Brown v Maywee [1996] QCA 422

1 [1996] QCA 422 COURT OF APPEAL PINCUS JA DOWSETT J FRYBERG J CA No 297 of 1996 J BROWN Respondent and SHANNON EDWARD MAYWEE Appellant BRISBANE ..DATE 10/09/96 JUDGMENT -- 1 of 7 -- 2 PINCUS JA: Mr Justice Dowsett will deliver the first judgment. DOWSETT J: The applicant is 17 years of age, having been born on 3 January 1979. On 5 July 1996 he was convicted of one count of assault occasioning bodily harm and at the same time, of one offence of contravention of a Domestic Violence order. We are presently concerned with an appeal in respect of the first count. The offence arose out of an incident which occurred on 4 July 1996 in which he assaulted his de facto wife. The evidence indicates that he had been drinking and was probably substantially affected by liquor at the relevant time. We are told that when he got home he woke up the complainant and started arguing with her. He then started to smash property and assaulted her by punching her in the face and possibly hitting her on the legs with an iron bar, although the allegation of the use of an iron bar was not part of the offence as charged. She suffered no injuries to the legs and perhaps that allegation should be treated with considerable skepticism. As a result of the attack, the complainant suffered severe swelling to the entire left-hand side of her face, a bruised and bloodied mouth, she lost a tooth and there was at the time of sentence, a suspected fracture to the left cheek bone. It can be seen that the assault was a serious one and as is implied in what I have already said, it occurred at a time at which he was subject to a Domestic Violence order restraining him from offering violence to his de facto wife. He was, of course, young and had no previous convictions. He pleaded guilty immediately after the offence and is obviously a person who needs guidance and help in dealing with both his drinking problem and his inclination towards violence when -- 2 of 7 -- 100996 D.1 T 8/KHW M/T COA 216/96 JUDGMENT 3 affected by liquor. The principal factors, in my view, which should have influenced the sentencing Court were, on the one hand, his age and the absence of any previous convictions, and on the other, the seriousness of the assault, the need to protect women in matrimonial relationships and the fact of the existence of the Domestic Violence order. Having regard only to the circumstances of the offence and the antecedents of the applicant I would have been inclined to think that the Magistrate's order was substantially the order which I would have made. Firstly, it demonstrates the seriousness of the offence and the breach of the Domestic Violence order by imposing a significant period of imprisonment. Secondly, it recognises the special needs of the applicant by making provision for an extensive period of supervision designed, no doubt, to facilitate his rehabilitation. However, in all of this there is no recognition of the early plea. The Magistrate in his reasons referred to that matter but in the circumstances I am unpersuaded that appropriate weight has been given to that issue. The early plea not only saved substantial resources, but, of course, it should also be taken, in my view, as evidence of remorse. In the circumstances, I would be inclined to grant the application for leave to appeal, to set aside the sentence and to substitute therefor a sentence of imprisonment for a period of three months coupled with the order for three years probation which has already been made. -- 3 of 7 -- 100996 D.1 T 8/KHW M/T COA 216/96 JUDGMENT 4 I stress that the only area in which I consider that the sentencing discretion miscarried was in the area of giving appropriate weight to the early plea. PINCUS J: I have found this a difficult case but I have in the end come to the same conclusion as Mr Justice Dowsett has just mentioned. For my part, I regard the youth of the offender as a significant point in his favour and, were it not for the fact that he was subject to an order made under the Domestic Violence Family Protection Act at the time, it may be that no prison sentence would have been appropriate, despite the obvious necessity to protect his de facto wife and, indeed, women in general, from this sort of assault. In the result, I agree with the order which Mr Justice Dowsett proposes. I should add that there is in the record some possible uncertainty as to what the Magistrate has done; but it appears to me clear enough, in the end, that what he intended was to impose a sentence of six months imprisonment in respect of the matter with which Mr Justice Dowsett has dealt and a separate sentence in respect of the other offence which was before him. The latter is not the subject of any application today. FRYBERG J: I agree that the discretion of the Stipendiary Magistrate miscarried in so far as he has failed to give appropriate attention to the early plea of guilty. It also seems to me that the Stipendiary Magistrate ought to have required the preparation of a presentence report. Given that -- 4 of 7 -- 100996 D.1 T 8/KHW M/T COA 216/96 JUDGMENT 5 there has been a miscarriage of his discretion it is unnecessary for me to decide whether the mere failure to order a presentence report by itself would amount to a miscarriage of the sentencing process sufficient to enliven the intervention of this Court. The fact that the sentencing process has miscarried in this way means that this Court must now take it upon itself to fix what is an appropriate sentence. In my view, the Court is not in a position to do that on the material presently available to it. Neither the Prosecution nor the applicant's advisers have made the slightest attempt to put before us any material in addition to what was before the Stipendiary Magistrate. That material reveals that the applicant is a youth of 17 years of age who at the time of the offence was said to be living in a de facto matrimonial relationship, itself a highly unusual situation in ordinary community terms. Perhaps that unusual feature may be explained by cultural factors where it is not difficult to infer that the applicant is of Aboriginal or Islander descent. It appears that he lived at Yarrabah; other circumstances may also lead to that conclusion. In my view, the absence of a presentence report together with the absence of any information on factors such as the nature of the community in which the applicant was dwelling, the impact of the sentences which are proposed on him in relation to that community, the efficacy of probation orders in relation to that part of North Queensland, the availability of alternatives and their effect on a person such as the applicant and the various other matters which would derive from his cultural background and to a lesser extent from his age in relation to that background make it quite impossible for this Court to proceed to sentence. -- 5 of 7 -- 100996 D.1 T 8/KHW M/T COA 216/96 JUDGMENT 6 It seems to me that there is an obligation on those who bring matters before this Court to provide that sort of information, but there is an even greater obligation, in my view, to provide the sentencing Magistrate with that sort of information. It is true that he may be expected to have knowledge of his community and that a lot more may be assumed to be within his knowledge than could be assumed to be within our knowledge. However, unless the view is to be taken that we continue to send people of Aboriginal descent to gaol for want of a better alternative it seems to me that the provision of such information is vital. I would take the view that sentencing should not proceed in the absence of that information. Consequently, I would order that the appeal be adjourned to a date to be fixed to allow such information to be provided. ... PINCUS JA: The order of the Court will be the appeal is allowed. The sentence imposed in respect of the offence of assault occasioning bodily harm is varied by reducing the term of imprisonment ordered from six months to three months. Otherwise the order made by the learned Magistrate in respect of that offence is confirmed. A warrant will issue for his arrest to lie on the Registry until 5.00 p.m. Monday. -- 6 of 7 -- 100996 D.1 T 8/KHW M/T COA 216/96 JUDGMENT 7 Those are the orders. ----- -- 7 of 7 --