R v Holani [1994] QCA 447

Court of Appeal (Qld)|1994-09-15|Before: Pherson JA, Pincus JA, Cullinane J

McPHERSON JA: This is an appeal by the Attorney-General on the ground of the alleged inadequacy of the sentence imposed on the respondent upon his conviction, after a trial in the District Court, of a single count of unlawful assault occasioning bodily harm. The sentence in question was imprisonment for nine months suspended for two years. The learned sentencing Judge also made an order for the payment by the respondent of an amount of $1,000 by way of compensation pursuant to s.35 of the Penalties and Sentences Act.

The circumstances of the offence are that the complainant was at a nightclub on 28 December 1991. At about 4.30 a.m. he was sitting at a bench when the respondent approached him. The complainant leaned over to hear what the respondent was saying and the respondent told him he didn't like him and also that he could get any woman that he wanted. The respondent then bit the complainant's left ear and the complainant, not unnaturally, pulled away. The wound required some 16 to 18 stitches and the complainant has received treatment from a plastic surgeon in an attempt to repair the ear.

We have seen photographs of the complainant's ear and it is evident that a substantial portion of the upper and outer part of the ear was lost in this assault. There is a permanent disfigurement arising from the fact that that part of the ear is missing. The cosmetic defect may fairly be described as severe.

In circumstances like those outlined here, that is to say, a case of an assault which is quite unprovoked and results in a permanent injury of the kind described, one would ordinarily expect a prison sentence to follow unless there were compelling personal circumstances associated with the offender that dictated a different course.

The respondent is, according to all the evidence in this case, a strongly built man. He is a mature person of some 42 years of age. He has a number of previous convictions for offences of various kinds but specifically for offences of violence committed in New Zealand some time ago in 1974 and 1976. Since then there is no further record of a conviction for an offence like that although there are other more recent convictions down to 1984 or later.

The sentencing judge, in determining not to impose a sentence of imprisonment, had this to say about the matter. She said:

"I have decided that imprisonment is not an appropriate sentence."

She added that she found the decision to be a particularly difficult one because she thought the assault was very serious; but that, taking into account the respondent's personal circumstances and the principles set out in the Penalties and Sentences Act, she considered that sending the respondent to gaol would not achieve a desirable result for the community and might have disastrous consequences for him.

The provision of the Act to which Her Honour was referring was, as can be gathered from the preceding paragraph in her reasons, s.9(ii)(a), which refers to a sentence of imprisonment being imposed only as a last resort; and also that a sentence that allows the offender to stay in the community is preferable.

It is nevertheless not clear to me what it was about the respondent's personal circumstances that led to what I would view as a surprising result in a case involving an offence of this degree of seriousness.

I have mentioned his age and his previous criminal record. He is, so far as one can gather, a man with a family and he has, it may be inferred both from his record and from the circumstances proved in this case, a man who has or has had problems with alcohol. He has been involved over the last few years in competitive weight-lifting or body-building and wrestling, and has been overseas for that purpose.

It is not clear to my mind that any of these factors are so obviously in his favour as to justify the conclusion reached by the sentencing judge that the respondent's position would be disastrously affected if he received the sentence that ordinarily might be expected to follow in cases like this. In that regard we were referred to a number of decisions which suggest that prison sentences are common in the case of offences involving a serious degree of personal injury. I refer in particular to the decisions in Sharp (CA 170 of 1993); Gisu (242 of 1985) and Robinson (109 of 1994).

To my mind the sentencing discretion that was being exercised by the judge in this case must have miscarried to produce the surprisingly lenient sentence that was imposed here. It was said in response to submissions by counsel for the Attorney- General in this case that it was one in which there had been a considerable delay in bringing the respondent to trial and so in bringing the matter before this Court.

The offence was committed on 29 December 1991 and the appellant was convicted and sentenced in July 1994. It is, however, accepted that it was not the fault of the Crown that there was a delay in bringing the matter to trial. The respondent has evidently been tried on one occasion before that on which the present conviction was arrived at, and he has it seems also spent a good deal of time overseas during the period since the offence was committed.

In those circumstances, although a prison sentence would no doubt have the effect of uprooting him from the community into which he might be thought to have settled back, it is nevertheless not a basis for refusing now to deal with the respondent as in my opinion he should have been dealt with in the Court below.

The case is one in which a sentence of imprisonment should have been imposed. The appropriate sentencing range would, I am disposed to think, be between 12 months and either 18 months or 2 years for an offence of this degree of seriousness. Taking into account the fact that the compensation sum of $1,000 has already been paid, I would be disposed to impose a sentence of imprisonment for a term of 15 months in lieu of the suspended sentence that the judge below ordered against him.

On that footing, the proper order to be made in this case is that the appeal be allowed; the sentence of imprisonment for 9 months suspended for 2 years set aside; and in lieu that the respondent be sentenced to imprisonment for a period of 15 months. It will also be necessary, as we are informed, for a warrant to issue in this case.

McPHERSON JA: The order will be as I have stated it.

MR RAFTER: Would the Court be prepared to order that the warrant lie in the Registry for seven days to give the respondent the opportunity of surrendering himself?

McPHERSON JA: What do you say about that, Mr Bullock? I would ordinarily personally be in favour of that, but I gather you arrested him at an airport and some might think that in view of his tendency to travel he might easily go away again.

McPHERSON JA: We will simply order that a warrant issue for

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