A-G v Anders [1997] QCA 211

Court of Appeal (Qld)|1997-07-25|Before: Macrossan CJ, Byrne J, Fryberg J

JOINT REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND BYRNE J

The Attorney-General appeals against the respondent's sentence imposed on 29 November 1996 of imprisonment of one year to be served by way of intensive correction in the community and not in a prison. This order was made under s.112 of Part VI of the Penalties and Sentences Act 1992.

The respondent pleaded guilty to an offence of unlawful wounding on 28 October 1995. At that time the respondent was a twenty-two year old with prior criminal convictions for offences of occasioning bodily harm and an offence of unlawfully doing grievous bodily harm but he had not previously been sentenced to a prison term.

The circumstances of the present offence were these. The complainant was an eighteen year old male present with two female companions in a nightclub at the Gold Coast. The respondent approached them and asked at first one and then the other of the two women to dance with him. His requests were refused but he continued to press them and at one point used rather crude language. He was not previously acquainted with any of the group. As a result of his persistent attentions the women became upset and their male companion, the complainant, rose so that they might leave the premises.

The complainant offered no provocation to the respondent and directed no threat at him but the respondent suddenly reacted by picking up an empty glass and thrusting it into the complainant's cheek so that it smashed on impact. The complainant was knocked to the floor and the respondent ended up there also until they were separated by security staff. Police were summoned. The arrival of the police did not cause the respondent to moderate his behaviour and he became abusive declaring that he knew his rights, and that the complainant deserved what he got. He also said that he was free to behave as he wished because his father was a magistrate. The respondent appeared intoxicated. His abusive and obnoxious behaviour continued and he struggled with the police and attempted to escape as he was conveyed to the watchhouse. His behaviour made it necessary to detain him in a padded cell at the watchhouse. On the following morning when spoken to by the police, the respondent advanced a false account, saying that he had been dancing with a girl at the nightclub when the complainant approached and attacked him causing him to act solely in self-defence. He also alleged that the police had assaulted him. He then declined to be formally interviewed.

A description was given of the injuries received by the complainant. There were four facial lacerations. The first extended from a point in front of the left ear to midway between that ear and the left eye. This was five centimetres in length and partially severed the temporalis muscle. The wound required sixteen sutures. The second laceration, two centimetres in length, was at the back of the head and required six sutures. The third was a two centimetres long laceration on the left side of the neck requiring eight sutures. The fourth, again two centimetres in length, was situated above the left eye and required five sutures.

A further effect of the wound first described was to divide the frontal branch of the facial nerve. Without surgery it was possible that there could have been permanent numbness and inability to contract the brow or raise the eyebrow. However, we were told that the uncertainty concerning that consequence resulted in a grievous bodily harm charge not being pressed.

The complainant's injuries have so far had consequences of some seriousness. He is left with facial scarring which causes him embarrassment. He has become moody and when in public, apprehensive. He suffers from headaches, has trouble sleeping and is subject to recurring nightmares. He has lost considerable time from work. Areas of numbness and tenderness continue to affect different parts of his face.

The respondent's prior criminal behaviour clearly called to be taken into account in sentencing him.

He had been dealt with in the Magistrates Court in May 1993 on two charges of assault occasioning bodily harm which occurred in April 1993. The respondent was born on 29 June 1973 so that at the date of those offences he was nineteen years of age. The respondent had been at a party when he became upset with another person there and attacked him, striking him a number of blows about the head and then kicking and kneeing him after he had fallen to the ground. The victim was left unconscious. The respondent left the party but later returned and on being informed that a girl at the party in whom he had some interest had resolved, in view of his conduct, to have nothing more to do with him, he became angry and kicked another person present on the back of the head, causing him to fall, smashing a fishtank. No conviction was recorded for those two offences but the respondent was placed on probation for two years.

In the next month, June 1993, the respondent was dealt with for conduct occurring in that month which involved resisting police, using obscene language and using insulting language. On each charge his bail was forfeited.

The respondent has been involved in further serious conduct in November of 1992 but he was dealt with for it in the District Court only in July of 1994. He was then twenty-one years of age. The November 1992 conduct resulted in a conviction for grievous bodily harm. This time a conviction was recorded and community service of 240 hours was ordered to be performed. The judge sentencing on that occasion informed the respondent that it was a very serious matter he had to consider and were it not for the respondent's youth, he would have concluded that a sentence of imprisonment was called for. He added that the respondent should understand that if he ever did anything like it again he would go to prison.

The November 1992 conduct commenced with a workplace dispute over some soft drink. There had been ill-feeling between the respondent and another worker and on that occasion after some words about the drink, the respondent lost his temper, shouting threats. A drink can was thrown. The respondent then ran away but was initially pursued by the complainant. The respondent reacted by picking up a bottle and throwing it so that it struck the side of the complainant's head and smashed on impact. The complainant was incapacitated and had to be driven away from the scene with the respondent in pursuit armed with an iron bar and issuing death threats. On that occasion the victim suffered an eight centimetre laceration and a compound depressed fracture of the skull.

In dealing with the present matter, the learned sentencing judge declared that the respondent was fortunate to have escaped imprisonment in the past and at first glance nothing other than a sentence involving imprisonment would appear to be justified. However, the Judge referred to "psychiatric or psychological causes" for the respondent's behaviour and a reduced ability to handle conflict and anger. The Judge declared that in his opinion the community's interests could best be served by a sentence which permitted the respondent's problems to be treated promptly. He said he believed greater opportunities for treatment would be available if the respondent were not imprisoned. He also stated that the official position of the respondent's father (he was a magistrate) would be likely to cause imprisonment to amount to a more severe penalty than would be the case if it were imposed on someone without such a family connection. This remark was apparently prompted by a submission that the circumstance referred to was liable to result in some particular harassment of the respondent if he were placed in custody with other prisoners. It is not immediately obvious that the suggestion has substance. The sentencing judge went on to refer to the matter of R v Shedlock ex parte Attorney-General in the Court of Appeal, C.A. No. 60 of 1996, 31 May 1996 (unreported). Shedlock involved an Attorney's appeal against an intensive correction order accompanied by a substantial fine imposed for a very different kind of offence, one of dangerous driving causing grievous bodily harm while under the influence. The respondent there had a very bad traffic history and the Court, by a majority, responded to the Attorney-General's appeal simply by increasing the fine to $10,000 but allowing the intensive correction order to stay. Apart from the difficulty in making any helpful comparison between the different classes of offences involved, the decision in Shedlock ultimately depended upon the fact that the Court had to consider the extent to which it felt it appropriate to interfere with the decision below on an Attorney's appeal, two of the three judges involved indicating their belief that a term of imprisonment would have been appropriately ordered at first instance. The sentencing judge in the present case seems to have found in Shedlock some justification for his order which did not really exist.

The sentencing judge derived further encouragement for his approach from the report of a consultant psychiatrist but when examined, it does not provide the support the judge attributed to it. In identifying and describing the respondent's psychological imbalance, the report was not in terms which suggested an acceptable excuse for the respondent's behaviour. It will always be possible to provide psychological explanations for criminal behaviour and expert medical opinion can frequently offer a descriptive category for the mental state of a person to be sentenced but the question will still be the utility that it has for the Court's purposes. The consulting psychiatrist here in the course of his full report pointed to an attention deficit/hyperactivity syndrome which might have extended beyond adolescence and been aggravated by binge alcohol drinking and mild cannabis abuse. This, in his opinion, appeared to be consistent with a tendency to impulsive behaviour and outbursts of temper. So much, it might have been thought, appears strongly enough from the respondent's criminal record. The psychiatrist mentioned the desirability of the respondent's undertaking treatment for his conduct. In Shedlock, to which the judge referred, a very substantial fine was imposed, but in the present case, notwithstanding the assistance which the sentencing judge considered he could derive from Shedlock_,_ no fine at all was imposed, the judge saying simply that he was not satisfied that there was capacity to pay a fine. On the other hand, he did take into account, and it would appear gave undue weight to the fact that the complainant proposed to apply for compensation. On the hearing of the appeal we were informed that an order had been made for the payment of a sum as criminal injuries compensation but this intimation stopped short of suggesting that the assessed amount was or would be paid by the respondent. It would be wrong if an impression were to be given that offenders could buy their way out of the imposition of what would otherwise be the appropriate penalty.

In the end, it appears that the judge below gave too great an effect to some only of the relevant factors for consideration and indeed gave considerable weight to some which should not have been permitted to determine the outcome. The violent and aggressive conduct of which the respondent was guilty in the absence of any provocation or justification offered by the victim and the lack of apparent regret for what he had done, are features to be taken into account. In addition, there had to be proper effect given to the respondent's previous criminal conduct of a broadly similar kind and his unwillingness or inability to mend his ways notwithstanding the opportunities offered to him by the justice system. The court should now act upon the realisation that the time is past for continuing to offer particularly soft responses to the respondent in the hope that he would manage to redeem himself. The need from the community's point of view of offering an appropriate deterrent to conduct of this kind is a further matter which has to be recognised, even giving full effect to the respondent's relative youth and his plea of guilty. Notwithstanding the disinclination expressed in R v. Melano ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd.R 186 to permit undue interference with sentences on Attorney-General appeals, the fact is that the sentence imposed here is at odds with any approach to sentencing which could reasonably be justified. The result is that the court is obliged to interfere and after giving due credit for the plea and the time already served under the intensive correction order the appeal should be allowed, the sentence imposed below set aside and in lieu thereof it should be ordered that the respondent be imprisoned for eighteen months. There should be no recommendation for early consideration for parole. A warrant should issue for the apprehension of the respondent.

This is an appeal by the Attorney-General pursuant s. 669A of the Criminal Code against a sentence pronounced by a District Court. Upon such an appeal, this court may vary the sentence. Save in exceptional circumstances (which are not present in this case) such a variation is not justified "unless the sentencing judge has erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or excessiveness"[1].

The two grounds on which the appeal is based are both essentially dependent on the proposition that the sentence imposed was manifestly inadequate. In the District Court, the respondent was sentenced to imprisonment for one year and an intensive correction order was made. The effect of that order is that the respondent must serve the sentence by way of intensive correction in the community and not in a prison[2].

I have found the question whether this sentence was manifestly inadequate one of considerable difficulty. Ex hypothesi, the appellant cannot point to any error of principle in the sentencing process, nor to any relevant factor which was ignored or irrelevant factor which was considered. Instead, he must demonstrate that the sentence imposed was one which could not have been imposed by the proper exercise of the sentencing discretion. That requires an examination of the circumstances of the case.

Those circumstances are set out in the judgment of the Chief Justice and Byrne J. The Crown submitted that having regard to them and to what has been said and ordered in previous cases in this court, the top end of the range of sentences which might properly have been imposed in this case was imprisonment for about three years. I agree with that submission. After a good deal of anxious consideration, I have also come to the conclusion that in the circumstances, no sentence less than eighteen months imprisonment could be justified. It follows that in my judgment, the sentence imposed in the District Court was manifestly insufficient.

I have reached this conclusion despite the respondent's youth and immaturity. The impact of these factors is reduced by his criminal history. I have also taken into account the evidence that he exhibits a form of personality disorder. Having regard to its content and the circumstances in which it was obtained, I do not find it a powerful factor. I have taken into account the credit which must be allowed for a plea of guilty; but I do not think this factor is sufficient to support the sentence imposed below. I have taken into account the desirability of the respondent being able to work in the community in order to comply with a compensation order; but this must be weighed against the need to impose a sentence which will discourage the respondent and others from such offences as this[3]. I have not taken into account the allegation that he will suffer excessively in prison because he is the son of a magistrate. I am not satisfied as a matter of fact that he would suffer in prison more than anyone else. Finally, I have not accepted the contention that the respondent has shown remorse for his conduct. This seems to have been the view of the sentencing judge also. The plea of guilty was not such an early one as to indicate remorse.

Some reliance was placed on behalf of the respondent on the decision of the Court in R v Shedlock ex parte Attorney-General[4]. The circumstances which led to the order in that case were most unusual. Careful reading of the judgments of Williams and Byrne JJ reveals that the case will be useful for comparison purposes only in equally unusual circumstances.

The question now is, what order the Court should make. It is required to "impose such sentence as to the Court seems proper". The other members of the Court propose a sentence of 18 months imprisonment. By myself, I might have thought this rather too lenient. On the other hand, even with a longer head sentence I would have recommended that the respondent be eligible for release on parole after having served 9 months of the term, which would render the respondent eligible for parole at the same time as he would become eligible under the sentence proposed by my colleagues. Having regard to the respondent's youth and to possible expectations which he may have developed while this judgment has been reserved, I am not prepared to dissent from the order proposed.

It is I think a matter of some regret in this case that there is no mechanism by which the Court can ensure that the respondent has a powerful incentive for good behaviour after his release, and a support system to help him achieve such behaviour. It would be possible to suspend the sentence we impose (or a significant portion of it) for an operational period of over 4 years. Unfortunately, there is no mechanism to establish a supervisory regime in conjunction with such a sentence. It seems to me that in many cases (and this is a typical one), the community would best be served by coupling a suspended sentence with a community based order with the supervisory qualities of a probation order. Under the Penalties and Sentences Act 1992 as it presently stands, there is no power to order both probation and a suspended sentence in respect of the one offence. I would urge that consideration be given by the appropriate authorities to amending the Act to overcome this deficiency.

[ 1 ] R. v. Melano ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd R 186 at p. 189.

[ 4 ] Unreported, CA 60 of 1996, 31/5/96.

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