 6 consideration. Also, in cases where it does not appear how the primary judge has reached the result embodied in the order, but upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been failure to properly exercise the discretion which the law reposes in the court of first instance and review the exercise of the discretion on the ground that a substantial wrong has occurred.” Grounds of appeal [15] The appellant’s notice of appeal states the appeal against sentence is on the basis the sentence imposed is manifestly excessive. The written outline of submissions and oral submissions identified a number of errors allegedly made by the acting magistrate which caused his sentencing discretion to miscarry. Compensation [16] The appellant first submits that that the acting magistrate erred by placing insufficient weight on the appellant’s payment of compensation in the sum of $2,976.62 prior to sentence, as evidence of remorse. [17] A line of authorities support the principle that the making of compensation may be relevant, in mitigation of sentence, as evidence of remorse.6 In oral submissions at the appeal hearing, the appellant submitted the magistrate did not have sufficient regard to the compensation. The acting magistrate specifically stated he had regard to the fact the applicant had paid compensation. He considered that the payment went to the appellant’s credit.7 I am not persuaded the he failed to have sufficient regard to the payment of compensation as a matter relevant to sentence. Psychologist Report [18] The appellant next submits that the acting magistrate erred by placing insufficient weight on matters in mitigation contained in the psychological report of Ms Suzanne Riggs, including the appellant’s difficult family background, his current employment situation, his current suicidal ideation and his steps to rehabilitate through participation in counselling. [19] The psychologist, Ms Riggs, confirmed the appellant had commenced counselling in November 2014. She reported that, initially, the counselling focused on the appellant’s suicidal ideation. However, Ms Riggs noted that counselling also focussed on the appellant’s anger issues and in particular on alternative ways of reducing his distress and learning how to relax. She concluded that the appellant was unlikely to re-offend. At paragraph 15 of her report she noted the appellant was reliable with his counselling and had participated well. She noted the appellant will need to engage in further sessions to achieve a more substantial result in his anger management. [20] Ms Riggs also thoroughly detailed the appellant’s family background and his current employment situation. She noted the appellant works as a tradesman and provides for his family, a wife and two children; that the appellant had worked since leaving school 6 R & McMahon [2013] QCA 240; R v Jensen Ex-Parte Attorney General [1998] QCA 275. 7 Sentencing remarks Page 2 lines 25-27. -- 6 of 14 -- 7 at an early age and that the appellant appeared to be an honest hard working man. She also noted he experiences ongoing stress in his life as a result of his upbringing. [21] I consider the acting magistrate had regard to Mr Brown’s family background and current employment situation. The acting magistrate concluded his sentencing remarks by stating he had considered the effect of a period of imprisonment on the appellant and his family, and therefore reduced the amount of time in custody by one month to reflect these circumstances.8 [22] One matter which has given me some concern is that the acting magistrate did not specifically state he had regard to the appellant’s remorse. At one point during sentencing submissions the acting magistrate commented: “He (the appellant) didn’t - hasn’t sought any help at all for his anger management issue, and I certainly accept what the prosecutor has had to say. There’s certainly nothing on the report that indicates any remorse about what he did.”9 [23] Of course, a comment made by a court during the course of sentencing submissions is not necessarily decisive of the final view a judicial officer may reach before he or she formally imposes sentence. It is therefore difficult to rely on passages, such as the one above, in isolation, in order to demonstrate some error in sentencing. The acting magistrate, when he came to formally sentence the appellant, stated he had regard to all the matters which were evidence of the appellant’s remorse. [24] I consider the appellant’s attendance at counselling and the psychologist’s comments that he had been a reliable participant were certainly matters of relevance in the sentencing process. However, it is also relevant that counselling had only commenced in November 2014. As the acting magistrate noted, there was no evidence the appellant had undertaken any counselling prior to this, particularly in circumstances where he had previously offended in a similarly violent manner in 2003. I note the present offence was committed in July 2013 and the appellant did not commence counselling until after he attended Ms Riggs for the purposes of her providing a Court Report to assist in sentencing. He attended on two interviews for the purposes of a Court Report on 30 October 2014 and on 14 November 2014. He subsequently attended counselling regarding his offending behaviour on 27 November 2014, 18 December 2015, 9 January 2015 and 19 January 2015. [25] Although the appellant attended counselling for a relatively brief period, the appellant was participating well according the psychologist. Section 9(3)(g) of the Penalties and Sentences Act 1992 requires the court to have regard to any attempted rehabilitation by an offender. [26] The acting magistrate specifically stated, when he formally sentenced the appellant that he took into account all the material tendered in relation to matters in mitigation. He said he took into account the psychologist’s report (which included the information concerning the appellant’s counselling and steps to rehabilitate), the references and the appellant’s letters of apology to the Court and to the complainant.10 I am not persuaded the acting magistrate failed to have regard to the contents of the psychological report 8 Sentencing Decision, page 3, lines 5-7. 9 Sentencing Submissions page 8, lines 15 – 18. 10 Sentencing Decision, page 2, lines 1-5. -- 7 of 14 -- 8 including the brief period of counselling undertaken by the appellant, when determining sentence. [27] The appellant also submits the acting magistrate placed excessive weight on paragraph 16.5 of Ms Riggs’ report. During the sentencing submissions the acting magistrate quoted paragraph 16.5 of Ms Riggs’ report which formed part of her conclusions. Paragraph 16.5 states: “Mr Brown has a mild anger management problem as assessed and it is suggested that he may react with verbal attacks or nasty responses when angered, but it is unlikely that he uses other forms of aggression to express his anger. The current charges before the Court are not typical or habitual behaviour engaged in by Mr Brown. He was provoked by the situation in which he found himself, and he found himself in the situation because of the perceived threat to his family as a result of a road rage incident. [28] The acting magistrate appears to have formed a sceptical view of Ms Riggs’ conclusion that the appellant’s offending behaviour was not typical or habitual. The acting magistrate referred to the appellant’s prior conviction for assault in 2003. The acting magistrate said he failed to see how the appellant did not have an anger management problem, and that he had failed to address it or come near addressing it. [29] I accept that Ms Riggs was perhaps merely stating that the appellant was provoked on this occasion in a non-legal sense because of a perceived threat to his family as a result of the incident with the complainant earlier that day. However, I consider that the acting magistrate’s scepticism was understandable because of the appellant’s prior conviction, and because of the gap in time between the complainant’s altercation with the appellant’s wife and when the appellant attended Harvey Norman Store much later that morning. I do not consider the acting magistrate placed excessive weight on this aspect of Ms Riggs’ report. I also consider the appellant’s actions were a gross overreaction to the complainant’s actions towards his wife, and displayed an aggressive and angry response, similar to his offending in 2003. There is no merit in this ground of appeal. Rehabilitation [30] The appellant next contends that the acting magistrate did not have proper regard to the provisions of section 9 of the Penalties & Sentences Act 1992 (Qld) particularly section 9(1)(b) which states that one of the purposes of sentence is “to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated”. The appellant submits that the imposition of a term of three months actual imprisonment does not provide any condition that will assist the appellant to rehabilitate. [31] The appellant’s contention is inconsistent with the defence submissions at the sentence hearing. On that occasion, the appellant’s legal representative submitted a wholly suspended sentence was appropriate, a sentence that includes no conditions to assist in rehabilitation. When the acting magistrate did not accept this submission, the legal representative submitted that immediate parole may, in the alternative, be appropriate so that the appellant’s anger management issues could be addressed by way of supervision by Queensland Corrective Services. Although a term of 3 months actual -- 8 of 14 -- 9 imprisonment is unlikely to assist the appellant to rehabilitate, when released from custody he will remain on parole for 9 months. In my view, the acting magistrate provided appropriate conditions in the sentence he imposed to include supervision of the appellant when released from custody. There is no merit in this ground of appeal. The principles of deterrence and denunciation were also relevant sentencing considerations, having regard to the appellant’s prior conviction for a similar offence. Victim Impact Statement [32] The appellant next submits that the learned acting magistrate placed excessive weight on the Victim Impact Statement when the acting magistrate stated, “I take into account all those things, particularly the Victim Impact Statement.” (emphasis made by the Appellant during oral submissions). The appellant relied on Fryberg J’s statement in R v Singh11 that “sentencing Judges should be very careful before acting on assertions of fact made in a Victim Impact Statement. The purpose of those statements is primarily therapeutic”.12 [33] The ex tempore comments by Fryberg J in R v Singh have been clarified in subsequent Court of Appeal decisions. McMurdo P analysed the relevant legislation in R v Evans; R v Pearce13: “It follows from these provisions that sentencing courts may accept allegations of fact in Victim Impact Statements which are admitted or not challenged (s 132C(2) Evidence Act). If the allegation is not admitted or is challenged, the judicial officer may act on it if satisfied on the balance of probabilities it is true (s 132C(3)), the degree of satisfaction varying according to the consequences adverse to the prisoner of finding the allegation to be true (s 132C(4)).” [34] Apart from a reference by the complainant to a chipped bone in his Victim Impact Statement, which the acting magistrate did not have regard to, as conceded by the appellant’s counsel at the appeal hearing, I consider the acting magistrate’s sentencing remarks reflect he did no more than take into account the Victim Impact Statement as he was required to. Pursuant to sections 9(2)(b)(i) and 9(2)(d) of the Penalties and Sentences Act 1992, a court must have regard to the physical, mental or emotional harm done to a victim, and any damage, injury or loss caused by an offender and as one of many relevant factors. [35] In the circumstances I consider there is no substance to the appellant’s complaint regarding this issue. Manifestly Excessive The appellant finally submits that the sentence was manifestly excessive in light of other comparable sentence decisions. In other words, the sentence was “unreasonable or plainly unjust” such that it may be inferred “that in some way there has been a failure properly to exercise the discretion” which the law imposes in the court of first instance.14 The appellant relied on a number of comparable 11 [2006] QCA 71. 12 R v Singh [2006] QCA 71 at 8. 13 [2011] QCA 135 at [7]. 14 House v King (1936) 55 CLR 499 at 505, quoted in R v Ogden [2014] QCA 89. -- 9 of 14 -- 10 authorities to support this contention. The respondent relied of a number of decisions to submit the sentence was not manifestly excessive. Decisions of the Qld Court of Appeal [36] Both the appellant and the respondent relied on the case of R v King.15 In that case the applicant, a 30 year old man, pleaded guilty to one count of common assault and one count of serious assault on a police officer. The maximum penalty was 7 years imprisonment.16 The applicant was sentenced to 6 months imprisonment suspended after 3 months for an operational period of 2 years for the serious assault, and 2 months imprisonment on the common assault, both sentences to be served concurrently. The applicant had no prior criminal history. He had a subsequent conviction for obstructing a police officer. The offences arose when the appellant was escorted from a backpacker’s bar at Airlie Beach in July 2006. The common assault arose from a scuffle with one of the security officers. When police officers were summoned the appellant was placed in the rear of a police van and asked to move further inside to avoid the possibility of injury from the swinging door. Having been asked several times to do so the appellant gestured for one of the police officers to approach him. As the officer approached, the applicant spat blood and phlegm onto the officer’s face and into his mouth. A struggle ensued during which the applicant spat over the arm and shirt of the police officer on a number of other occasions. The police officer had to endure a 6 month wait to confirm he was not subject to any disease. The applicant was intoxicated at the time. A psychiatric report concluded the applicant suffered a “pathological bereavement disorder” following a family tragedy. The applicant provided a letter of apology to the police officer within a couple of days after the offence. He pleaded guilty and had no relevant prior criminal history, he was suffering from a depressive illness. The Court noted: “that those who treat a police officer in this way should ordinarily expect to be imprisoned, meaning actual imprisonment. Police officers carry out duties which are usually onerous and often dangerous. It is abhorrent that a police officer responsibly going about his or her business be subject of the indignity and risk of being spat on.”17 [37] The Court then reviewed a number of comparable decisions in considering whether the length of the imprisonment imposed on the applicant was manifestly excessive. de Jersey CJ stated at page 5 : “In cases like this, it is often the fact of imprisonment rather than the particular duration of the term imposed which secures the necessary deterrence. In light of the cases to which I have referred I consider that the penalty imposed on the applicant was manifestly excessive and should be reduced. The early pleas of guilty, the early written apology with the assurance of no communicable disease, the applicant’s previous unblemished character and his state of depression at the time, combined to warrant significant mitigation in this particular case.” 15 [2008] QCA 1. 16 The maximum penalty for serious assault on a police officer was recently increased to 10 years imprisonment. 17 R v King [2008] QCA 1 at 3. -- 10 of 14 -- 11 [38] He concluded that in the particular circumstances of King’s case the term of 6 months imprisonment was manifestly excessive and in lieu re-sentenced the applicant to 4 months imprisonment suspended after 2 months for an operational period of 2 years with a concurrent 2 months sentence to the main undisturbed. The other Members of the Court agreed, Holmes JA noting that imprisonment is not inevitable for an offence of assault by spitting on a police officer but that the case of King was a case in which a sentence involving actual custody was certainly open. She agreed with the Chief Justice that the sentence was disproportionate and did not sufficiently recognise the mitigating factors. [39] The offending in R v King is not as serious as in the present case because the applicant in King had no prior convictions, and the offences occurred on the spur of the moment. King also suffered a significant depressive illness at the time he offended. [40] In R v Hamilton18 the applicant pleaded guilty to 2 counts of serious assault upon a police officer. He was sentenced to 9 months imprisonment suspended after serving 3 months for an operational period of 12 months. The circumstances of the offence involved a disturbance outside a hotel. When police arrested the applicant’s younger brother, the applicant charged at police at full pace, swung a number of punches hitting an officer in the head and upper torso (count 1). The applicant then spat at another police officer, into his eyes and mouth, yelling “take that, you dirty dog. You cunts deserve everything you get” (count 2). The first police officer received pain to his head and upper body and a small cut to his forehead. The other police officer had to undergo a disease test. The applicant was aged 28 at the time of the offence. He had been in the army for less than 2 years. He was diagnosed with having major depressive and panic disorders and recommended for discharge. A psychologist who examined the applicant considered he was suffering from major depressive disorder and imprisonment would be detrimental to his recovery. The applicant had relevant prior convictions for obscene language and obstructing police in circumstances similar to the present offence. He had a prior good employment history. Justice Fryberg, with whom the other Members of the Court agreed, noted there was no evidence of remorse on the applicant’s part despite an assertion to the contrary by the psychologist. No apology to police officers was offered, either soon after the offence or during the sentence hearing. Dismissing the appeal Fryberg J noted the plea of guilty was timely, the applicant had a more significant criminal history than other offenders, and did not have to care for young children. He noted the applicant’s conduct had an element of premeditation. [41] The appellant relied on Edwards v Queensland Police19, an appeal against conviction to the District Court from the Toowoomba Magistrates Court where the appellant was sentenced to a $2000 fine. I consider without going into further detail the case is of no assistance in the present application because it was an appeal against conviction only. [42] Counsel for the appellant also referred to the case of Niceforo v Fanning20, an appeal against sentence to the District Court from a Magistrate’s decision. In that case the appellant was convicted by a Magistrate after trial of assault occasioning bodily harm. The circumstances involved an incident of road rage brought to an end when two police officers observed the appellant assaulting the complainant. The appellant 18 [2006] QCA 122. 19 [2014] QDC 38. 20 [2005] QDC 256. -- 11 of 14 -- 12 maintained he was given the finger by the complainant when the complainant overtook him in his motor vehicle. The appellant claimed the complainant at the following traffic stop rolled his vehicle back onto the appellant’s vehicle. Subsequently both vehicles pulled over to the side of the road. The appellant “launched a physical attack” on the complainant. The complainant suffered minor injuries requiring no treatment. The Magistrate sentenced him to 9 months imprisonment suspended after 3 months. The appellant obtained appeal bail after he had served 11 days in custody. The learned Judge hearing the appeal determined the Magistrate had failed to make a number of findings of fact, including whether the complainant had in fact provoked the physical attack by a threat to kill. Referring to a number of comparable Court of Appeal decisions the learned Judge stated the appellant had no prior criminal history, had a useful occupation and noted imprisonment may be financially ruinous to the appellant, albeit the appellant had no children. The learned Judge noted the appellant suffered some medical conditions including a prolapsed haemorrhoid. This case is of limited assistance because the learned Judge did not make a finding the sentence was manifestly excessive, rather he made a finding that, for various reasons, the sentencing exercise miscarried, therefore he had to sentence the appellant afresh, noting that the offender has been returned to the community on appeal bail. The Judge concluded the appellant was self-represented at the original hearing, had no understanding he should make submissions about his medical condition or other matters, and in the circumstances, the sentence warranted review. He resentenced the appellant to 6 months imprisonment to be served by way of an intensive correction order. That case can be distinguished from the present case because of it was a resentence where the appellant had been released back into the community on bail, the judge found the appellant may have been provoked by a threat to kill, and the appellant’s medical conditions, among other matters. [43] In R v Charles21 the appellant appealed against her conviction and sentence. The appeal against conviction was dismissed, however, the appeal against sentence was allowed. The appellant was convicted after trial of two counts of wilful damage and 1 count of unlawfully doing grievous bodily harm. She was sentenced on each count to 9 months imprisonment to be served by way of an intensive correction order. The offence involved a road rage incident. In the course of driving the appellant became involved in altercation with another driver. The appellant damaged the complainant’s spectacles. During the altercation the complainant’s left ring finger was bent backwards by the appellant causing ligament damage which had to be repaired by surgical procedure and was the subject of the second count of unlawfully doing grievous bodily harm. On appeal the Court found the original sentencing Judge did not have regard to the impact of the sentence upon the appellant’s eligibility to obtain an ASI Card, the appellant’s occupation being as a commercial pilot. The Court concluded that a number of errors occurred in the sentencing process because the primary judge was not properly informed about the provisions of the Aviation Transport Security Regulations. Counsel on the original sentence failed to submit a sentence of imprisonment should not be imposed and the primary Judge did not take the effect of the Aviation Transport Security Regulations into account when considering the appropriate sentence. The Court also noted the appellant had sustained some injuries at the hands of the complainant as a relevant sentencing consideration which was not taken into account. The Court indicated they found this case to be exceptional but for the attack on the appellant and the resulting injuries to the appellant and the impact of her ability to follow her occupation as a pilot, the sentence required 21 [2013] QCA 362. -- 12 of 14 -- 13 correction. The appellant was re-sentenced to 240 hours community service for the offence of grievous bodily harm. No mention was made in the judgment of whether a conviction was recorded. This case involved less serious behaviour by a person without prior convictions of a similar nature. [44] In R v Taylor22 the applicant pleaded guilty to assault occasioning bodily harm and was sentenced to 9 months imprisonment to be suspended after 3 months with an operational period of 3 years. The applicant was in a relationship with the complainant which ended on the day of the assault. The applicant was 23 years of age. After an argument developed, the applicant threw a pipe at the complainant and she responded by throwing coca cola at the applicant. He then pushed the complainant to the ground. When the complainant attempted to get away from his embrace, she bit the applicant on the ear. The applicant immediately punched the complainant in the face and she fell to the ground suffering a haematoma to the left side of the skull, a lump to her head, swelling to her nose, a conjunctive haemorrhage to the left eye and slightly reduced sensation over the left cheek. The sentencing Judge took into account the applicant’s use of his superior muscular development and that the punch was totally and completely disproportionate to what the complainant had done to him. The applicant pleaded guilty at an early stage. The applicant had a prior conviction for assaulting a 14 year old boy by striking him with a torch for which he was sentenced to 180 hours community service. The applicant was further convicted in March 1999 of offences arising out of his arrest for the subject assault and sentenced to 3 months imprisonment suspended forthwith for an operational period of 2 years and ordered to pay compensation of $3,000. The Court of Appeal reviewed a number of decisions and determined, after considering those authorities, there was no basis for interfering with the term of 9 months imprisonment, however, determined that, even allowing for the prior assault conviction committed by the applicant, his relatively young age and all the facts and circumstances surrounding the assault indicated the sentence was manifestly excessive by requiring the applicant to serve part of the term of imprisonment and determined the applicant should be given the opportunity to have the balance of his sentence suspended. The Court allowed the appeal to the extent of ordering the sentence be suspended forthwith. The appellant in the present case does not have the benefit of youth as a factor in mitigation. [45] The respondent relied upon the case of R v Hilton.23 The Applicant assaulted the complainant who was a passenger in a vehicle being driven through a bottle shop. The Applicant parked his vehicle blocking the complainant’s vehicle and got out and approached the complainant’s window, stating he wanted to fight him. The Applicant grabbed the complainant’s left arm and pulled it out of the window and back towards the rear passenger window, while yelling “I’m going to break your arm.” The complainant was pulled out of the car window but managed to grab a short round wooden pole which he used to hit the Applicant’s legs twice. The Applicant punched the complainant’s face and the complainant fell to the ground. The Applicant then punched the complainant in the head 6 or 7 times rendering him unconscious, before kicking him in the head three or four times. The complainant suffered a fractured cheekbone as well as assorted lacerations and bruising to the head and upper arm, as well as scarring to the face. 22 [2000] QCA 311. 23 [2009] QCA 12. -- 13 of 14 -- 14 [46] The Applicant was aged 35 at the time of the offence and 37 at sentence. He had a minor criminal history which included two prior assault convictions. He was the single father of his 8 year old son and it was submitted that a sentence involving actual custody would cause difficulties for the applicant’s elderly mother and dependant son. The applicant offered to pay $7,500 compensation to the complainant. The applicant was convicted on his own plea of guilty of one count of assault occasioning bodily harm. The plea of guilty was not regarded as early, as the matter had twice been listed for trial. The sentence imposed was 18 months imprisonment suspended after 6 months for an operational period of two years. The sentence was not disturbed on appeal. The question was whether imposition of actual custody was within scope of the proper exercise of the discretion of the learned sentencing Judge, in regards to this Justice Keane said:24 “generally speaking, an offender who is a mature adult should usually expect to serve a term of actual imprisonment for an offence involving deliberate, protracted and irrational inflicting of bodily harm upon another. The decision of this Court in R v Jones shows that this is so even in the case of a first offence where the offender has a good work history and has been more co-operative with the administration of justice than the Appellant in this case has been”. [47] The respondent concedes that the applicant’s offending in Hilton was far more serious than in the present case. Justice Keane’s comments must be viewed in light of the facts of that case. The respondent referred the court to a number of single district court judge decisions at first instance. I do not intend to refer to them in any detail, except to note that, as with the above decisions, they all turn on their own facts. Conclusions [48] In summary, a review of the decisions leads me to conclude the sentence imposed upon the appellant in the present case was not outside the appropriate range of sentences imposed for offences involving the level of violence perpetrated by the appellant, in a public place, and with the appellant’s prior criminal history, even having regard to those matters in his favour. The mitigating circumstances were sufficiently taken into account by the acting magistrate setting a parole release date after the appellant serves one quarter of the term of imprisonment. It was open to the acting magistrate to require the appellant to serve some of his sentence of imprisonment in actual custody. The sentence that was imposed cannot be said to be beyond the sound exercise of the sentencing discretion. [49] The appeal against sentence is dismissed. 24 At [21]. -- 14 of 14 --