R v Hays; ex parte A-G [1999] QCA 443

Director of Public Prosecutions (Queensland) for appellant

[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment prepared by Davies JA and Jones J.

[2] 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.

[3] The only circumstance which would dissuade me from ordering actual imprisonment in this case, upon appeal, is that the respondent has already completed 58 hours of community service. This Court approaches Attorney's appeals recognising that when offenders leave the sentencing court, they have a reasonably settled expectation that their matter has been effectively disposed of, and so revised sentences imposed following successful Attorney's appeals are often more moderate than should have been imposed in the sentencing court itself.

[4] This appeal should succeed for the reasons given by Davies JA and Jones J, and the level of sentence increased to the suspended term of imprisonment they would impose.

[5] But I make it clear that I would have considered a term of actual imprisonment to have been warranted in the sentencing court in this case, and I would not like our approach now to be seen as suggesting a softening of the Court's approach to a crime which is committed far too frequently and which must therefore be strongly deterred.

[6] DAVIES JA AND JONES J: This is an appeal by the Attorney-General against a sentence imposed in the District Court on 14 July last of 240 hours community service for the offence of unlawful wounding. This is yet another of many cases which have come before this Court in which one person has wounded another with a broken beer glass. The Attorney referred to no less than 11 appeals to this Court in the last decade concerning a sentence for unlawful wounding involving mostly beer glasses, but on one occasion a beer jug and another, a bottle. We will only add at this stage that all of them resulted in a sentence of imprisonment, the sentences varying between 12 months and three years. We shall return to some of those cases later.

[7] The respondent was 24 years of age at the time of commission of the offence which was on or about 16 January this year. He had no relevant prior criminal history.

[8] The complainant was a 22 year old man on holidays in Brisbane visiting friends. He was in a group at the Transcontinental Hotel at about 1.00 am on the night of the offence with a group of about nine people about seven of whom were girls. The respondent, who was not a member of the group, grabbed two of the girls by the buttocks. The complainant took exception to that on behalf of the girls. The respondent agreed that he was out of line and the complainant then said, "Make sure you don't do it again or I'll deal with you."

[9] Someone associated with the respondent then invited the complainant to fight and after a brief exchange of words the complainant said, "Piss off." The complainant went to turn away and was pushed in the chest by the person who had extended the invitation to fight and then struck with the glass on the chin by the respondent. He fell back and felt a throbbing pain and his mouth fill with blood. He saw the respondent holding a piece of glass which he was extending towards him.

[10] It was submitted on the respondent's behalf that the act of striking the complainant with the glass was not a premeditated act but was a spontaneous reaction to what had occurred. His Honour suggested that what counsel for the respondent was submitting was that it was a reckless blow or gesture. What his Honour meant by that, as appears from his report, is that the respondent was mindless of the consequences of striking with a glass in his hand. It is also clear enough what was being put on the respondent's behalf. It was not that the blow was unintentional or that the respondent did not know that he had a beer glass in his hand. Rather it was, as we have already said, that the blow was spontaneous rather than premeditated.

[11] The respondent had no recollection of events and the evidence of them came from others. An eyewitness described the glass as having been used as a weapon. What that means is not entirely clear. What is clear, however is that the blow was struck in a motion downwards and across in a manner apparently inconsistent with a punch but consistent with an intention to strike with the glass. It was submitted for the appellant in this Court that some of his Honour's remarks during the course of argument are inconsistent with this. However, whether or not that was so, we do not think that any of his sentencing remarks are inconsistent with those uncontested facts.

[12] It must be accepted, in the respondent's favour, that there are a number of mitigating factors. He is still very young and has virtually no prior criminal history; his only conviction being for possession of a dangerous drug, presumably marijuana, in 1993. He has never been to gaol. He pleaded guilty and his Honour accepted he was remorseful and regretful in relation to the incident. He has a good employment history and a number of apparently responsible people have spoken well of his character.

[13] Against that is the seriousness and prevalence of offences of this kind, the latter demonstrated, at least to some extent, by the prevalence of cases of this kind, in proportion to other cases, coming before this Court. Relevant also are the consequences which the crime has had for the victim. He has undergone a considerable amount of pain. He was understandably upset and shocked by what occurred and remains distressed, even at the time of sentencing, by his memory of the incident and by the scarring with which he has been left which is noticeable though not disfiguring.

[14] Counsel for the Attorney submitted that two specific errors by the learned sentencing judge caused the exercise of his sentencing discretion to miscarry. We have already mentioned the first of these and concluded that, notwithstanding what his Honour said in the course of argument, he did not sentence under any misapprehension of the undisputed facts. The second was, it was submitted, that his Honour erred in taking into account the fact that the respondent would have a greater capacity to pay compensation to his victim if he were not sent to gaol. Of course if his Honour had done that it would have been plainly wrong. The passage in his Honour's reasons relied on for the submission that he did is as follows:

"If he chooses to bring an application for such compensation [under the Criminal Offence Victims Act 1995], and having regard to his interests, my view is that I should not frame a sentence which may enrich the State but prevent you meeting any order for damages or compensation."

What his Honour meant in that passage is not entirely clear. But it is difficult to think of any sentence, other than by way of fine, which would enrich the State. Certainly a prison sentence would not do so. We cannot therefore give that passage the meaning contended for by the appellant.

[15] The question is whether, in the circumstances already outlined, the respondent, having been given a sentence of 240 hours community service, should now, on an Attorney's appeal, be ordered to undergo a short period of imprisonment for, as will appear from the authorities, it would not be appropriate, on any view, to sentence him to more than 12-18 months imprisonment.

[16] The comparable sentences referred to us by the appellant were, in approximate chronological order, Bouma (CA No 261 of 1988, 2 February 1989), Robertson (CA No 103 of 1989, 18 July 1989), Vickery (CA No 62 of 1992, 12 June 1992), R v Melano [1994] QCA 523; [1995] 2 QdR 186, Darwin (CA No 98 of 1996, 4 June 1996), Hamilton (CA No 440 of 1996, 6 December 1996), Maguire (CA No 490 of 1996, 4 February 1997), Anders (CA No 571 of 1996, 25 July 1997), Hallett (CA No 100 of 1997, 19 June 1997), Comerford (CA No 274 of 1997, 27 August 1997) and Cooney (CA No 386 of 1997, 6 March 1998). As mentioned earlier, all of them were sentences for unlawful wounding involving the use of a beer glass or, on one occasion each, a beer jug (Robertson) and a beer bottle (Bouma) and resulted in sentences of between one and three years imprisonment. However some of them, either because of the higher degree of criminality involved or because they involved offenders with more serious prior criminal histories or involved conviction after a trial, or because of a combination of these factors, are not useful comparisons. We shall refer only to those which are most directly comparable to this.

[17] In Vickery a sentence of 200 hours community service, a sentence similar to that imposed here, was increased on an Attorney's appeal to 12 months imprisonment. Like this case, that one involved a conviction for unlawful wounding arising out of an attack with a broken glass upon another man in a hotel. Even though the act in that case was described as spontaneous, it appears to have involved more deliberation than that in this. There was a long history of ill will between the respondent and the complainant who had been dealt with on more than one occasion for harassment of Vickery and his woman companion who had formerly been in a relationship with the complainant. When the complainant approached the woman, Vickery broke the glass which he was holding and then struck the complainant in the face causing him serious injuries. However Vickery co-operated with the police, pleaded guilty at an early stage and gave clear signs of contrition and remorse. Moreover, he had completed his community service successfully by the time the appeal had come on. Like the respondent here, he had no prior relevant convictions. He was unemployed at the time of the offence. The court reluctantly concluded that there was no real alternative to a custodial sentence, that a sentence of 18 months imprisonment was warranted but that, in view of the completion of community service by the respondent, a sentence of 12 months should be imposed. The only significant difference between that case and this appears to be the extent of deliberation involved in Vickery, the act here being of a more spontaneous nature.

[18] In Melano this Court dismissed an Attorney's appeal against a 15 month sentence of imprisonment suspended after three months. This case also involved unlawful wounding with a beer glass. An altercation took place between the complainant and the respondent with each pushing the other. The respondent then struck the complainant on the right side of the head with a beer glass which he was then holding in his left hand. The glass shattered on impact causing lacerations to the side of his head. Up to that point, the facts are similar to those in this case. But the respondent then went on to strike a second blow with the beer glass to the complainant's head. The respondent, who was convicted after a trial, was 26 when the offence occurred. Like the respondent here he had a minor criminal history of no relevance, a good work record and a good general reputation evidenced by a number of favourable references. It was accepted by the Attorney that it was a less serious case than Vickery in that Vickery's conduct was more premeditated. On the other hand, of course, Vickery had expressed remorse and pleaded guilty. In addition, it was said, the sentence initially imposed in Vickery was so manifestly inadequate that it had to be set aside and the question was then what sentence should be imposed in lieu. Here, the sentence was held not to be manifestly inadequate.

[19] In Darwin this Court refused leave to appeal against an 18 month sentence of imprisonment with parole after six months for an offence of unlawful wounding with a beer glass. The offence in that case was plainly more serious than that in Melano or in the present case. The applicant struck the complainant on the head with a beer glass but then twisted it into his scalp. There does not appear to have been any provocation. The applicant had some criminal history but none involving acts of violence.

[20] In Maguire this Court refused leave to appeal against a sentence of two years imprisonment for unlawful wounding with a beer glass. The applicant claimed that she was paralytically drunk at the time and had no recollection of the incident. However the attack appears to have been of some ferocity. She demonstrated remorse by an early plea and by apologising to the complainant shortly after the incident. She had a minor criminal history but nothing of relevance.

[21] In Anders a sentence of imprisonment of one year to be served by way of intensive correction for the offence of unlawful wounding with a beer glass was increased on appeal to this Court to one of 18 months imprisonment. The respondent was a 22 year old with prior convictions of occasioning bodily harm and of unlawfully doing grievous bodily harm. However, he had not previously been sent to prison. He picked up and thrust an empty beer glass into the cheek of the complainant who had offered him no provocation. It smashed on impact. That it was a deliberate and intentional act was shown by the respondent's subsequent conduct where he told the police that the complainant deserved what he got. Both the circumstances of the case and the prior criminal history are much more serious than this case.

[22] A review of these cases shows, in our view, that this Court has considered general deterrence of such importance in cases of this kind as to require that a term of imprisonment be imposed even where, as in this case, the conduct was unpremeditated, the offender is young and he has not previously been sent to gaol. However, the respondent's conduct appears to be a little less serious than that in each of these cases and his previous good character, his plea of guilty and his remorse require considerable mitigation of the sentence which might otherwise be imposed.

[23] The sentence imposed below was, in our view manifestly inadequate. The offence is plainly of sufficient seriousness to justify a term of imprisonment. However the respondent, having been released, has already performed 58 hours of community service. In an Attorney's appeal such as this, that fact and the mitigating circumstances mentioned render this case sufficiently unusual to require that the imprisonment be wholly suspended.

[24] We would therefore allow the appeal, set aside the sentence imposed below and impose a sentence of 18 months imprisonment wholly suspended for a period of 18 months.