R v Dempsey & Perks; ex parte A-G [1999] QCA 520

[1]

Director of Public Prosecutions (Queensland) for the appellant

[2]

[1] PINCUS AND THOMAS JJA: This is an Attorney's appeal against sentence. Each of the respondents was convicted of assault occasioning bodily harm and there were two aggravating circumstances charged, first that each accused was armed with an offensive weapon and secondly, that he was in company with another. Each respondent pleaded guilty. There was no evidence called and to some extent the assertions made as to the facts, as against the respondent Perks, were in conflict; that is, what the Crown said about him did not accord precisely with his own counsel's submissions. Having read the submissions made below on each side, it appears to us that it is proper to take the facts from those found by the primary judge, with some additions.

[3]

[2] There were five people involved, the two respondents and three others; all were aged 17 at the time. There was a party on the evening in question attended by these five and others and at the party the respondent Perks told some of his friends of his experiences with what the judge described as "homeless people" who regularly camp in Barlow Park, Cairns. The judge said that Perks used sometimes walk through Barlow Park to get to his father's place of work and that on a few occasions he had been abused and had bottles thrown at him by the Barlow Park people. A vague plan developed at the party, the judge said, to go to Barlow Park to get back at the park people for their conduct; so carloads of boys and girls drove to the park, some of them being armed with various implements.

[4]

[3] The five people who were charged, and others, ran towards the park yelling, the judge said, and banging their weapons against posts and the like to make noise intending to frighten the park people. Most of the park people jumped up and ran away, some throwing bottles and sticks in reply. One of the people in the park, a Mr Pascoe, was slower than the rest; Perks tripped him up, the judge said, causing him to fall over and then Perks kicked him a few times. Dempsey hit Mr Pascoe a couple of times with a baseball bat. A person called Wood told them to stop and they did so. Mr Pascoe's injuries were described by the judge as being significant although not serious. His Honour said that Mr Pascoe suffered two small cuts to the face and two areas of tenderness and swelling to the back and that he suffered no long term effects.

[5]

[4] What we have said has been taken from the judge's remarks. It is necessary to add that, according to Perks' counsel, there were a whole lot of people in the park apart from the youths who came in the car and Perks was not in fact armed with any weapon. Also, counsel for the Crown Mr Chowdhury said below, and it was not contested, that after the attackers left the area they went to a store where Dempsey and Perks boasted of what they had done. Mr Chowdhury said to the judge, and it was not disputed, that Dempsey said at the store "I smashed a coon in the back" and Perks said "I ankle tapped an old fellow and wrestled him and threw him back on the ground". Other participants made similar remarks and Mr Chowdhury said "[t]hey were all apparently boasting and congratulating each other". Further, Mr Chowdhury said that in an interview Wood, another accused, attributed to Perks the statement that he "wanted to go to Barlow Park and make a racket and throw rocks at the Aboriginal people who camped there". In the interview Wood also said of Perks that he "said they would go over to the park and beat up the Aborigines". Wood said that he was then called into the park by Dempsey and Perks and he was given a mountain bike glove - presumably for use in an assault; Wood said that he thought Perks had some sort of metal pole, but he was not sure.

[6]

[5] The judge mentioned that, of the offenders, only Dempsey had a prior conviction and that was for a minor offence of dishonesty. It is worthy of note, however, the conviction for that offence was only a week prior to this incident. The judge took the view that Dempsey and Perks were the more serious offenders and they were sentenced to 9 months imprisonment to be served by way of intensive correction orders. His Honour was of opinion that Dempsey and Perks were, on the material presented to him, industrious young men. This description was applied to all five offenders and his Honour said they took up employment opportunities where they were able and all had definite career plans for the future. The judge described their conduct as reprehensible and said that it arose out of immaturity, stupidity and bravado.

[7]

[6] It was submitted for the Crown below that the attack had a racial motive, but his Honour was not prepared so to find. He said that in his view it was mainly contempt for the lifestyle of people in the park rather than any "deeply held racial hatred" which brought about the attack. His Honour also said that the primary motive for the conduct was the desire to pay back the park people for their behaviour towards Perks.

[8]

[7] One factor which might have influenced the judge's opinion on this subject of racial motivation is that Perks' mother was said to be a person who "came from Thursday Island"; we were told at the hearing in this Court that the mother is partly of what counsel described as "South Sea Island" stock. It was also said on Perks' behalf that some of the people in the park were of European descent.

[9]

[8] It is not easy, since the decision of this Court in Morrison [1998] QCA 162; [1999] 1 QdR 397, to obtain on appeal a finding adverse to a person being sentenced, when the judge below has declined to make that finding. The principal judgment of the majority, that of Williams J, includes the following:

[10]

"But where it is sought to prove an issue which is adverse to an offender in the sense that, if proved, it would be likely to result in a heavier sentence, and that issue is disputed, it must be proved beyond reasonable doubt". (422)

[11]

Dempsey was not represented at the sentencing hearing. The sentencing judge questioned him about his personal circumstances, but there was no discussion by Dempsey of his part in the attack and in particular no discussion of the motive for it. Perks' counsel vigorously denied that the attack had anything to do with race. The judge was not satisfied, on the basis of the statements made from the Bar table, that the attack was brought about by racial hatred.

[12]

[9] Mrs Clare who appeared in this Court for the Attorney pointed out that some of what was said by the respondents was indicative of a racial motive. But it is our opinion that in view of the denial on behalf of Perks, and taking into account that Perks is, in part, of non-European descent, it is impossible to hold that the sentencing judge was required to be satisfied, to the standard laid down in Morrison, that the reason for the attack was racial hatred. We should add that it is not every assault by a person of European descent upon one of another descent, nor every assault by a person of non-European descent upon one of European descent, which has a racial motivation.

[13]

[10] The conclusion we have reached on this topic makes it unnecessary to discuss to what extent a racial motivation for assault makes the offence worse than one committed for other reasons which commonly operate, such as revenge for a real or fancied insult, robbery, or mere irrational cruelty.

[14]

[11] We have been referred to a number of decisions in this Court in what are said to be comparable circumstances; none of them is close enough to the present case to be of great assistance. But assaults causing bodily harm come before this Court, for consideration of the propriety of a sentence imposed, fairly often; the Court's experience of sentences imposed of similar cases is extensive. It is our opinion that one would not necessarily expect a custodial sentence to be imposed in a case where the facts are like those in the present. The respondents were, as we have mentioned, only 17 at the time of the offences and only Dempsey had any offence in his criminal history; it was a minor one, although recent. Fortunately Mr Pascoe was not injured in such a way as to cause any permanent harm; it is not very clear when he was discharged from hospital, but he was there for a relatively short time.

[15]

[12] The conclusion at which we have arrived is that, even taking into account against the respondents that they committed their offences after the important amendments made in 1997 to s 9 of the Penalties and Sentences Act 1992, it is not possible to hold that the primary judge's view of the seriousness of the case, as reflected in the sentences his Honour imposed, was so wide of the mark as to justify the imposition of sentences heavier than those which were ordered.

[16]

[14] CHESTERMAN J: I agree that the appeal should be dismissed for the joint reasons given by Pincus JA and Thomas JA. In particular I agree that a custodial sentence will not inevitably be imposed in cases similar to the present where the perpetrators are youthful and without prior conviction.

[17]

[15] The point in the appeal is not whether the most appropriate sentence was imposed, or even whether a more appropriate sentence might have been inflicted. The point is whether the sentence is beyond the range of what is permissible having regard to the nature of the offence, the circumstances in which it was committed and matters personal to the accused. The consideration of these three categories of factors when exercising a sentencing discretion will invariably lead to a range of penalties for broadly similar offences depending upon which of the factors is given prominence and the respective weight given to each.

[18]

[16] That the youthfulness of an offender coupled with the fact that he or she is being punished as a criminal for the first time remain very relevant when choosing a penalty, despite the amendments made in 1997 to the Penalties and Sentences Act 1992, is made clear by the decision of this court in The Queen v Taylor and Napatali; ex parte Attorney-General [1999] QCA 323 which recognised, however, that the weight to be given to that factor is less than it was prior to the amendments. The President (with whom Thomas JA agreed) noted that:

[19]

"The courts have long recognised the desirability of not sending youthful offenders without prior convictions to prison because of the chances of favourable reformation."

[20]

McPherson JA noted that the form of sentence, which was the same as that imposed in this case, was:

[21]

"... a useful method for dealing with young offenders, and it is used particularly where there is considered to be some prospect they will not re-offend."

[22]

"The critical factor influencing the judge's sentencing discretion ... was that the respondents were youthful first offenders, for whom the judge considered there was some real prospect of rehabilitation if they were not sent to gaol. That has been regarded as a significant factor in sentencing for as long as any of us can remember, and no doubt for very much longer. It is not one that is confined to this State, as can be gathered from the ... reasons for judgment of Wanstall CJ ... in R v Price (1978) Qd R 68, 70-71. His Honour quoted with approval from the Tasmanian case of Lahey v Sanderson [1959] TASStRp 10; [1959] Tas SR 17 ...

[23]

'The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and, in the ordinary run of crime, the dominant consideration in determining the appropriate punishment to be imposed. It has been said by ... the former Lord Chief Justice of England, that a judge ... who sends a young man to prison for the first time takes upon himself a grave responsibility.'

[24]

That ... is a principle ... that has repeatedly been adopted and applied in the process of sentencing ... in Queensland."

[25]

"I am ... unable to identify anything in the Act of 1992, as amended in 1997, which now compels the imposition of a substantial sentence of imprisonment on a young first offender as a matter of course; or, in other words, which deprives a sentencing judge of ... discretion ... of deciding in appropriate circumstances not to impose a sentence of imprisonment ...".

[26]

[18] In R v Lovell [1998] QCA 36; [1999] 2 Qd R 79 Byrne J (with whom Davies JA agreed) said:

[27]

"The 1997 amendments reflect a legislative conviction that less hesitation by the courts in requiring a violent offender to undergo the rigours of imprisonment conduces to the protection of the community from the offender and from others who might be tempted to commit similar offences. Nonetheless youth remains a material consideration; for the rehabilitation of youthful, even violent, offenders, especially those without prior, relevant convictions, also serves to protect the community."

[28]

[19] The Attorney's submission invites the court to conclude that the discretion of the sentencing judge miscarried because his Honour gave too much weight to the respondents' youth and lack of criminal history. But the authorities to which I have referred make it clear that these factors remain of considerable relevance. It is only if the discretion is exercised by reference to some wrong principle or by some misapprehension of the facts that the Court of Appeal can interfere.

[29]

[20] In my opinion it is right that sentencing judges should retain a degree of reluctance to send youthful first offenders to prison. The reluctance will in many cases be overcome by the nature and circumstances of the offence but it will not always be so in the case of assaults occasioning bodily harm, even those committed whilst armed and in company.

[30]

[21] It is impossible to find anything positive to say about the respondents' conduct or their motive for assaulting their victim, but it must be recognised that the degree of violence was not great, even though a club was the means of expressing it, and the attack was not persisted in. To send the respondents to prison would be to expose them to the risk that for the period of their incarceration they would be exposed to or might suffer degradation and violence to a degree in excess of anything they inflicted.

[31]

[22] That the sentences appealed from are within a permissible range is indicated by the judgment of this court in The Queen v Rowe and Talbott (CA Nos 149 and 152 of 1996, 23 July 1996), admittedly decided before the 1997 amendments to the Penalties and Sentences Act. The assault in that case was committed by two 17 year old males upon a schoolboy aged 16. The attack was more violent, more vicious and more sustained than that committed by the respondents. The boy was intoxicated and unable to resist. He was left unconscious and bleeding in a park out of sight of anyone who might have rendered assistance. The victim spent several days in hospital and was partly incapacitated for some months. Sentences of 18 months imprisonment to be suspended after three were set aside and instead an intensive correction order for 12 months was substituted. The principal factor was the youth of the attackers and their lack of prior criminal history. The result appears lenient but despite the subsequent amendments to the Act the decision makes it impossible to conclude that the sentences under appeal are beyond the acceptable range.

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