[2] On 3 December 2024, the appellant and co-defendants, Mr Inawasa and Mr Ale, were each sentenced for one charge of assault with intent to steal and one charge of assault occasioning bodily harm whilst in company upon their pleas of guilty. The appellant was sentenced to imprisonment for nine months for the charge of assault occasioning bodily harm in company and six months concurrently for the charge of assault with intent to steal, with a parole release date on the date of sentence.
[3] There are three grounds set out in the notice of appeal. They are that the Magistrate made a critical error in the factual findings, that she erred in failing to consider and apply the parity principle, and that the sentence, in all of the circumstances, was manifestly excessive.
[4] The sentencing hearing proceeded on an agreed statement of facts. CCTV footage of the offending was also tendered. The complainant who was unknown to the defendants was approached and brutally attacked by the defendants while walking in Fortitude Valley at about 4 am on 3 December 2024 in what was clearly a planned attack. Mr Ale distracted him before Mr Inawasa punched him to the left side of his face from behind. The appellant then dragged him down and into a bush. One of the defendants yelled, "Give me all your shit." Another yelled, "Grab his phone," and the defendants felt his pockets but did not take anything. This gives rise to the charge of assault with intent to steal. Thereafter, all three defendants punched and kicked the complainant as he lay in the bush. One of the defendants stomped on his face, but the statement of facts expressly records that the Crown is unable to particularise which one of the defendants did this. The complainant suffered abrasions, a black eye and a small corneal abrasion which resolved with the use of eye drops. This gives rise to the charge of assault occasioning bodily harm in company.
[5] The defendants were all aged 18 or 19 at the time of the offending. None had a criminal history at the time of the offending, although by the time of sentencing Mr Ale had two entries for breaching bail.
[6] The Crown expressly submitted at the sentencing hearing that parity principles apply and that the defendants have equal culpability for the offending. Their involvement, antecedents, and history were similar. In the submissions of the appellant's legal representative, $3,000 compensation was offered to the complainant. Each of the other defendants also offered compensation. Mr Ale offered $3,000 and Mr Inawasa offered $2,000. Only the appellant was ordered to pay compensation, however. This occurred at the conclusion of the Magistrate's sentencing remarks and without explanation. The full amount of $3,000 was ordered to be paid by 4 pm on 7 January 2025.
[7] The sentences imposed on the other defendants were as follows. Mr Inawasa was sentenced to imprisonment for six months wholly suspended for an operational period of two years for the offence of assault with intent to steal, and nine months wholly suspended for an operational period of two years for assault occasioning bodily harm in company, with the sentences to be served concurrently. Mr Ale was sentenced to six months' imprisonment with immediate release on parole for the offence of assault with intent to steal, and nine months concurrently with immediate release on parole for the offence assault occasioning bodily harm in company.
[8] Pursuant to s 222(2)(c) of the Justices Act, if a defendant pleads guilty or admits the truth of a complaint, he may only appeal on the sole ground that a "fine, penalty, forfeiture or punishment was excessive or inadequate". The effect of this restriction was considered by the Court of Appeal in Chakka v Queensland Police Service[2024] QCA 213 in the judgment of Brown J. Her Honour initially noted that it is well established that a decision as to sentencing involves an exercise of discretion, and that in this context House v The King(1936) 55 CLR 499 at 504-5 held that:
[3]
It must appear that some error has been made in exercising the discretion. If the Judge acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[4]
Importantly, Brown J concluded at [91] that while specific error alone is not sufficient to establish a ground of appeal under s 222(2)(c), "it will be sufficient if it is shown to have caused a sentence to be excessive or inadequate."
[5]
[9] In my view, in ordering the appellant to pay $3,000 compensation in addition to the sentences of imprisonment, a justifiable sense of grievance pursuant to the parity principle as explained in Postiglione v the Queen[1997] HCA 26; (1997) 189 CLR 295 at 301-302 arises. The question remains whether the order for compensation which is pursuant to s 35 of the Penalties and Sentences Act 1992 falls within an appeal of this type, having regard to the requirement under s 222(2)(c) of the Justices Act that a, inter alia, "penalty, forfeiture or punishment was excessive or inadequate". I note that the term "penalty" is broadly defined in sch 1 of the Acts Interpretation Act 1954 as "includes forfeiture and punishment". I note that it is given a more specific definition pursuant to the Penalties and Sentences Act as including "any fine, compensation, restitution or other amount of money but does not include an offender levy".
[10] Although the term is not defined in the Justices Act, it is clear that the term "penalty" in s 222(2)(c) is referring to a penalty imposed pursuant to the Penalties and Sentences Act, which in turn includes the compensation order made in respect of the appellant. This interpretation is consistent with decisions of the Court of Appeal, such as R v Matauaina[2011] QCA 344 and R v Allison[2012] QCA 249, which noted that such orders which either directly or indirectly allow for imprisonment for non-payment of compensation are clearly relevant in determining whether or not a sentence was excessive. Those decisions are however of limited relevance here as the Magistrate did not make it clear that there would be a consequence should the compensation she ordered not be paid.
[11] To the extent that the Magistrate apportioned blame based on her own viewing of the CCTV footage of the offending, in a manner inconsistent with the agreed basis for the sentencing pursuant to the agreed statement of facts and in circumstances where she afforded none of the parties the opportunity to make submissions about her findings, in my view, she made an error in exercising her sentencing discretion. However, when I have regard to the comparable decisions for offending of this type, and in particular the decision of the Court of Appeal in R v Lude; R v Love[2007] QCA 319, in the context of imprisonment not being a sentence of last resort pursuant to s 9 of the Penalties and Sentences Act, I am of the view that the terms of imprisonment imposed on each of the defendants, whilst harsh, were not manifestly excessive. This is further confirmed by the decision of R v Middleton and Johns[2006] QCA 92, where the Court of Appeal observed that at [39] that it:
[6]
will uphold sentences resulting in actual custody for first offenders with no prior convictions who plead guilty to assaults occasioning bodily harm where there are aggravated circumstances.
[7]
[12] What makes the sentence imposed on the appellant manifestly excessive is the order that he alone pay compensation in the sum of $3,000 in addition to the head sentence of imprisonment for nine months with immediate release on parole. Although there is not any real articulation as to why the Magistrate imposed wholly suspended sentences on Mr Inawasa but sentences involving immediate release on parole on the appellant and Mr Ale, the differences in this regard of themselves do not, in my view, give rise to a manifestly excessive sentence from the perspective of the appellant.
[13] I am informed that the compensation has now been paid, and it falls to me to re-exercise the sentencing discretion, having regard to the parity principle in the context of the compensation having already been transferred to the complainant. Balancing the need for deterrent sentences for offences of this kind with the youth and absence of criminal history of the appellant, but nonetheless taking into account the parity principle, I allow the appeal and resentence the appellant in respect of the charge of assault with intent to steal to imprisonment for three months, and in respect of the charge of assault occasioning bodily harm whilst in company to imprisonment for six months to be served concurrently with the other sentence. I order that the appellant be immediately released on parole with a parole release date backdated to 3 December 2024. The effect of this order is that the parole order to which the appellant is currently subject will cease on 2 June 2025.