2. The applicant relies on the following three grounds of appeal:

"1 That the learned Magistrate erred in fact and law

in ordering the imposition of a 2 month gaol sentence

upon the applicant for a breach of Section 35 (1) of

the Police Offences Act 1935, in that it was

manifestly excessive.

2 That the learned Magistrate erred in law and in fact

in that he failed to take into account or to take

sufficient account of the fact that, on the materials

before the learned Magistrate the applicant had no

prior convictions for assault or violent conduct.

3 That the learned Magistrate erred in law and in fact

in that he failed to exercise parity in sentencing

between the applicant and Brian Ciaran Mooney who was

charged with assault and trespass arising out of the

same series of events and was sentenced by way of

fine."

3. The offences occurred at about 10.30 pm on Friday 8 April 1994. The complainant and his wife were farewelling his brother and his sister-in-law who were then leaving his premises at 167 St John Street, Launceston after a family conference concerning the health of their father. As they approached the gate on to the property a group of four youths and a girl were walking along the street. One of the youths, named Mooney, started to punch the letter-box on the gate whereupon the complainant remonstrated and told the group to be on their way. Mooney then entered through the gateway, seized the complainant's brother by the throat and wrestled with him. The other youths also entered on to the property and were told by the complainant to leave. One of the other youths then approached the complainant's brother who was still wrestling with Mooney, and the complainant, fearing his brother was about to be struck from behind, grabbed the intruder. The applicant then approached the complainant and told him to let go. The complainant replied "When you people get off my property" and tried to move the youth he had hold of towards the gate. Thereupon the applicant punched him twice in the head causing his nose to bleed and inflicting a cut above his eye which required three sutures. The complainant in addition suffered a black eye and some neck pain still persisted at the time of the trial in July but otherwise he sustained no lasting injury. The complainant called out to his wife to telephone for the police and the youths all ran off.

4. The learned magistrate found both complaints proved and rejected the applicant's account that he had intervened when he saw the complainant on the back of Mooney who was wrestling with the complainant's brother and that he had merely grabbed the complainant by the back of the jumper and dragged him off Mooney and "just held him there". His comments on passing sentence were as follows:

"I found you guilty of two charges on the complaint of

common assault and trespass of the complainant Lindsay

Scott without any lawful excuse and also that you

assaulted him but (sic) punching him twice to the head

with a clenched hand and I take into account what your

counsel has said on your behalf and in all the

circumstances this was an unjustified assault on an

innocent citizen when he was doing no more than

endeavouring to protect another innocent citizen from

a gratuitous assault which had been perpetrated upon

that person who was a guest on his land. On the best

interpretation on the evidence is that your behaviour

was, your judgment and perceptions were affected by

alcohol and that you entered the land, you used

unreasonable force in dealing with the complainant in

situations where you may have thought that there was

some basis for you interfering. Now although no

lasting injury was incurred by the complainant, this

unwarranted assault upon a citizen on his own property

is the kind of assault that incurs in the concerned

outrage of an informed community and the penalty I

need to impose upon (sic) is one which reflects the

seriousness of the offence and that outrage and a term

of imprisonment is called for.

Now, I take into account what your counsel said on

your behalf and I note that you have no prior offences

of violence and I take into account your age and in

all the circumstances a term of imprisonment I impose

upon you also provides for your rehabilitation as well

as provide for some measure of protection of the

community and you will be sentenced to two months

imprisonment which is to commence at the expiration of

any term of imprisonment that you are now serving or

liable to serve. I will record a conviction on the

trespass."

5. The applicant was 19 years old at the time of the offence and had a long list of previous convictions mainly for crimes of dishonesty but there were some for street offences including three for abusive language and one for resisting arrest. He had received a suspended sentence of twelve weeks' imprisonment for burglary and stealing in July 1992, an actual sentence of eight weeks' imprisonment for burglary and motor vehicle stealing in November 1992 and at the same time an order that he undertake 56 hours of community service made in February 1992 was revoked due to his failure to attend and two weeks imprisonment substituted therefore. He was also gaoled for two weeks for breach of bond. In February 1993 he was ordered to serve the twelve weeks term suspended the previous July and in August 1993 he was sentenced to a total term of six months' imprisonment for a series of burglaries and thefts committed in June 1993. In October 1993 he was convicted of a breach of his probation order and a fresh one was imposed to take effect upon his release from prison. His counsel told the learned magistrate without objection that the applicant was alcohol dependent and that he had "been refused on previous occasions from doing community service orders" (I infer by the Probation Service).

6. In my view the characterisation by the learned magistrate of the assault as an unwarranted assault upon a citizen on his own property which incurs the concerned outrage of the informed community was apt and I agree that in the circumstances of the offence and the offender, a custodial sentence was called for. The offender's response to suspended sentences of imprisonment, community service orders and probation had been unsatisfactory and he had continued to commit offences even after having served several terms of imprisonment. Though imprisonment did not appear to have much deterrent effect it must have been obvious that a sentence short of imprisonment was likely to have even less. The absence of previous convictions for assault did not call for the learned magistrate to adopt a totally different approach to sentencing than he had adopted for the other serious offences which had brought the applicant before the courts previously. In my view the sentence cannot be said to have been manifestly excessive nor am I persuaded that the learned magistrate erred in failing to take into account sufficiently the absence of any previous convictions for assault or violent conduct, even if one accepts that abusive language and resisting arrest do not involve a degree of violence. There is no substance in the first two grounds.

7. The third ground arises by virtue of the fact that two weeks after the applicant's conviction and sentence, Mooney appeared before the same magistrate and was fined $325 for an assault on the complainant's brother and $150 on a count of trespass to the complainant's land. It is submitted that the disparity in treatment of both offenders is so great as to lead to a justifiable sense of grievance on the part of the applicant. Reliance was placed on Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Prestage v The Queen (1979) Tas R 270, Johnson v The Queen (1983) Tas R 50, Cowen v The Queen 1983 Tas R 94, Cox (1991) 55 A Crim R 396.

8. In Mooney's case he was about fourteen months older than the applicant and he had a similarly bad record for burglary and stealing and for street offences. He had three previous convictions for abusive language, one for being drunk and disorderly, one for engaging in disorderly conduct and one for assault committed in June 1983 for which he had received six weeks' imprisonment wholly suspended. Nevertheless, there were significant differences between the two offenders.

1 Mooney had never been subject to an actual term of

imprisonment.

2 The assaults with which he was charged were of a different

character. On the version presented at the applicant's

trial, Mooney had initiated the trespass of the group on to

the complainant's property and had assaulted his brother in

a one on one situation. The applicant, however, had

attacked a man unable to defend himself because he was

restraining another member of the group. Furthermore, the

applicant had administered two punches with sufficient force

to cause the injuries I have mentioned. However, when

Mooney came to be sentenced the version presented on his

behalf showed his conduct as even more bland, it being

claimed that in a drunken state he had staggered into the

letter-box and gate of the residence whereupon the occupants

had advanced upon him and spoken in an aggressive way

causing him to think he was going to be attacked. He had

grabbed the brother of the complainant by his clothing and

around the neck "that is, by the scruff of the neck" and a

wrestle began and he fell through into the property. I have

previously had occasion to comment on the perennial problem

when co-offenders are dealt with separately or where the

evidence admissible against one but not the other may show

him in a better light than the other. Such a case was

Randall v Lowe 59/1985 where I said that it was not a matter

which could in the circumstances of that case lead to any

justifiable sense of grievance by the applicant if a

co-offender had to the applicant's mind been wrongly treated

as a minor participant in the offence. The learned

magistrate having been presented with those facts when

dealing with Mooney had no option in the absence of any

urging by the prosecution to the contrary but to pass

sentence on that basis. This cannot lead to a justifiable

sense of grievance on the part of the applicant.

3 Mooney pleaded guilty on 5 July 1994. The complaint had

particularised the assault as "grabbing him around the

throat and attempting to punch him". On that day the last

five words were deleted and a plea of guilty was entered.

The applicant pleaded not guilty and was tried on 5 and 14

July. Of course he could not be penalised for putting the

prosecution to proof but he thereby lost the mitigating

effects of a plea of guilty.

9. In my opinion there was ample ground for differentiating between Mooney and the applicant and the difference in punishment meted out to each for their separate offences, which admittedly arose out of the same factual matrix, is not so great that any injustice is apparent. The appeal is dismissed.