R v. Kite [1999] QCA 162 (6 May 1999)

Court of Appeal (Qld)|1999-05-06|Before: Act J, Murdo P, Moynihan J, Atkinson J

THE PRESIDENT: The applicant seeks leave to appeal against a sentence imposed upon her in the Southport District Court on 15 February 1999 of three months imprisonment and two years probation for an offence of assault occasioning bodily harm.

The applicant is 19 years old. She has extensive prior convictions as a juvenile for unlawfully taking shop goods away; assault occasioning bodily harm for which she was placed on 100 hours community service; unlawful use of a motor vehicle for which she was given 12 months probation and four counts of unlawful use or possession of a motor vehicle, stealing, credit card fraud and entering a premises with intent to commit an indictable offence for which she was sentenced to six months detention.

She was released from that detention on 22 January 1998 and was supervised in the community under that order until 23 March 1998. This offence occurred on 16 April 1998, less than a month after that supervision was completed.

As an adult she has been dealt with for a minor drug offence in the Southport Magistrates Court on 24 September 1998. Whilst this was not a prior conviction it is relevant in that the criminal record indicates it occurred on 3 September ]998. She was therefore on bail for the present offence at that time: this is relevant to the submissions made as to her rehabilitation.

The facts of the offence are as follows: the complainant, a 15-year-old girl, was in Surfers Paradise with her girlfriend aged 16. They had left an under 18s dance party at about 1 a.m. when they walked past the applicant and her girlfriend, Osborne.

Osborne called out to them and the two chased the complainant and her friend. The applicant assaulted the complainant whilst Osborne assaulted the complainant's friend.

The applicant hit the complainant several times with a closed first to the head and tried to knee her. Most of the punches struck the complainant's hands with which she was covering her face. The complainant escaped and obtained assistance whilst Osborne continued to assault the friend.

The applicant told police in a record of interview on 8 May 1998 that she assaulted the complainant because she gave them a dirty look as they walked past. The applicant expressed some remorse in the interview but later referred to the complainant and her friend as sluts.

Osborne, a 16 year old with no relevant prior history, was sentenced without conviction to 160 hours community service and ordered to pay $1,000 compensation under the Juvenile Justice Act 1992 for her assault on the friend of the complainant in this case.

It is not submitted that there should be close parity with Osborne's sentence in the circumstances or that parity principles warrant interference with the sentence here.

The applicant at sentence had a seven-month-old child whom she supported by way of a supporting parents' pension. She has returned to school to further her education. The applicant committed the offence after drinking heavily but since the offence has moderated her drinking and returned to school.

This submission, as I have pointed out, loses some force when it is remembered that a subsequent minor drug offence was committed whilst she was on bail.

Fortunately the only apparent injury to the complainant was a small bruise over the left eye.

The learned sentencing Judge noted the prevalence of offences of this kind in Surfers Paradise such that people are reluctant to venture out at night. He was understandably concerned about the applicant's prior convictions, especially as the assault occasioning bodily harm was, like this offence, committed upon a young female complainant.

His Honour took into account the applicant's support of a young child and her attempts to improve herself. This of course must be tempered by the subsequent offence committed whilst on bail for this offence.

This offence was undoubtedly serious in that the drunken applicant attacked a young woman without any provocation or reason. She had a prior conviction for a like offence and had only recently been released from custody as a juvenile in respect of significant property offences.

As the offence involved violence, section 9(3) of the Penalties and Sentences Act 1992 ("the Act") requires that the principles in section 9(2)(a) of the Act, that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable, has no application.

Nevertheless the age, antecedents and attempts at rehabilitation of the applicant remain relevant under section 9(4)(g) and (h) of the Act. The fact that the complainant was not seriously injured is also relevant under section 9(4)(c), (d) and (e) of the Act.

His Honour however has considered all these relevant criteria in determining the sentence. Whilst a sentence involving an intensive correctional order or a fully suspended sentence may have been within range in this case, I am not satisfied that the sentence imposed by the learned sentencing Judge was not within the appropriate range or was in any way manifestly excessive or involved any error on his part.

THE PRESIDENT: The order is the application for leave to appeal against sentence is refused. Is it necessary to order a bench warrant, Mr Heaton?

THE PRESIDENT: I order a bench warrant issue for the arrest of the applicant.

MR DEVEREAUX: Would the Court consider ordering that the warrant lie in the Registry for seven days?

MR DEVEREAUX: Any number of days so that the applicant can organise her affairs, that's all.

MOYNIHAN J: I understand she might need time to organise her affairs.

THE PRESIDENT: The warrant is to lie in the Registry for seven days.

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