R v Mallard [1998] QCA 59

Court of Appeal (Qld)|1998-04-17|Before: Before Fitzgerald P, Davies J, Dowsett J, Mr J

On 3 December 1997, the appellant White was acquitted of unlawful wounding but convicted of assault occasioning bodily harm. He was sentenced to imprisonment for two months. His brother, the applicant Mallard, was convicted of common assault, and was also sentenced to two months' imprisonment. Convictions were recorded. White has appealed against his conviction and applied for leave to appeal against his sentence. Mallard has applied for leave to appeal against his sentence.

The incidents which gave rise to the charges of which White and Mallard were convicted occurred on 16 November 1996. At that time, White was aged 24 years and Mallard was aged 20 years. Neither had any relevant prior criminal offences. Each was released on bail almost immediately after he was sentenced.

White's appeal against conviction was effectively resolved in the course of argument before this Court. There was evidence that he punched Williams, but no evidence that his blow or blows occasioned bodily harm to Williams. White's appeal against conviction should be allowed to the extent that the conviction should be reduced to one of common assault.

It is convenient to deal first with the sentence imposed upon Mallard. It was submitted that his sentence was manifestly excessive because of his youth, previous good character and future prospects. He has completed an external course through a university at Alice Springs, and is attending university this year. At the time of sentence, he was also expecting to commence employment in a private art gallery at Alice Springs. He has a keen interest in Aboriginal art and culture, and his long term plans are to travel overseas promoting that culture. A recorded conviction will significantly affect his career.

It was further submitted that the sentencing judge erred in that he failed to have "sufficient regard to the nature of the offence and the absence of any injury to the [victim] as a result". Importantly, it was pointed out that, under sub-s. 9(4) of the Penalties and Sentences Act 1992,[1] a custodial sentence should not have been imposed because it could not be said that no other sentence was appropriate in the circumstances. That was effectively conceded in this Court by the prosecutor. It has previously been held by this Court that the section as it existed at the time of the offence must be applied, and that it must be given effect when the prosecution acknowledges that a non-custodial sentence could have been imposed.

Mallard's application for leave to appeal against sentence should therefore be granted, his appeal allowed and his sentence set aside. He has consented to probation, and an order should be made that he be placed on probation for a period of one year on the usual terms and conditions. The Court was informed that arrangements are in place which would permit him to undergo probation in the Northern Territory, and he should report to an authorised person at Alice Springs. No conviction should be recorded.

Although White is older than Mallard, there is little otherwise to distinguish them for the purposes of sentencing. White is in a stable de facto relationship and they have a young daughter with a second child due soon. He is in well-paid fulltime employment.

In the circumstances, provided that he consents to probation, the same orders should be made in respect of White's application for leave to appeal against sentence as are appropriate for Mallard, save that White should report to an authorised officer of the Corrective Services Commission at Brisbane. If White does not consent to probation, it will be necessary to reconsider his application for leave to appeal against sentence.

One further matter should be noted. White and Mallard not only have the benefit of sub-s. 9(4) of the Penalties and Sentences Act as it existed at the time of the offences, but there are also a number of other personal features, including their youth and absence of prior criminal convictions, which have attracted leniency on this occasion. Further, although Williams was injured in the altercation, the injuries cannot be attributed to either White or Mallard. However, it should not be thought that attacks on security officers in the performance of their duties will be generally met with only light sentences. Certainly, if the person or persons who struck Williams with the bottle and/or broken glass were convicted, a custodial sentence would almost certainly be inevitable.

In summary, White's appeal against conviction should be allowed, his conviction of assault occasioning bodily harm should be set aside, and a verdict of guilty of common assault substituted. Both applications for leave to appeal against sentence should be granted, both appeals allowed and the sentences of imprisonment set aside. In lieu, each of White and Mallard should be placed on probation for a period of one year. Convictions should not be recorded.

[1] Sub-s. 9(4) has been amended since the time of the offences by White and Mallard.

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