R v Denyer [2009] QCA 53

Director of Public Prosecutions (Queensland) for the respondent

[1] KEANE JA: On 1 December 2008 the applicant was convicted on his own plea of one count of unlawful wounding. He was sentenced to 18 months imprisonment with a fixed parole release date of 1 March 2009. The learned sentencing judge declared 19 days pre-sentence custody to be time served in respect of the sentence.

[2] The applicant seeks leave to appeal against his sentence on the following grounds:

"1. The sentencing judge erred in the application of relevant provisions of the Penalties and Sentences Act 1992 (Qld); and

1. 2. The sentence imposed was manifestly excessive."

[3] On 23 December 2007 the applicant struck the complainant, a young man of the same age, on the face with a beer bottle. The bottle shattered upon impact injuring the complainant's left eye, causing a laceration to the face which required six sutures and fracturing the zygomatic bone. The complainant suffered from blurred vision and headaches for a week. He also suffered an ear infection. He has been left with some scarring.

[4] Before the assault, the applicant and the complainant had been drinking in a hotel. They knew and disliked each other. They exchanged insults and some pushing and shoving which involved some provocative behaviour on the part of the complainant towards the applicant. The applicant's attack on the complainant occurred some

20 minutes after this confrontation without any further provocation on the part of the complainant.

[5] The applicant consented to an ex officio indictment on 23 January 2008. Although the applicant provided a confessional statement to the Director of Public Prosecutions on 8 April 2008, an agreed factual basis for sentence was not reached until 4 September 2008. On 19 September 2008 the applicant was committed for sentence after a full hand-up committal.

[6] When he was originally released on bail, the magistrate ordered that the applicant abstain from alcohol and undergo counselling and treatment. The non-drinking requirement was lifted after he was committed to be sentenced, but the applicant continued to abstain.

[7] The applicant spent 19 days in custody over the Christmas/New Year holiday period in 2007 - 2008. He spent a further nine days in custody after he was sentenced last year before being released on bail pending the hearing of this application.

[8] The applicant was 20 years old at the time of the offence and 21 years old when he was sentenced.

[9] On 9 October 2007 he was fined $1,500 for an assault occasioning bodily harm which occurred on 27 May 2007. The applicant had been drinking in a hotel when he responded to an insult with a punch.

[10] The applicant is indigenous. He was brought up in modest circumstances by his mother with whom he still lives. He was rejected by his father. He completed his schooling to grade 12 standard in 2004. He is the only person in his family to have completed secondary schooling. He has been in stable employment as a concreter since leaving school, and has provided substantial financial support for his mother and younger brother. Others speak well of him. He is actively involved in rugby league football, and is well regarded by his club coach.

[11] The applicant is the father of a child born in December 2008 after he was sentenced. While the applicant and the mother of his child are no longer together, the applicant is said to be committed to providing emotional and financial support for his child.

[12] In relation to the offence of 23 December 2007 the applicant was released on bail on 9 January 2008. Subsequently, the applicant participated in anger management counselling and attended meetings of Alcoholics Anonymous.

[13] According to Mr Luke Hatzipetrou, a psychologist who provided a report in relation to the applicant, the applicant has exhibited a pattern of alcohol abuse which no doubt contributed to this offending. Mr Hatzipetrou summarised his opinion in the following terms:

"Mr Denyer possesses the intellectual capacity to benefit from the recommended treatment strategies. He appears to possess strong motivation to address his maladaptive anger responses, maintain abstinence from alcohol and establish effective coping strategies. He is engaged in meaningful employment, which has resulted in increased self-esteem. He has a strong affiliation with his family and aspires to maintain a network of social supports. At present, he does not abuse alcohol and/or illicit drugs. There is no known history of childhood behaviour disorder or criminality. He is willing to comply with future treatment and court ordered conditions. Furthermore,

Mr Denyer did not possess the versatility and pervasive criminogenic factors often observed in violent offenders. Similarly, he did not present with antisocial personality disorder or psychopathy. These present as significant protective factors. Importantly, he presented with genuine remorse for the actual offences and accepted responsibility. Mr Denyer has demonstrated adherence to conditions of bail and attended scheduled appointments. In light of these findings and compliance to these conditions, the risk of recidivism appeared to be low.

In light of his learning abilities, clinical presentation and current age, Mr Denyer is likely to benefit from these interventions or similar. These programs and services are offered in community settings. In light of Mr Denyer's community connections and strong family ties, the stronger prospects of rehabilitation remain in community settings. Given the aversive reaction to his previous incarceration and current behavioural changes, Mr Denyer is unlikely to experience clinical and/or behavioural benefits from detention. Coupled with ongoing participation in the relevant treatment programs, the risk of re-offending is likely to be significantly reduced. Whilst the decision regarding Mr Denyer's sentencing is respectfully in the hands of the court, it is anticipated that these recommendations may assist the court in the current proceedings."

[14] The learned sentencing judge noted that the maximum penalty for this offence is seven years imprisonment. His Honour also noted that the issue of general deterrence of this kind of offence was important and that the offence had been committed in a public place and involved the use of a weapon.

[15] His Honour accepted that the applicant exhibited "considerable remorse" for his offending.

[16] During the course of the sentence hearing, reference was made to the decision in R v Hays; ex parte A-G[1] where the Chief Justice said that:

"Ordinarily persons committing offences of this character must expect to have to serve a term of actual imprisonment. That is so even if the offender is young with an unblemished record, and commits the offence spontaneously."

[17] In the course of the sentencing hearing, the learned sentencing judge adverted to the Chief Justice's observations, and Mr Boe, who appeared for the applicant, sought to "persuade [his] Honour that this is not an ordinary case in several respects".

[18] Mr Boe went on to emphasise that, the applicant, having been in gaol for a short period for this offence, had committed himself to rehabilitating himself in the period of almost a year prior to the sentencing hearing. The learned sentencing judge did not overlook this important consideration. And his Honour was also alive to the importance of Mr Hatzipetrou's evidence concerning the causes of the applicant's offending behaviour. In his sentencing remarks, his Honour said:

"You were a young man when you committed the offence. That is an important consideration in the overall sentencing process. In fact, the Penalties and Sentences Act says that custodial sentences, in effect, should be sentences of last resort. Young offenders, I think, particularly, should be given consideration in respect of custodial sentences, all things being equal. In your case, there are a number of features which are in your favour. You have undergone what I regard to be a very serious and detailed and I suspect, real, rehabilitation. Mr Boe uses the words that your rehabilitation is 'all but complete'.

From what is said by those who know you in references you are and have been regarded otherwise as a very decent, law abiding,

well-regarded young man and I take that into account. What

Mr Hatzipetrou said in his report which is Exhibit 4 bears some consideration in terms of an explanation for why this event took place.

Page 5, paragraph 3. 'The evidence suggests Mr Denyer appeared to use alcohol as a means of coping with the psychological distress associated to relationship problems and daily stressors. Specifically, it appears Mr Denyer developed an ineffective behavioural response, substance abuse, to cope with social dilemmas. It appeared

Mr Denyer enjoyed the deleterious effects of alcohol which assisted him in coping with negative emotions. This coping response was likely to be reinforced by these effects of the alcohol. In addition, the current evidence suggests this degree of alcoholism had impacted upon his mental state, behavioural control and social justice.'

Not only then does that provide some insight into the reason for your offending but one can contrast that against what I accept to be significant rehabilitation, as I have already requoted from Mr Boe as to be all but complete.

You have demonstrated considerable remorse. Not only is there a plea of guilty - and at an early stage having regard to the nature of the committal proceedings.

You proffered a private apology to the complainant and in this Court today have tendered a public written apology which may be received by the complainant but he will certainly be informed, I am told, by the prosecution, about it."

[19] In the upshot, however, the learned sentencing judge imposed a sentence which involved a period of actual custody in order to give effect to the perceived need for an element of general deterrence. That his Honour proceeded in this way is understandable given that the offence involved striking with a glass bottle.

[20] The principal argument advanced in this Court by Mr Callaghan SC, who appeared with Ms Morreau on behalf of the applicant, fastens upon the learned sentencing judge's remark that "the Penalties and Sentences Act says that custodial sentences, in effect, should be imposed as a last resort." The applicant argues that this principle, expressed in s 9(2)(a)(i) of the Penalties and Sentences Act, has no application where the offence involved personal violence - see s 9(3). The applicant argues that the learned sentencing judge was distracted by this error and, in consequence, failed to have regard to some matters to which he was obliged to have regard by s 9(4) of the Act. In particular, it is said that his Honour failed to have primary regard to the applicant's "attempted rehabilitation" and to

Mr Hatzipetrou's report as required by s 9(4)(g) and (j) respectively.

[21] It is clear, however, from what has already been said that the learned sentencing judge did advert to the applicant's attempts at rehabilitation and Mr Hatzipetrou's opinion. The learned sentencing judge was fully cognisant that the applicant's tendency to personal violence was rooted in the consumption of alcohol and of the applicant's attempts at abstaining from alcohol and rehabilitating himself. His Honour expressly accepted that these attempts had been largely successful. To the extent that, in taking these considerations into account, the learned sentencing judge was concerned to impose a sentence of imprisonment only as a last resort, that error on his Honour's part was very much in the applicant's favour.

[22] The applicant also argued in written submissions that his Honour erred by fettering his discretion in that he regarded a custodial sentence as mandatory. This argument was not pressed in oral submissions. In my respectful opinion, the sentencing discretion was not constrained in the way asserted in the applicant's written submissions. The discretion was exercised with due regard to the factors in favour of the applicant, but also bearing in mind the serious nature of the offence. The striking was to the face near to the eye. The assault was relevantly unprovoked, and its consequences for the victim were serious. The striking with a bottle was particularly reprehensible especially since it was not a "spur of the moment" reaction but a premeditated attack long after any provocation had ceased. Drunken violence by young men in hotels, especially where the violence involves "glassing" is a serious societal problem. Sentencing judges can be expected to give significant weight to considerations of general deterrence and denunciation even where the offence is committed by a young man with an otherwise good record. And, in this case, issues of personal deterrence arise as well because the applicant's record was not unblemished so far as personal violence is concerned.

[23] Next, it was said on the applicant's behalf in written submissions that the sentence was manifestly excessive. That submission is difficult to sustain in light of the observations of the Chief Justice in R v Hays to which reference has been made. The learned sentencing judge may have regarded the applicant's rehabilitation as a work in progress which was unlikely to be undone (to the detriment of the community as well as the applicant) by a term of actual custody, or his Honour may have considered that the risk of such a result was outweighed by the need to denounce and deter offences of this kind.

[24] It was also said in the applicant's written submissions that reference to this Court's decision in R v Hays shows that the sentenced imposed in this case was manifestly excessive. This submission was not pressed in oral argument on the hearing of the application; but it is convenient to address the point because the discussion tends to dispel any concern that the sentence which was imposed was such as to reflect a failure by the learned sentencing judge to have primary regard to the matters referred to in s 9(4)(g) and (j) of the Act.

[25] R v Hays was a case of a striking with a glass which broke on contact. The offender was 24 years old. A sentence of 240 hours community service was set aside and a sentence of 18 months wholly suspended was imposed by this Court on the basis that the offender had already performed 58 hours of community service when the appeal was heard. It is said that the offender in Hays could not point to the substantial rehabilitative steps taken by the applicant in this case. That may be conceded, but against that consideration must be put the circumstances that the offender in Hays did not have a history of violent offending and, perhaps more importantly, an apprehension that an increased number of "pub glassings" in the

10 years since R v Hays was decided calls for a stern expression of disapproval. It is in the nature of this kind of offending that the target audience for a deterrent message consists of otherwise decent young men with no criminal history or inclination who will usually be most unlikely to offend in this way again.

[26] Reference to the recent decision of this Court in R v Bennett[2] confirms that a period of actual custody was well within a sound exercise of the sentencing discretion, with primary regard being had to s 9(4)(g) and (j) of the Act, to conclude that the applicant's personal circumstances were not so exceptional as to warrant a

non-custodial sentence. In R v Bennett a sentence of 18 months imprisonment with fixed parole release after four months was not disturbed on appeal. That was a case of a pub glassing which did not result in actual wounding, and the striking was a spontaneous act in the course of an altercation. The offender was 26 years old with a good work history and a relatively brief history of some violent offending.

[27] Finally, on the applicant's behalf it is said that, because the applicant has spent

19 days in pre-sentence custody and was released on bail after serving nine days of his sentence pending the determination of this application, this Court would not now be justified in "returning him to prison" to serve the remainder of his term. The applicant relies upon the view of a majority of this Court in R v Neivandt.[3]

[28] There is, in my respectful opinion, some difficulty in point of principle in this Court arrogating to itself a discretion to decline to return a prisoner to gaol where the sentence imposed on him is one with which the Court regards as proper. The principle upon which the majority proceeded in R v Neivandt was not explained, and on this application the argument was pressed only as an adjunct to a conclusion that the sentencing was affected by error which required this Court to re-sentence the applicant. Nevertheless, I am prepared to accept on the authority of the decision in R v Neivandt that:

"[t]here may be marginal cases where the period already served is so close to the appropriate sentence that the inconvenience of returning an applicant to prison might induce a court to fix that period as the time to be served, in order to avoid the inconvenience of returning an applicant to prison for a trivial period."[4]

[29] In this case, however, the balance of the term which the applicant should serve in custody pursuant to what I regard as a proper sentence is not trivial. In R v Neivandt the offender had served 36 days of four months in actual custody and he suffered serious health problems. In this case the applicant has served only nine days of the four month period of actual custody required by his sentence. And that sentence was not rendered unduly severe by any error on the part of the learned sentencing judge.

[30] In my respectful opinion, the grounds advanced in support of the application have not been made out.

[31] I would refuse the application for leave to appeal.

[32] A warrant should issue for the apprehension of the applicant but should lie in the registry for seven days.

[33] MUIR JA: I agree with the reasons of Keane JA and with the orders he proposes.

[34] FRASER JA: I agree with the orders of Keane JA and his Honour's reasons for those orders.

[1] [1999] QCA 443 at [2].

[2] [2007] QCA 324 esp at 3 - 5.

[3] [2000] QCA 224.

[4] [2000] QCA 224 at [31].