Dempsey v Commissioner of Police [2010] QDC 155

DISTRICT COURT OF QUEENSLAND CITATION: Dempsey v Commissioner of Police [2010] QDC 155 PARTIES: JOSEPH WAYNE DEMPSEY Appellant v. COMMISSIONER OF POLICE Respondent FILE NO/S: 31/09 DIVISION: Appellate PROCEEDING: Appeal against sentence. ORIGINATING COURT: Magistrates Court, Mt Isa DELIVERED ON: 26 February 2010 DELIVERED AT: Mt Isa HEARING DATE: 26 February 2010 JUDGE: Dearden DCJ ORDER: Appeal dismissed. CATCHWORDS: APPEAL – assault occasioning bodily harm - whether the sentence imposed by the learned magistrate was ‘manifestly excessive’ LEGISLATION: Penalties and Sentences Act 1992 (Qld) ss. 9(3) and 9(4). CASES: House v The King (1936) 55 CLR 499 Hughes v Hopwood [1950] QWN 21 R v Morse (1979) 23 SASR 98. Counsel W. Hunter (Solicitor) for the appellant K. Wakefield (Solicitor) for the respondent SOLICITORS: Warren Hunter Solicitor for the appellant Director of Public Prosecutions for the respondent -- 1 of 9 -- 2 [1] HIS HONOUR: This is the decision in the matter of Joseph Wayne Dempsey, appellant, and David May, respondent. Introduction [2] The appellant Joseph Dempsey seeks to appeal to this Court in respect of a sentence of two years probation imposed by the learned Magistrate at Mount Isa on 6 October 2009 in respect of one charge of assault occasioning bodily harm on the ground that the sentence is, "manifestly excessive". Facts [3] The Prosecutor on the sentence on 6 October 2009 outlined the facts as follows. (Sentencing submissions pp 1-L45-1-3-L31) "The complainant in this matter is Darren Caulton. On the 16th of July 2008 the complainant was attending a rugby league match at the Alex Inch oval which is situated on Thompson Road Mount Isa in the company of his wife and children. At the conclusion of the match the complainant has left the grounds, crossing Thompson Road directly opposite the entry gates. The complainant states that as he was walking with his wife and children to the car he was approached by four persons, one of whom is the defendant. -- 2 of 9 -- 3 [4] The complainant states that the defendant has then approached him and verbally challenged him in relation to a long running family feud. The complainant has provided a statement which states that a male person, not this defendant, has swung a punch at him. The complainant states that the defendant has then punched him once in the jaw. He stated that he felt immediate, sharp and severe pain to the left side of his jaw. The complainant states that he lost balance and stumbled backwards as a result of the blow. The complainant then sought treatment at the Mount Isa Base Hospital. Treatment revealed that the complainant's jaw was in fact fractured and as a result the complainant was conveyed to the Townsville Hospital for further treatment. [5] Tuesday the 25th of November 2008, as a result of the investigation, police located and invited the defendant to participate in an electronic record of interview. During the record of interview the defendant made admissions to being at the football match, that he later approached the complainant after the match. The defendant stated that his intention was to question the complainant as to his involvement in a long running family feud and that when he approached the complainant, the complainant has immediately adopted a fighting stance and the complainant has thrown a punch towards the -- 3 of 9 -- 4 defendant. The defendant states in his interview that he dodged the punch thrown by the complainant, and has then thrown a single punch with a closed right fist, striking the complainant on the mouth area. [6] The defendant stated that he used a moderate amount of force to strike the complainant and that he did not think that he had injured the complainant in any way. The defendant stated that as the complainant had swung first he felt justified in punching the complainant in the manner that he did." [7] The appellant has a relatively minor criminal history with no previous convictions for offences of violence. [8] Mr Hunter, who appeared on the sentence below, and appears on this appeal, outlined to the learned Magistrate a lengthy history of a family feud between the appellant's family and the complainant's family. [9] Mr Hunter then set out his client's instructions as to the offence (sentencing submissions p.1-4LL2-23) "My client has instructed me that he initially went up to talk to this bloke, Mr Caulton, that's all his intention was. There was a very short talk and then the punch itself. The facts themselves indicate that a witness - -- 4 of 9 -- 5 the witness Darren Caulton - says that, 'I noticed Joe Dempsey threw a right clenched fist in the direction of my face and hit me on the point of my chin, slightly to the left side of my chin.' The witness [indistinct] [sic] provided a statement saying that she could see both Darren and Joe as they were standing side by side, and she saw Joe throw a punch to the left side of his face. Joe appeared to be still angry and arguing with Darren although it wasn't a one-sided incident by any stretch of the imagination. [10] Darren Caulton then goes on to say, 'For reasons I do not understand Joe Dempsey put his hand out, his right hand, in an attempt to shake my hand. I remember he said, 'I'm sorry, I shouldn't have hit you, I should have come around and spoken to you.' Joe Dempsey then started to cry, I put my hand out and shook his hand. So immediately following the blow came the apology and certainly this was a one punch and nothing further." [11] Mr Hunter stressed the appellant's personal circumstances and his lack of intention to cause injury, in submitting, "a short period of probation or even a good behaviour bond" (sentencing submissions p.1-5). -- 5 of 9 -- 6 [12] The learned Magistrate, in sentencing the appellant, acknowledged the following:- (1) An early plea of guilty to an amended charge [I note that the appellant was originally facing committal proceedings on a grievous bodily harm charge, downgraded on the day of sentence to an assault occasioning bodily harm charge, which was within the jurisdiction of the learned Magistrate]. (2) Admissions to police; (3) Cooperation with the administration of justice by saving the cost of a hearing, and not requiring witnesses to give evidence; (4) The appellant's immediate expression of remorse and an offered apology after the blow was struck. [13] However the learned Magistrate made the following observation in respect of the blow by the appellant to the complainant:- "You say that you thought that you delivered the blow with a moderate force. I don't accept that. It appears to me that you realised what you did, it seems to me that you realised immediately afterwards the amount of force you did use, and that realisation is reflected in the immediate remorse and the offer of the apology which you made to the complainant immediately afterwards." (Decision pp2-3LL48-56,LL1-3). -- 6 of 9 -- 7 Issue [14] The issue then on this appeal is whether in the light of these circumstances the penalty imposed (to which I note the appellant consented) of two years probation, with a conviction recorded was "manifestly excessive". [15] Mr Hunter, appearing on the appeal, submits (relevantly) that the Magistrate placed too much weight on deterrence as against an appropriate period for rehabilitation and argued that a period of nine to 12 months probation should have been imposed (in his written submissions) although he conceded orally that a period of up to 18 months probation was in range. [16] Ms Wakefield who appears in this Court on behalf of the respondent on the appeal, relies on long established authority, including House v The King (1936) 55 CLR 499, Hughes v Hopwood [1950] QWN 21 and R v Morse (1979) 23 SASR 98, for the proposition that it is not sufficient that an appellant Court would, in the sentencing Court's shoes, have imposed a different sentence, but rather whether there was an error in the exercise of the sentencing Court's discretion. In other words, was the -- 7 of 9 -- 8 sentence imposed "beyond the acceptable scope of judicial discretion?" (R v Morse (1979) 23 SASR 98, per King CJ at 100). [17] With the greatest respect for the appellant's submissions, given the learned Magistrate's observations in respect of the blow (which I have quoted above); given the actual consequences of the blow (a fractured jaw); and given the range of sentences available to the learned Magistrate, who specifically took into account (as he was required to) the provisions of the Penalties and Sentences Act s.9(3) and (4), which remove the principle of prison as a sentence of last resort for an offence of violence; it seems to me that the sentence of the learned Magistrate was decidedly lenient in the circumstances. [18] It follows that not only do I consider that the learned Magistrate's sentence was not "manifestly excessive", but rather that there were other more onerous penalties available to the learned Magistrate which could in my view quite properly have been imposed in the proper exercise of the Magistrate's sentencing discretion. [19] In my view, the learned Magistrate gave substantial and appropriate weight to the appellant's mitigating circumstances, comprehensively placed before the Court by -- 8 of 9 -- 9 Mr Hunter in his very thorough submissions on the original sentence, and the result was in my view a balanced, compassionate and lenient sentence which was not, on any view of it, manifestly excessive. Order [20] Appeal dismissed. ... [21] HIS HONOUR: I accept Mr Hunter's submission, there is no power to grant costs on appeal from a Magistrate on an indictable offence pursuant to section 232(4), accordingly there is no order as to costs. -- 9 of 9 --