Damien Luke Kent v Queensland Police Service [2012] QDC 376

1 The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Email: [email protected] [2012] QDC 376 DISTRICT COURT APPELLATE JURISDICTION JUDGE BAULCH SC Appeal No 284 of 2012 DAMIEN LUKE KENT Appellant and QUEENSLAND POLICE SERVICE Respondent TOWNSVILLE ..DATE 14/12/2012 JUDGMENT -- 1 of 4 -- 2 JUDGMENT HIS HONOUR: The appellant complains that a sentence of 15 months' imprisonment imposed on him in the Magistrates Court at Townsville was manifestly excessive. It was imposed in respect of an offence of assault occasioning bodily harm which occurred in the victim's place of residence. The assault was a one punch assault. It caused a raised lump on the victim's forehead, a bleeding nose and a small cut to the left side of the face. The appellant complains that the Magistrate's sentencing discretion miscarried because he gave excessive weight to the fact that it occurred in the victim's home and allowed that circumstance to obscure the fact that the offence was otherwise one at the lower end of the range of seriousness in respect of such offending. It is noted that both prosecution and defence sought a significantly shorter term wholly suspended. While such submissions cannot bind the sentence, they do give a useful indication of how those who deal with regularly such matters view them in terms of their seriousness. Arriving at a range of what is an appropriate sentence in such a case is difficult where the facts vary so much. However, the cases to which I have been referred indicate that a broad range of sentences is appropriate in respect of such offending. In many cases wholly suspended terms or significantly shorter terms than that imposed here have been thought appropriate. While in view of the fact that the offence was committed in -- 2 of 4 -- 3 JUDGMENT the home and was deliberate, it was not a sustained attack and resulted in injury at what, I think, is the lower end of the range of injuries which can support a charge of assault occasioning bodily harm. One must approach appeals like this carefully, bearing in mind that error must be demonstrated, not just that my view is different, but it does seem to me that the repeated references to home invasion do indicate that the matter was given more weight than it should have been. In my view, a sentence of nine months' imprisonment would have been appropriate. Because the offender had been previously sentenced for such offending, I find no error in requiring that he serve a period of actual imprisonment. Is this then just a difference of opinion? On reflection I think that it is not. I do not see that a sentence in excess of 12 months' imprisonment could have been said to be within the range, having regard to the matters I have mentioned. In my view, the Magistrate did err in giving too much weight to the circumstance that the offence occurred in a home. Accordingly, I set aside the sentence imposed by the learned Magistrate. In its place, I order that a conviction be recorded, that the appellant be sentenced to nine months' imprisonment. Should I set a parole release date today? MR LYNHAM: Your Honour has two options, either setting a parole release date today or on my calculations, your Honour, he has served 128 days which encompasses the period, the 7th of August 2012 to today's date, the 14th of December 2012. So -- 3 of 4 -- 4 JUDGMENT you could also suspend it after 128 days, which would have the same effect. HIS HONOUR: Yes. Did you want to say anything about that, Ms Malouf? MS MALOUF: Your Honour, the Crown doesn't have a preference. HIS HONOUR: I order that the sentence of nine months' imprisonment be suspended after the appellant has served 128 days and that the operational period be a period of 12 months. MR LYNHAM: And could your Honour then declare 128 days as presentence custody from the 7th of August 2012 to the 14th of December 2012? HIS HONOUR: Yes. I declare that the period of 128 days between the 7th of August 2012 and the 14th of December 2012 be taken to be time served under the sentence I impose today. ----- -- 4 of 4 --