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[2011] QCA 218
General information, not legal advice.
Court of Appeal (Qld)
2011-09-02
Fraser and White JJA, and Philippides J, Separate, reasons for judgment of each member of the Court, each concurring as to the
Original judgment source is linked above.
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the applicant pleaded guilty to one count of wilful damage to property (count one) and one count of serious assault (count two) - where the applicant was a resident of Palm Island - where the applicant spat in the face of a police officer - where the applicant was sentenced to 14 days imprisonment on count one and six months imprisonment on count two to be suspended after serving two months imprisonment with an operational period of two years - where the applicant claimed that the sentencing judge failed to consider mitigating factors in his favour including Aboriginality and disadvantage - whether the sentence was manifestly excessive
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
R v Denyer [2009] QCA 53, considered
R v Fernando (1992) 76 A Crim R 58, cited
R v Hamilton [2006] QCA 122, considered
R v Holden [2006] QCA 416, cited
R v Juric [2003] QCA 132, cited
R v King (2008) 179 A Crim R 600; [2008] QCA 1, considered
R v KU; ex parte A-G (Qld) (No 2) [2011] 1 Qd R 439; [2008] QCA 154, considered
R v Laskus [1996] QCA 120, considered
R v Neivandt [2000] QCA 224, considered
R v Poynter, Norman and Parker, ex parte A-G (Qld) [2006] QCA 517, considered
R v Reuben [2001] QCA 322, considered
R v Taylor & Napatali; Ex parte Attorney-General of Queensland (1999) 106 A Crim R 578; [1999] QCA 323, cited
Director of Public Prosecutions (Queensland) for the respondent
[1] FRASER JA: I agree with the reasons for judgment of White JA and the orders proposed by her Honour.
[2] WHITE JA: On 3 June 2011 the applicant pleaded guilty in the District Court at Townsville to one count of wilful damage to property and one count of serious assault. He was sentenced to 14 days imprisonment on count 1 and six months' imprisonment on count 2. The sentences were to be served concurrently. The sentence for count 2 was ordered to be suspended after serving two months imprisonment with an operational period of two years. Three days between 1 June and 3 June were declared as time served under the sentence.
[3] On 21 June 2011 the applicant was released on bail pending the determination of his appeal conditioned on his residing at an address on Palm Island and that he submit himself into custody at the Palm Island Police Station as advised by the Registry of this Court. The applicant has thus fully served the sentence imposed for count 1 and three weeks of the two months' actual imprisonment on count 2.
[4] The applicant contends that in all the circumstances his sentence in respect of count 2 was manifestly excessive in that the sentencing judge failed to take into account mitigating factors in his favour. Mr R East, who appeared for the applicant, submitted that an appropriate sentence would be an intensive correction order for four months to take account of the three weeks' imprisonment already served.
[5] The applicant was born on 8 February 1991. His offending conduct occurred on 7 November 2009 when he was 18 years and eight months. He was aged 20 years and three months when sentenced. He has a limited criminal history
[6] The sentence proceeded on a statement of facts. At about 3.30 am on 7 November 2009 the applicant's mother, who resided in a house owned by the Palm Island Aboriginal Shire Council[1], was awoken by an altercation between the applicant and another son. The applicant was "yelling and screaming". He picked up some rocks from the garden and threw them at the house. One hit the front glass sliding door, smashing the glass. This constituted count 1. The mother walked to the hospital and asked a nurse to call the police. Two constables came to the hospital and spoke with the mother who made a complaint. They returned with her to her house. A short time later the applicant was seen to be walking up the street towards his mother's house and was pointed out by her to the police officers.[2]
[7] The applicant was arrested for wilful damage and cautioned. He was not intoxicated. He was escorted to the police vehicle and asked to get inside. The applicant "continuously refused". One of the constables forced him into the back of the vehicle. The applicant hung his legs outside so that the door could not be closed. The constable bent down to pick up the applicant's legs to move them into the vehicle. He looked up at the applicant who tilted his head back and spat into the constable's face. The constable felt saliva spray over his entire facial area, going into his mouth and his eyes. He stepped back, feeling blinded from the amount of saliva, and the applicant yelled "how did you like that boy". The other constable put the applicant into the vehicle and he was transported to the Palm Island police station. The applicant declined to be interviewed.
[8] The assaulted constable wiped his face with antibacterial gel and received treatment at the Palm Island Hospital. Blood tests were carried out. He then undertook five further tests over six months at the Forensic Medical Unit at the Townsville General Hospital. Because of the risks of contamination, the constable could not engage in sexual intimacy with his partner until cleared of infection. Over the six month period the constable was "extremely concerned"[3] that he had contracted Hepatitis B. At the time of the sentence hearing he continued to be greatly concerned when dealing with offenders.
[9] The applicant had six entries on his criminal history when he came to be sentenced. There were three breaches of bail undertakings. The first occurred on 12 May 2008 when no conviction was recorded and he was not further punished. There was no information about the charge which led to this bail. The other two related to his bail undertakings given in respect of these offences. He was dealt with by a $250 fine in respect of the first on 17 December 2009 in the Townsville Magistrates Court. In respect of the second, he was fined $400 in the Palm Island Magistrates Court on 8 June 2010 with a fine option order of 16 hours' community service for failure to pay. On 3 November 2008 he was convicted of contravening a direction or requirement which occurred on 26 September 2008 - the applicant had failed to provide identifying particulars to police. On 19 September 2008 he was charged with public nuisance and convicted in the Townsville Magistrates Court on 9 February 2009. The applicant was involved in a disturbance carrying a star picket above his shoulders, entering peoples' yards and verbally threatening residents. He was fined $300. On 19 November 2010 he was before the Palm Island Magistrates Court for breach of the fine option order made on 8 June 2010. He had completed none of the 16 hours' community service. The order was revoked.
[10] This matter proceeded as a full hand up committal on 23 June 2010. It was listed for sentence on 10 May 2011 but the applicant failed to attend court and a bench warrant was issued. He was arrested on 1 June and remanded in custody until sentence on 3 June.
[11] The prosecutor sought a sentence in the range of four to nine months imprisonment. She submitted:
"Spitting is a premeditated and degrading offence which holds an aspect of contempt for authority. It is a serious offence in that there is the risk of disease. The police officer who received the spittle in his eye has to deal with a lot of uncertainty in waiting for test results as well as the inconvenience of having to undergo months of testing."[4]
Defence counsel sought a term of imprisonment to be served by way of an intensive correction order for three months. He told the sentencing judge that the applicant was in his early teens living on Palm Island during the unrest in 2004 and saw the destruction of property by residents. It was against that background and what was said to be disrespect for police on Palm Island that counsel asked his Honour to approach the sentence. Counsel was careful to make no complaint about the conduct of the police officers. Nor did he submit that the applicant was fearful of what might happen to him if he got into the vehicle.
[12] On the issue of remorse the applicant's counsel submitted:
"... my learned friend criticised this young man for not writing a written apology. He can't read or write, your Honour. He can't do something that is beyond his means. He did try to seek out the police officer, it seems, after receiving some advice. I'm not suggesting he sought the officer out beforehand but apparently the officer was no longer on Palm Island at the time. So he - he didn't apologise but at least after he spoke to the solicitor from ATSILS, he did seek out the officer and was told the officer was no longer residing on that - on Palm Island ...".[5]
It appears from his counsel's submission[6] that although the applicant had been informed that he could approach the justice group on Palm Island to provide a report to the court that did not occur. The applicant was said to drink alcohol only occasionally but drank too much when he did. He had worked one day a week in the Green Corps in a community program but otherwise was not employed and spent his time fishing. The applicant's parents separated when he was young. He has a good relationship with each. His father was from Charters Towers and, although not clear, likely lives there.
[13] The prosecutor referred to King[7], Laskus[8] and Hamilton[9] as offering guidance on the range and approach to such an assault. Defence counsel additionally referred to Reuben[10], Holden[11] and R v Taylor & Napatali[12] where an intensive correction order imposed for armed robbery on young offenders was not disturbed on appeal.
[14] Mr East properly mentioned to the court at the commencement of his submissions that the applicant had left his bail address on Palm Island without notice or permission and was possibly in Charters Towers.
[15] Mr East accepted that count 2 involved an offence of violence so that, by virtue of s 9(3), the provisions of s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld)[13] do not apply. He accepted the statement of principle enunciated by de Jersey CJ in King:[14]
"One begins with the proposition that those who treat a police officer in this way [spitting in the face] should ordinarily expect to be imprisoned, meaning actual imprisonment. Police officers carry out duties which are usually onerous and often dangerous. It is abhorrent that a police office responsibly going about his or her business be subject to the indignity and risk of being spat upon. The risk in contemporary society relates obviously to communicable disease. Related to the indignity is the display of contempt for civil authority which will often be involved in these incidents. An appropriate level of deterrence will in such cases usually be secured only through actual imprisonment of the offender."
"... it may generally be correct to say that, in the cases of assault on a police officer, in most cases the appropriate remedy is one of a custodial term. It is certainly not the only appropriate penalty and Courts should not feel bound to impose that penalty in every case."
[16] The complaint about the sentence is not the duration nor that imprisonment was ordered but that to serve actual imprisonment failed, relevantly, to take into account the mitigating factors. Mr East submitted that general and personal deterrence and the rehabilitation of the applicant would better be achieved by an intensive correction order which would permit the applicant to be shown, in an appropriate manner, that holding police in contempt and behaving as he did was unacceptable.
[17] Mr East submitted that the sentencing judge did not appropriately take into account the applicant's Aboriginality and the community from which he came. In failing to do so no, or no appropriate, regard was had to the applicant's social and economically disadvantaged background - well recognised mitigating factors.[17] He submitted further,
(i) had lived all his life on Palm Island, the largest Aboriginal community in Queensland and a place synonymous with indigenous disadvantage
(ii) did not have a good education, indeed, he could not read and write
(iii) had never held a job other than one day a week doing CDEP, otherwise spending his time fishing and binge drinking
(iv) as a young lad he had witnessed many of the adult members of his community erupt into extreme violence following the death in police custody of another community member. Inevitably, for some Palm Islanders, an atmosphere of fear, mistrust and disrespect for the police followed. It was likely that a teenager growing up in such an atmosphere, apparently without a father figure, might not appreciate the calamity of a single event should not colour the relationship between himself and the police called to serve and protect the community of which he was a part. That understanding was more likely to be developed under the guidance of a community based order than the jail yard of Stuart Prison."[18]
[18] Mr East submitted that the court could take (iv) above into account as "any other relevant circumstance" pursuant to s 9(2)(r) of the Penalties and Sentences Act. Section 9(2)(p) provides that if an offender is an Aboriginal or Torres Strait Islander person any submissions made by a representative of the community justice group in the offender's community that are relevant to sentencing the offender must be taken into account by the sentencing court. There is no other reference to indigenous considerations. As mentioned, although the possibility had apparently been raised with the applicant, there was no report from the Palm Island Community Justice Group.
[19] There are a number of speculative factual matters asserted in (iv) as quoted above. Mr East referred to the psychological repercussions of the Palm Island riots as a factor in the sentences in R v Poynter, Norman and Parker; ex parte A-G (Qld).[19] Those offenders were, themselves, participants in that riotous conduct. Both the Chief Justice[20] and the President[21] affirmed the need to uphold lawful authority. Her Honour said:
"Those participating in the riots were directly attacking lawful authority in a community which, as the primary judge recognized, was especially in need of a dedicated and effective police presence to maintain the rule of law for the benefit of Palm Islanders."
It might be accepted that as a 13 year old, witnessing the unrest on the island and its aftermath, the applicant was likely to be influenced by it. However, it is not unimportant that it was his mother who sought the assistance of the police at about 3.30 am to deal with the applicant's violent conduct.
[20] Very little was related below of the applicant's daily life - with whom he lived; whether he visited his father; what other male relatives had an influence on him on Palm Island; why he had no education, why he had breached bail, why he had not performed the ordered community service, and any positive characteristics.
[21] While social, economic and educational deprivation are factors which rightly might inform a sentencing court, it is contrary to accepted sentencing principles to discriminate in favour or against an offender solely on the ground of Aboriginality or membership of any other race or group. In Neal v The Queen[22] Brennan J said:[23]
"The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group."
"... in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender."[26]
"The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group, but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group."[27]
[22] Of factors of disadvantage which might tend to ameliorate a sentence this court said in KU:[28]
"Relevant personal disadvantage must be established by evidence relevant to the particular offender even if that disadvantage arises by reason of the offender's membership of a particular ethnic group. To adopt an approach which proceeds on the basis that the courts may take judicial notice of the supposed effects of a community's dysfunction upon all or any of its members, is to engage in the kind of stereotyping which was deprecated by this and other Australian courts in the cases to which we have referred. This approach diminishes the dignity of individual defendants by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of observing the standards of decent behaviour set by law."
[23] In very short sentencing remarks the primary judge pointed out community abhorrence at the crime of spitting on the police and that general and personal deterrence were important in sentencing for this offence. His Honour said:
"I note that you're young and that your criminal history is not a history of serious offending. I note that your parents were separated when you were young and that there should be some hope for you because of your young age and your relatively minor criminal record.
Nonetheless, it's my view that the considerations of deterrence require that you serve actual prison time and I sentence you to six months' imprisonment ... [to] be suspended after you have served two months' imprisonment for an operational period of two years."[29]
[24] There are a number of authorities dealing with serious assault by spitting, most of which were referred to the sentencing judge. In Laskus[30] the applicant was a 19 year old pregnant woman with no previous convictions who was sentenced to four months imprisonment suspended after serving two months with an operational period of 12 months for assaulting a police officer. She had gone to the police station endeavouring to get possession of money which police had confiscated from the applicant's nephew suspected of being stolen. The applicant contended that the money was hers but was unable to persuade the police officer to hand it to her. She lost control and spat in his face, saliva hitting him around the mouth, nose and eyes. She entered a plea of guilty at an early stage but otherwise displayed no regret or apology. The Chief Justice described the assault as "of a particularly offensive kind" which was intended to have that character. He noted the need to impose appropriate deterrence against such conduct and uphold the authority of the police. Shepherdson J agreed with the dismissal of the application. Byrne J, dissenting, would have dealt with the matter by a community based order.
[25] In Hamilton[31] the applicant was sentenced to imprisonment for nine months suspended after serving three months with an operational period of 12 months in circumstances which were more serious than the present. Police, after repeated warnings, arrested the applicant's younger brother for creating a public nuisance. The applicant swung a number of punches at one of the police officers and as he was being placed in the police van spat saliva into one of the police officer's eyes and mouth resulting in momentary blindness. He then yelled abuse not dissimilar to the words spoken by this applicant. A disease test order was obtained for the police officer and his blood tests came back clear. That applicant had some relevant criminal history on a par to this applicant's. The applicant was diagnosed as having a major depressive disorder and panic disorder, although there was no evidence that those conditions contributed to the offences. He demonstrated no remorse. His application for leave to appeal was unsuccessful.
[26] The applicant in King[32] was heavily intoxicated when he was forcibly removed from a bar at Airlie Beach and placed on the ground. After a scuffle police officers were called. As he was being placed in the police vehicle he was asked to put his body further inside so that the door could be closed. He said, "You want to know what I think of that idea" and gestured for one of the police officers to approach him. As he did so that applicant spat blood and phlegm onto the police officer's face and into his mouth. He spat over the arm and shirt of the officer on a number of occasions. The police officer was not infected but had to endure a six month wait for the confirmation of the applicant's assurances, conveyed to him in a written apology a few days later, that he did not have any communicable disease. At the time the applicant was suffering from a pathological bereavement disorder following a family tragedy. The applicant entered an early plea and had no relevant prior criminal history. He was sentenced to six months imprisonment suspended after three months for an operational period of two years. In reducing the sentence to one of four months imprisonment suspended after two months for two years the Chief Justice said:
"In cases like this, it is often the fact of imprisonment rather than the particular duration of the term imposed which secures the necessary deterrence. In light of the cases to which I have referred I consider the penalty imposed on the applicant was manifestly excessive and should be reduced. The early pleas of guilty, the early written apology with the assurance of no communicable disease, the applicant's previously unblemished character, and his state of depression at the time, combine to warrant significant mitigation in this particular case."
"The result I have proposed would not exclude a six month term following a plea of guilty in other cases, but it is that particular aggregation of mitigating circumstances which I consider puts six months out of range here."
[27] The events in Reuben[34] occurred on Palm Island. The applicant pleaded guilty to one count of serious assault which was biting a police officer in the execution of his duty, two counts of wilful damage which involved throwing rocks through a window and three summary offences of threatening words and breach of a domestic violence order. That applicant was aged 27 with a minor, prior criminal history which involved unlawful damage to property and an unlawful assault with no convictions being recorded in either case and a second assault for which he was fined and ordered to pay compensation. He was sentenced to eight months imprisonment suspended after three months with an operational period of two years in respect of the serious assault which was the biting offence. The court reduced the sentence to one of three months imprisonment wholly suspended with an operational period of 18 months, having taken into account that the applicant had spent 15 days in custody before being released on appeal bail. The events which gave rise to the charges arose out of a domestic violence altercation when the applicant was substantially affected by alcohol. Police officers arrived and were threatened through their car. They tackled the applicant and a struggle ensued. The applicant bit one of the officers on the knee leaving teeth marks but the skin was not broken. He was taken into custody and when finally discharged some hours later when he was sober apologised for his conduct which was accepted as an expression of genuine remorse. The applicant was in a stable relationship with a young family, he had a reasonable work history with some prospects of continuing employment. His criminal history had ceased about six years previously. The court noted the risk of infection from biting and also noted the analogy between biting and spitting offences involving a police officer. Davies JA added:
"... but there are, of course, differences, one of which is that spitting can often be a premeditated or calculated offence whereas biting, certainly in this situation, was not premeditated. Spitting has a degrading aspect to it and it also has the aspect of contempt shown for the authority of the police, at least in some cases."
The court regarded as very important the spontaneous expression of remorse. Had the applicant not already spent some time in custody the offence would have warranted a custodial term in actual custody. His Honour observed:
"It still is an important factor in cases of this kind that the authority of the police should not be undermined and it is important, I think, to recognise that by imposing a sentence of imprisonment ..."[35]
[28] The sentence imposed in Reuben was described by Williams JA in Juric[36] "as towards the lower end of the appropriate range".[37] Juric was a case which did concern spitting on a police officer but involved other serious assaults and the offender had an extensive criminal history so that it is not fruitful to consider it further.
[29] These authorities demonstrate that a sentence of actual imprisonment was well within range and is the usual outcome absent some very particular circumstances for a serious assault on a police officer constituted by deliberate spitting on the person. A period of imprisonment of six months to serve two where there is a plea of guilty and a young offender has a limited criminal history is not inconsistent with those decisions. The issue is whether the primary judge erred in not making more of the mitigating circumstances of youth, potential for rehabilitation and social disadvantage. As mentioned, the sentencing judge's reasons were very brief. Section 10 of the Penalties and Sentences Act requires a court imposing a sentence of imprisonment, including a suspended sentence of imprisonment, to state in open court its reasons for the sentence. By s 10(2) a sentence is not invalid merely because of the failure to state reasons as required, but failure to do so may be considered on appeal, if an appeal against sentence is made.
[30] Although his Honour did not mention it, quite clearly he was aware that the applicant had entered a plea of guilty. The sentence imposed is consistent with it having been taken into account as obliged by s 13 of the Penalties and Sentences Act. His Honour must also be taken to have understood the social circumstances, in a general sense, prevailing on Palm Island. He heard, briefly, that the applicant was uneducated and had no work. But otherwise he had little to inform the exercise of his sentencing discretion than the authorities to which he had been referred. It seems that his Honour thought that there was "hope" for the applicant because of his youth and relatively minor criminal record. He did not, however, explain how that rehabilitation might take place (apart from two months in prison) when there was no information about guidance which might put him on the right path. His Honour, puzzlingly, ordered the sentence to be suspended rather than fixing a parole release date pursuant to s 160B. It might be expected that his Honour would have explained why he chose that course and how it might aid the applicant's rehabilitation. Section 144(2) of the Penalties and Sentences Act provides that a court may order the whole or part of a term of imprisonment to be suspended but "only if the court is satisfied that it is appropriate to do so in the circumstances". There is no indication as to why his Honour could have been satisfied that it was appropriate here. An operational period of two years without any guidance at all put the applicant at risk of being returned to custody. In suspending the sentence without explanation the sentencing judge fell into error. The sentencing discretion must, then, be exercised by this court.
[31] An intensive correction order has been pressed by Mr East. But it must be doubted that the applicant would "report to, and receive visits from, an authorised corrective services officer at least twice in each week that the order is in force"[38]; "take part in counselling and satisfactorily attend other programs as directed by the court or an authorised corrective services officer"[39]; and "perform in a satisfactory way community service that an authorised corrective services officer directs ..."[40]; and, if directed, reside at community residential facilities and notify every change of place of residence. Not only has this applicant demonstrated deliberate contempt for the authority of the police by the offence to which he pleaded guilty but he has disregarded numerous orders of the court relating to his bail undertakings. He did not carry out any community service under the earlier fine option order. When confronted with the date for his sentence he did not appear before the court. He has now absented himself in defiance of his bail conditions pending this appeal. There could be no confidence that the applicant would abide by the more intensive regime of the intensive correction order. He has not expressed any remorse for his offending, even through his counsel. Given the calculated defiance and contempt of the applicant it is appropriate that he serve a term of actual imprisonment.
[32] Mr East raised, in the event the application were refused, the appropriateness of returning the applicant to custody for a little over five weeks. In Laskus the applicant had been granted appeal bail although it is not made clear how much, if any, of the two month term of imprisonment had been served. A warrant issued for her apprehension. In Hamilton the applicant had also been granted appeal bail and a warrant issued for his arrest after his unsuccessful application for leave to appeal. His sentence included suspension after three months and, again, it is not clear how much of that time had actually been served. In King the sentence was reduced from six months to four months imprisonment to be suspended after two months. That applicant had remained in custody and had only a week left of the two months after the judgment of this court. It was submitted that he should be released immediately. The Chief Justice said:
"We were urged for the applicant to produce a result which would lead to the applicant's immediate release - that is, after having served some seven weeks' imprisonment, but in my view principle dictates that he should serve two months and it would be irresponsibly expedient to accede to that request made on his behalf."[41]
In Neivandt[42] the applicant had been released on bail after serving 36 days of a 12 month sentence which was to be suspended after four months with an operational period for two years. Thomas JA said that he would not regard the factor of sending an applicant back to gaol subsequent to his release pending appeal as a reason for allowing the appeal although in an appropriate case the court might not return an applicant to prison for a trivial period.
[33] In the more recent case of Denyer[43] the applicant was sentenced to 18 months imprisonment with the fixed parole release date after serving three months of that sentence. Nineteen days pre-sentence custody were declared as time served. He was released on appeal bail after serving nine days of his sentence. It was submitted that the court would not be justified in returning him to prison to serve the remainder of his term, relying on Neivandt. Keane JA, with whom Muir and Fraser JJA agreed, said:
"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..."[44].
His Honour accepted that in marginal cases where the period already served was 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 Denyer the balance of the term was not regarded as trivial.
[34] As Thomas JA observed in Neivandt the grant of bail pending appeal is to avoid the risk, in an arguable case, that a short term of imprisonment will have been wholly or substantially served before an appeal can be heard. An applicant is aware that if the appeal fails he or she will have to serve the rest of the term interrupted by appeal bail. That must have been apparent to this applicant as it was a condition of his appeal bail that he appear and surrender himself into custody as advised by the registry of this court.
[35] I would sentence the applicant to a term of imprisonment of six months in respect of count 2. The applicant should be released on parole after he has served two months of that sentence. Section 160B of the Penalties and Sentences Act requires the court to fix a date for release on parole. Since this applicant is on appeal bail it is not possible to do that immediately with precision but the contemplated order is that the applicant be released on parole 40 days after returning to custody. Between 1 and 21 June the applicant was in custody in respect of these matters and no others. A declaration should be made that 20 days were days served under this sentence. A warrant should issue for the arrest of the applicant to lie in the Registry for seven days. The sentence in respect to count 1 is as pronounced by the primary judge.
3. Adjourn the pronouncement of further orders to a date to be fixed.
4. Issue a warrant for the arrest of the appellant to lie in the Registry for seven days.
[37] PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of White JA. I agree with those reasons and the orders proposed
[2] This fact was in the complainant police officer's statement read to the court by defence counsel.
[13] The principle that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows an offender to stay in the community is preferable does not apply when the offence involves the use of violence against another person.
[17] Applicant's written submissions para 11.8.
[18] Applicant's written submissions para 11.8.
R
McLean [2011] QCA 218
(1982) 149 CLR 305