R v Middleton and Johns [2006] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION: R v Middleton and Johns [2006] QCA 92

PARTIES: R v MIDDLETON, James (first applicant/appellant) / R v JOHNS, Martin Geoffrey (second applicant/appellant)

FILE NO/S: CA No 58 of 2006 / CA No 59 of 2006 / DC No 3559 of 2005

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 31 March 2006

DELIVERED AT: Brisbane

HEARING DATE: 23 March 2006

JUDGES: Williams JA, Jerrard JA and Fryberg J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1.Appeal allowed / 2.Vary sentence imposed on First Applicant by admitting him to probation from 31 March 2006 / 3.Vary sentence imposed on Second Applicant by admitting him to probation from 31 March 2006

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – whether the sentences were manifestly excessive – pleaded guilty to unlawful assault occasioning bodily harm when in company and when armed with a dangerous instrument – need for deterrence – three assailants sprayed complainant in face with “mace-like” substance before elbowing, kicking and punching the complainant in the face – offence occurred at night at the complainant’s residence – no factual finding by trial judge as to possible motives for attack – mitigating factors included guilty plea, youth, insignificant criminal history, reasonable work records, low probability of re-offending and one defendant suffered physical injury as a result of his misconduct – bail should not affect outcome of sentence application – since Crown did not plead that assailants entered the premises and carried out the assault for the purpose of recovering marijuana that the complainant was wrongfully withholding and the trial judge made no clear finding of fact on this point it is not appropriate to sentence on a more serious finding of fact / Penalties and Sentences Act 1992 (Qld), s 9(3) / R v Abednego [2004] QCA 377; CA No 248 of 2004, 12 October 2004, considered / R v Dempsey and Perks; ex parte Attorney-General (Qld) [1999] QCA 520; CA Nos 328 of 1999 and 329 of 1999, 17 December 1999, considered / R v George Bennett & Lindsey Bennett [1998] QCA 393; CA Nos 443 and 449 of 1998, 24 November 1998, considered / R v Haughton [1997] QCA 281; CA No 219 of 1997, 8 August 1997, considered / R v Hsu & Hsu [1998] QCA 257; CA Nos 199 and 200 of 1998, 7 August 1998, considered / R v Irving [2004] QCA 305; CA No 246 of 2004, 20 August 2004 / R v Nievandt [2000] QCA 224; CA No 414 of 1999, 9 June 2000, considered / R v Ryan; ex parte Attorney-General (Qld) [2000] QCA 401; CA No 187 of 2000, 28 September 2000, considered / R v Sargent, Price & Freier [2005] QCA 409; CA Nos 225 of 2005 and 226 of 2005 and 227 of 2005, 4 November 2005, considered / R v Sheret [2002] QCA 162; CA No 308 of 2001, 10 May 2002, considered / R v Walsh, Sayer & Thompson; ex parte Attorney-General (Qld) [1998] QCA 217, CA Nos 158 of 1998, 159 of 1998 and 159 of 1998, 28 July 1998, considered

COUNSEL: P J Davis SC and D Piggott for the applicants/appellants / M J Copley for the respondent

SOLICITORS: Ryan & Bosscher for the applicants/appellants / Director of Public Prosecutions (Queensland) for the respondent

1. WILLIAMS JA: I agree with the reasoning of Jerrard JA and with the orders he proposes.

2. JERRARD JA: On 3 March 2006 the applicants Mr James Middleton and Mr Martin Johns, and a Mr Graham, all pleaded guilty to a charge of unlawful assault occasioning bodily harm when in company and when armed with a dangerous instrument, that offence being committed on 20 March 2005. Mr Graham and Mr Johns were sentenced to six months imprisonment, to be followed by three years probation, and Mr Middleton to three months imprisonment, to be followed by three years probation. Each order included as a special term that the probationer receive and undergo any course deemed appropriate in relation to anger management. Mr Middleton and Mr Johns applied for leave to appeal those sentences, contending they were manifestly excessive. Mr Johns was 19 years old on 20 March 2005, and is now 20; Mr Middleton was then 22, and is now 23. Each has a very minor and irrelevant record of a prior appearance in a Magistrates Court, with no conviction being recorded.

The offence

3. The circumstances of the offence were that Mr Johns knew the complainant. Late in the night of 20 March 2005 Mr Johns, Mr Middleton, Mr Graham, a Mr Fenn, and a Mr Lucas travelled by car to the complainant’s residence at Gaythorne, all dressed in dark clothing. When they got out of the vehicle all had cloth covering their faces. Mr Lucas was also originally charged with the assault upon the complainant, but the Director discontinued proceedings against him. Proceedings against Mr Fenn are still on foot.

4. Mr Lucas, who also knew the complainant, had warned the complainant earlier at about 5.30pm that evening that the defendants were coming to his address, and the complainant had thereupon armed himself with a knife. The Crown told the learned sentencing judge that the warning by Mr Lucas included that the defendants were looking for the complainant because they thought he “had ripped off their money and drugs.”¹ At about 11.00pm the complainant heard a vehicle arrive, from which he thought either five or six males alighted. The complainant watched them through a hole in the fence.

5. His presence there must have been obvious, because after the visitors got out of the car, one of them sprayed the complainant in the face with either mace or capsicum spray, then one of them kicked the gate open, and all entered the yard of the residence. One of the visitors then assaulted the complainant by striking his head, and the complainant was again sprayed with the mace-like substance. He attempted to escape the group by running into a garage, and called out for help from two other people then staying at his residence. Then the group of males caught up with the complainant, and he was punched on the face and body. After that he was sprayed for a third time with the substance, and one or more of the visitors punched and kicked him. The complainant then produced the knife, with which he had earlier armed himself, and stabbed Mr Middleton, who was holding him. Mr Middleton called out “I’ve been stabbed”, and the others involved in the assault on the complainant then went to Mr Middleton’s assistance, and they all left the premises.

6. When police arrived at the complainant’s residence some 20 minutes later they saw the complainant had scratches and abrasions on his face, and he appeared to be in quite a deal of pain. The two other residents at those premises each described being awoken by the complainant’s screaming, and then both went outside and saw the complainant being beaten by between five to six males. At one stage the complainant had been pinned against one of the exterior walls of the building by two or three of those men, while one or more of the others searched the shed; and one was heard to say “It mustn’t be here”.²

[7] That statement apparently referred to a belief that something the visitors wanted, and which they came to get, was in the garage; when the complainant was being assaulted and before he produced his knife, one of the males had yelled at him “Why do you run into the garage? Is that where the stuff is?”³ The two co-residents at the premises, who at all relevant times were simply witnesses, described seeing the complainant being kicked, elbowed, and punched; and sprayed with a substance on at least one occasion. One of those witnesses also saw the blow by which the complainant struck Mr Middleton with the knife, although that witness did not then realise the complainant was holding a knife. He did hear Mr Middleton call out that he had been stabbed.

What the defendants told the police

[8] Mr Middleton was identified as an assailant by a report from the Royal Brisbane Hospital to the police, that a young male had been brought to the emergency department that evening suffering what appeared to be stab wounds to his back and right arm. The applicant Mr Johns and Mr Graham were located outside that emergency department, and they told the police the quite false story that a group of Aboriginal youths had attacked Mr Middleton earlier that evening at Red Hill, and that neither Mr Johns nor Mr Graham had any idea why. Those two men persisted in that explanation by pointing out to the police an area on Enoggera Terrace in Red Hill where the asserted attack had taken place, and it was then cordoned off by the police and treated as a crime scene. Subsequently police reviewed security footage from an adjacent 7-11 store, which revealed that nothing of the nature described had happened.

[9] The truth began to emerge around 10.30am on 21 March 2005, when Mr Johns and Mr Graham were interviewed separately by police. Mr Johns stated in his interview that he believed that the complainant had broken into his residence and stolen a camera and money from it. Mr Johns described how a plan was formed to organise people to go and recover the assertedly stolen camera, and further that Mr Johns had played the role of lookout only, and had heard Mr Middleton screaming that he had been stabbed. On his account, the recovery of the property had been intended to be entirely peaceful, with no weapons being used. He said nothing to the police about drugs.

[10] In respect of Mr Johns, the Crown case on the sentence was put as being that Mr Johns “was there for the initial part of the assault and then patrolled in the street outside.”⁴ Mr Johns told the police later in that interview that on the way to the complainant’s unit a gun had been produced in the back seat of the vehicle, to his astonishment. The gun was later located in Mr Graham’s car by the police.

[11] The co-offender Graham (not an applicant), also told the police that the reason for going to the complainant’s unit was a belief that the complainant had broken into the joint residence of Mr Graham and Mr Johns, and had stolen money and property. He too said nothing about drugs. Mr Middleton declined to be interviewed by police.

[12] The injuries the complainant suffered included abrasions to both cheeks, bruising to the outer left eye, abrasions to both sides of the chin, left knee, left ankle, left groin, left elbow, left upper arm, right chin and right upper back, tenderness to both sides of his ribs, sore eyes, and possible concussion. He was charged with unlawfully wounding Mr Middleton, but that charge was struck out by the Magistrate hearing the committal hearing, who ruled that the complainant had no case to answer.

Submissions on sentence

[13] The Crown’s submissions to the learned sentencing judge were that the defendants had armed themselves with the disabling spray. The Crown did not specifically dispute on the sentence the claim that two of the defendants believed the complainant had broken into their residence, and had taken property from it. The information the Crown put before the learned sentencing judge clearly implied some defendants believed the complainant had hidden at least some of what was stolen in the complainant’s shed. That information also implied that the property believed to be stolen included money and drugs, the latter previously unlawfully possessed by one or more of the defendants. That inference followed from what Mr Lucas had reportedly told the complainant as to the reason for the visit; from the absence of any suggestion that the defendants had sought police assistance, before the attack, to recover their stolen property or identify the thief; from the absence of any suggestion the complainant had sought police help when warned of the forthcoming visit in the terms described; from the absence of any prompt complaint by Mr Middleton about being stabbed; from the like silence from Mr Johns and Mr Graham about who stabbed Mr Middleton and why, and the false account given; from the fact the defendants searched for something which they assumed the complainant knew they wanted; and from the apparent absence of any complaint by any defendant about the theft of a camera. That combination of circumstances would justify the conclusion there was an attempt to recover something not lawfully possessed, a conclusion not specifically challenged in the submissions of any of the counsel for the defendants being sentenced. However, it was not specifically advanced by the Crown either, at the sentence; the learned judge was not asked by the Crown to make a finding, and sentence on the basis, that the defendants were after drugs and not simply trying to recover a camera. Accordingly, the applicants gave no evidence on sentence on the point.

[14] Mr Graham’s counsel submitted in the plea in mitigation that Mr Graham had admitted to police that he was at the complainant’s premises and had physically grabbed “one person” (presumably the complainant), and that there had been a break-in at Mr Graham’s residence, with some property stolen from it. Its nature was not identified. Counsel submitted that the unfortunate thing which occurred was that the defendants had taken the law into their own hands. Mr Graham’s counsel described a quite impressive work history to the learned sentencing judge, and submitted the appropriate order was either probation or an intensive correction order.

[15] The submissions made to the learned sentencing judge on behalf of the applicant Johns also requested that the judge impose probation and community service orders, or alternatively an intensive correction order. The submissions included that Mr Johns and the complainant, who were known to each other, would pool their money and purchase marijuana together, and counsel immediately thereafter informed the Court that “The basis that the Crown places before your Honour is not in dispute”. counsel then put before the Court a quite impressive work record, history of self- improvement, and of some public service, by Mr Johns. Counsel also told the learned judge that Mr Johns no longer smoked marijuana or associated with people who did. It appeared that Mr Johns’ counsel was linking, to some unspecified degree, Mr Johns’ involvement in cannabis consumption and purchases with the complainant, with the reason Mr Johns had gone to the premises.

[16] The submissions made on behalf of Mr Middleton likewise described an impressive work history, and that he had not been a resident of the house (occupied by Messrs Graham and Johns, which the complainant was believed to have burgled); counsel stated that Mr Middleton had been “informed by his friends and agreed to become part of a plan to recover property”,⁵ again not identified. That had resulted in Mr Middleton suffering stab wounds. His counsel also put forward material which showed that Mr Middleton had suffered both a chronic bowel disorder when younger, and from learning disabilities. Despite those obstacles, he was a gifted visual artist and had a job with a leading graphic print firm.

The sentencing remarks

[17] The learned sentencing judge accurately remarked that it was not clear at all what basis there might be for a belief by Mr Johns and Mr Graham that it was the complainant who had stolen either a digital camera, money, or drugs from them; and if the complainant had, it did not mean that a group of five or six could then take the law into their own hands and travel to the complainant’s residence for the purpose of unlawfully assaulting him. The judge referred to the pleas having included the aggravating circumstances of being in company, and being armed, and that the attack upon the complainant was committed by a number of the group who arrived, and it included the complainant being elbowed, kicked, punched, and sprayed; and that the use of the spray - more than once – had made the complainant a softer target. The learned judge also accurately observed that serious features of the offence included the strength of numbers of the invaders, the violence used, and that it was at the complainant’s own residence. Further, Mr Johns and Mr Graham had lied to the police and mislead them. The learned judge added, again accurately:

“The community is heartily sick of attacks of violence such as these. Not only has there been much community concern that there has been a number of attacks on streets, near homes or even home invasions before the Court, but further the Court of Appeal has made it clear that when you get such attacks of violence, then the deterrent element is clearly more than ordinarily important.”⁶

[18] The learned judge then referred to, as mitigating matters, the pleas of guilty by the applicants, the relative youth of each, the irrelevant or absent criminal history, the applicants’ reasonable work records, and the fact that Mr Middleton had already suffered physical injury as a result of his own misconduct. The learned judge also remarked that each of the applicants had been given what the judge called a very real opportunity in life. That is a matter which is undoubtedly relevant to the general improbability of the respective applicants re-offending in a similar manner, although the learned judge, in the sentencing remarks, somewhat reproved the applicants for offending after having those opportunities. The learned judge ultimately considered that sentences which combined orders for actual imprisonment with probation orders were the appropriate penalty.

Cases the applicant relied on

[19] The applicants’ written argument refers, appropriately enough, to their respective youth, and to the fact that each had sufficiently good prospects of living a law abiding life in the future to have warranted the sentencing judge looking for alternative sentences to actual imprisonment. Mr Davis SC, counsel for both applicants, referred this Court to a number of its earlier decisions, which Mr Davis SC submitted supported either making a probation order only, or else an intensive correction order, as the appropriate order in the cases of each applicant. He argued the earlier decisions showed that actual jail was manifestly excessive for each applicant, and showed an error of principle.

[20] Mr Davis SC principally referred to R v Dempsey and Perks; ex parte A-G [1999] QCA 520. In that case the two 17 year old applicants had been part of a group of five people who were all charged with assault occasioning bodily harm in company while armed. A large group of 17 year olds had been persuaded by Perks’ complaints to them, about being abused by homeless people in parks, to go on a rampage through a local park. They ran through it, yelling and banging weapons on posts to frighten the people then sleeping or in the park. Perks kicked one man, and Dempsey hit the same man with a baseball bat; Dempsey stopped doing that when told not to. The complainant suffered no long term ill effects. This Court did not disturb sentences of nine months imprisonment to be served by way of an intensive correction order. Those applicants were very young, and as the judge sentencing them said, their behaviour was a mixture of immaturity, stupidity and bravado. The current applicants can reasonably be expected to be more responsible for the consequences of their actions than 17 year olds are.

[21] Mr Davis SC also referred to R v Sheret [2002] QCA 162. That applicant, whose sentence of 12 months imprisonment for one count of assault occasioning bodily harm in company was varied by this Court to an order that it be served by way of an intensive correction order, had been convicted (after a trial) in which the Crown case was conducted on the basis that that applicant did not actually strike the complainant, but that a dark-haired man (never identified) did, with whom that applicant was acting in concert. That dark-haired man struck the complainant (an off duty police officer) about five blows around the head and face in an incident in a bar. The complainant suffered abrasions to the left side of his face and swelling to the lower part of his jaw; the applicant had initiated the incident with aggressive conduct and remarks in which that applicant had raised a grievance about the complainant’s work as a police officer. The fact that that applicant had not personally used force, and the short period of time in which the premeditation of the assault could apply, were two specific reasons given for the intensive correction order this Court made. Neither applies here.

[22] Mr Davis SC also referred to R v Walsh, Sayer & Thompson; ex parte Attorney-General (Qld) [1998] QCA 217, in which the Attorney-General successfully appealed. Orders for imprisonment for six months, wholly suspended for 12 months, were imposed on appeal, in lieu of fines ordered by the learned sentencing judge. That was a case in which an assault by those three applicants upon that complainant lasted at least two minutes, with Sayer holding the complainant down and repeatedly punching him in the head, and then kicking him; Walsh punching the complainant twice, Walsh and Sayer dragging the complainant along the footpath towards the car park; and Thompson then picking the inert complainant up and administering one punch. That complainant suffered a base skull fracture with a traumatic closed skull fracture leak, laceration to an eye socket necessitating five stiches, both eyes blackened and swollen to the point where the complainant could not open them, bruising to the neck, ear, back, and legs, was bed ridden for a week and could not return to work for a month, endured insomnia for three to four months, and still suffered persistent headaches and leakage from his nose as at the date of sentence. The Crown charged only assault occasioning bodily harm, despite those injuries.

[23] The one matter that saved those applicants from actual imprisonment on the Attorney-General’s appeal was that the complainant at the outset had offered provocation; that was the express reason the learned sentencing judge did not order imprisonment. This Court held that the practical effect of the provocation diminished as the melee spilled outside the hotel, and as time passed. I observe that in the present application, the complainant offered no relevant provocation to either Mr Middleton, Mr Johns, or any of the other three men. Further, the statement by de Jersey CJ, Thomas and Derrington JJ in that case, (modified for the facts), applies here:

“Ordinarily a cowardly vicious attack such as occurred outside this hotel, with three men aggressively attacking another, punching, kicking and dragging him about, while at a stage he was likely unconscious, conceding that they inflicted bodily injury, would warrant a term of imprisonment, even where the offenders were first offenders, and even if wholly suspended. This is because violence associated with hotels, especially by groups of men towards lone victims, must be strongly deterred.”⁷

[24] Mr Davis SC also referred to R v Nievandt [2000] QCA 224. In that matter the 37 year old applicant was convicted after a trial of assault occasioning bodily harm in company, and sentenced to 12 months imprisonment suspended after four months. That applicant’s son had insulted the complainant’s wife when in the complainant’s shop, and the complainant had seized the applicant’s son by the throat, and told him never to speak to the complainant’s wife like that again. The son had said that he was going to get “My father to get you”, and half an hour later that applicant and his son entered the shop, where the applicant chose to challenge the complainant about the earlier event, which had clearly been reported to the applicant. The applicant struck the complainant before the latter had an opportunity to defend himself, and thereafter, while the applicant and complainant essentially held each other, the applicant’s son struck the applicant a number of blows. Eventually the complainant released the applicant; Thomas JA described the applicant’s actions as a misguided response to a complaint by his son.

[25] Even with those circumstances far more favourable to that applicant than those in this matter, this Court would have dismissed the appeal against sentence, were it not for the fact that that applicant had been granted bail after some 36 days in custody, and the majority of this Court considered that it would not be justified in returning that applicant to prison after what this Court described as a substantial period at liberty. The sentence was accordingly suspended after those 36 days. I note in these applications that the applicant Johns obtained bail on 14 March 2006, while the applicant Middleton has remained in custody. Both applications have been brought on promptly for hearing, and in principle the grant of bail to Mr Johns should not effect the outcome, for the reasons given by Thomas JA in Nievandt – if it did, there would be an unwarranted incentive for applicants to seek bail pending appeals. Thomas JA, nevertheless, accepted there were marginal cases in which the period of imprisonment served was so close to the appropriate sentence that the inconvenience of returning an appellant to custody justified an appellate court in fixing the time served as the time to be served. Irrespective of what may be the ultimate outcome, it is important applicants for bail find out when a sentence application will be heard, and make sure the judge hearing the bail application is accurately informed.

[26] Mr Davis SC also relied on R v George Bennett & Lindsey Bennett [1998] QCA 393, in which those applicants were found guilty after a trial of one count of grievous bodily harm. George Bennett was 19 when sentenced and 18 at the time of his offence, and Lindsay Bennett 18 when sentenced but 16 at the time of the offence. Lindsay Bennett was therefore subject to the provisions of the Juvenile Justice Act 1992 (Qld). This Court allowed the appeals against sentence, and set aside George Bennett’s sentence of two years imprisonment suspended after four months, substituted a sentence of 18 months imprisonment suspended forthwith, and overturned Lindsay Bennett’s sentence of eight months detention to be released after serving 50 percent of that period, and instead ordered there be no conviction, that Lindsay Bennett be detained for eight months, but immediately released by way of an immediate release order on condition that he participate in a program as recommended in a pre-sentence report.

[27] Those were lenient orders at first glance, but the reasons for judgment of the President record that the respondent Crown conceded there were exceptional circumstances in the case which would justify the applicants not serving any actual period of detention, despite the serious aspects of the offence. They came from a very good family, had excellent prospects of rehabilitation and were unlikely to re-offend, did not represent a danger to the community, had no prior convictions, were very young, the incident was not premeditated and was an isolated event out of character which turned very much on the facts as they arose on the evening of the occurrence, the victim had fully recovered, and the facts of the case placed it towards the lower end of the scale of serious ones for grievous bodily harm. Further, the respondent conceded that the offence was more comparable to the offences of assault occasioning bodily with circumstances of aggravation. Thomas JA added that there were outstanding character references, relevant to the prospect of those applicants leading useful lives which might be unnecessarily threatened by a period of imprisonment, and that that was an important sentencing consideration, namely that it was undesirable to introduce a young person who had committed a single offence to the negative influences and dangers of a period in prison.

[28] Those remarks state relevant sentencing principles, but others include the necessity to deter conduct such as that engaged in by the applicants in this case, who visited when armed and whose use of violence was premeditated. The purpose may have been to recover marijuana Mr Johns thought the complainant was wrongfully withholding from Mr Johns, perhaps in the complainant’s shed, and not simply to recover a camera Mr Johns believed the complainant had stolen; but that was not the basis on which the Crown asked the judge to pass sentence. That was fortunate for the applicants, because matters in which a number of persons, acting in company and when armed, assault another person and cause bodily harm for purposes related to unlawful possession of drugs are cases in which it is difficult to establish that a term of actual imprisonment was a manifestly excessive penalty. It is not appropriate for this Court to sentence now on a more severe finding of fact, because the applicants did not have the opportunity in this Court to give evidence about their motives for the visit.

Cases on which the Crown relied

[29] The Crown referred this Court to its earlier decisions in R v Irving [2004] QCA 305 and R v Abednego [2004] QCA 377. In Irving that 19 year old applicant had pleaded guilty to a count of assault occasioning bodily harm, a count of wilful damage to property, and a count of common assault. He was sentenced to serve six months imprisonment before being released on probation for two years. He had no relevant previous convictions and was described as remorseful; he was 18 when the offences were committed.

[30] His offending conduct consisted of himself and a companion (a co-offender who also pleaded guilty) insulting the two complainants, who were strangers to the applicant and his co-offender, calling the complainants “poofters”, and damaging a vehicle the complaints were using. The applicant Irving then kicked one complainant who had gotten out of the vehicle, and who tried to dissuade Mr Irving from kicking the car. When the second complainant attempted to restrain Mr Irving from kicking the first, Mr Irving wrestled with that second complainant, and ended up sitting on that complainant’s chest and punching him repeatedly, as well as banging that complainant’s face on the concrete. While doing so he repeatedly said words to the effect “I’m going to kill you, you dirty poofter. I’m going to kill you, faggot.”

[31] The first complainant came to the second complainant’s aid, and Mr Irving’s co-offender then intervened and struck that first complainant on the jaw and the back of the head, rendering that complainant unconscious. Mr Irving’s victim (of his attack with punches) suffered lacerations to the face and lips, bruising about the left and right eyes, bruising and swelling to the face, left ear, neck, right shoulder, hip, and back of head, and abrasions to the forehead, left side of his face, upper chest and both shoulders. His nose was fractured and had to be reset by surgical procedure, and he suffered post traumatic stress disorder.

[32] McPherson JA wrote in Irving that that essentially inoffensive man had been attacked for no better reason than that Mr Irving believed that person to be a homosexual, a motive that simply aggravated Mr Irving’s conduct. The attacks by those two offenders were described as severe, violent, quite unprovoked, and protracted assaults committed in a public place at night.

[33] Specifically, McPherson JA wrote that it was a mistake to suppose that Mr Irving’s youth clothed him with some form of immunity from a sentence which imposed a term of imprisonment. His Honour specifically referred to the point made by the President in R v Ryan; ex parte Attorney-General (Qld) [2000] QCA 401, namely that the application of the principle that for young offenders a sentence of imprisonment was a penalty of last resort did not apply when a court was sentencing a youthful offender for an offence that involved the use of violence against another person (s 9(3) of the Penalties and Sentences Act 1992 (Qld)). I note that in Irving that applicant’s plea to assault occasioning bodily harm did not admit the aggravating circumstances of either being in company, or being armed.

[34] In R v Abednego [2004] QCA 377 that 21 year old applicant was 20 years old at the time he committed the offence to which he pleaded guilty, of assault occasioning bodily harm while armed and in company. He had no previous criminal history and a good employment record. The circumstances acted on by the learned sentencing judge in his case, and by this Court on the appeal, were that the person with whom he was in company when he offended, his friend Jay Lacey, had had an argument with the complainant in that case about one and a half hours before Mr Abednego assaulted that complainant. The circumstances of the argument were that Mr Lacey had drawn to the complainant’s attention that the complainant’s children were playing “chicken” in the street with Mr Lacey’s car as Mr Lacey drove along the street, and one of the complainant’s children had then spat on the car. Instead of remonstrating with his children, that complainant abused Mr Lacey. Mr Lacey told Mr Abednego about that, and they decided to visit the complainant, in an attempt to try and smooth things over, so that there would be no problems between Mr Lacey and that complainant. Mr Lacey was concerned about a poor relationship between himself and that complainant because Mr Lacey frequented the area to visit his girlfriend, who lived nearby to the complainant’s residence.

[35] Mr Abednego was sentenced on the basis that at all times the purpose of the visit had been placatory and not aggressive. The fact that led to Mr Abednego ultimately receiving (from this Court) a sentence of six months imprisonment, suspended after he had served three months of that term, was that Mr Abednego armed himself with part of a metal steering wheel lock prior to getting out of his car and entering the complainant’s yard. This Court and the sentencing judge accepted that his purpose in doing that was not with the intention of using it in an aggressive manner, but because Mr Abednego was not a very good fighter, and had wanted to deter any potential aggression towards himself. That is, he was armed for a protective rather than an aggressive purpose.

[36] What occurred was that Mr Abednego became agitated when he and Mr Lacey were outside the complainant’s door. Perhaps unsurprisingly, when the complainant manifested some aggression after opening the door (including taking off his jacket and offering to fight), the result was that Mr Abednego hit that complainant two blows with the wheel lock, causing him to fall to the ground. Then Mr Abednego kicked him. The complainant suffered a fracture to his left mandible, the loss of some teeth, and a minor closed head injury.

[37] Jones J observed:

“There can be no doubt that ordinarily (in the case of) a person who arms himself or herself to go to the residence of another person for the purpose of assaulting another that a term of imprisonment with time actually served would be considered. Where, however, a weapon is picked up without thought or where if taken is used instinctively or defensively then other considerations apply.”⁸

Jones J cited examples of the application of those sentencing principles (R v Haughton [1997] QCA 281 and R v Hsu & Hsu [1998] QCA 257), and also referred to the decision in R v Irving and the observations therein from McPherson JA, as to the applicant’s youth not clothing him with immunity from a term of actual custody.

[38] In R v Sargent, Price and Freier [2005] QCA 409 the President referred to this Court’s earlier decision in R v Walsh, Sayer & Thompson; ex parte A-G (Qld), cited earlier. The President observed in R v Sergeant that it must be noted that the offences in R v Walsh, Sayer & Thompson had occurred before the increased penalties apposite to offences of assault occasioning bodily harm and in company came into force.

Conclusions

[39] Those decisions make clear that even for offenders aged 18, this Court will uphold sentences resulting in actual custody for first offenders with no prior convictions who plead guilty to assault occasioning bodily harm, where there are aggravating circumstances. Those can include the motive for the assault, its severity, or the circumstances of being armed and in company. While actual imprisonment is not mandated, it will ordinarily be within the proper exercise of a sentencing discretion.

[40] In my opinion the applicants have not succeeded in showing that the learned sentencing judge erred in the orders requiring that terms of actual imprisonment be served. However, I respectfully disagree with the learned sentencing judge that it was proper to distinguish between the sentences imposed on Mr Johns and Mr Middleton. That is simply because at age 19 when he offended, Mr Johns was significantly younger than Mr Middleton at 22, and in the absence of a specific finding that there was an overall unlawful purpose related to Mr Johns’ dealings with the complainant and cannabis, Mr Johns might reasonably have expected some further leniency because of that extra degree of youthfulness.

[41] Mr Davis SC is also correct in his submission that both these applicants have good records of prior employment and of taking advantage of opportunities they have had, and good prospects for lives without any further serious offending behaviour; and that the learned judge erred in not treating that aspect as relevant to a likely response by each of them to a more lenient sentence, and as evidence their offending aggression was out of character. The six month term imposed on Mr Johns was too high for an applicant of his age with those sound future prospects, when there was no finding of an overall unlawful purpose. In those circumstances the term imposed was longer than that which was necessary for the otherwise appropriately denunciatory sentence. While an order for some actual imprisonment was clearly justified, the term Mr Middleton will have served when this judgment is pronounced is sufficient in his case; and it follows that in Mr Johns’ matter, his is one of those described by Thomas JA in Nievandt as a marginal case where this Court should avoid returning a young applicant to prison for a trivial period.

[42] I would allow both appeals, and in each case vary the sentence imposed by ordering that each applicant be admitted to probation on the date these orders are pronounced.

[43] FRYBERG J: The circumstances giving rise to this application are fully set out in the reasons for judgment of Jerrard JA.

[44] I see little reason to differentiate between the two applicants apart from a small difference between their ages and the fact that the applicant Middleton sustained knife wounds in the attack.

[45] With considerable dissatisfaction I agree with his Honour that it is not appropriate for this Court to sentence on the basis that the purpose of the gang raid in which the applicants participated was to steal or recover marijuana. The evidence supports the inference that this was the purpose. However the sentencing judge made no finding on the point, probably because he was not asked to do so by the Crown. Had the matter been raised at first instance, it could not be said that it would constitute a denial of procedural justice for us to make such a finding now. It was not so raised. Although I consider it fanciful to suppose that either applicant would have given evidence had the matter been raised, the fact remains that they were entitled to know what the Crown alleged against them in advance and to conduct their cases accordingly. It would be unfair to permit a change to the basis relied on by the Crown at this stage; and the respondent did not suggest otherwise.

[46] The question which has troubled me is whether, in the light of the mitigating factors described by Jerrard JA, the overall criminality of the offending put the imposition of actual imprisonment within the range of sentences available on a proper exercise of discretion. If it did, the sentences imposed were not, in my judgment, manifestly excessive. I have come to the conclusion that it did not. The complainant's injuries were described by the sentencing judge as “less serious than one usually gets on a matter of this nature but they are of course not minor”. The complainant himself was, as his Honour put it, “no paragon of virtue”. The weapon which was used (mace or something similar) was calculated to temporarily disable rather than permanently injure. The applicants broke off the assault when things started to get out of hand by reason of the complainant's use of a knife. They did not attempt to use a gun which they had in their car, although the evidence is unclear as to whether there was any ammunition for that gun.

[47] Actual imprisonment not being within the range of available sentences, it follows that the sentences made by his Honour were manifestly excessive. Were I sentencing at first instance I would be inclined toward the imposition of intensive corrections orders. Now, given that the applicants have served some time in prison, I am content to resentence on the basis that each should serve imprisonment for the time already spent in custody and then be admitted to probation for three years. That result can be achieved simply by varying the period of pre-probation imprisonment in each case in the manner proposed by Jerrard JA.

[48] Finally, I agree with his Honour’s observation regarding bail applications pending appeal. Such applications should be refused unless the judge is given reliable information, sourced from this Court, as to the likely date of hearing of the appeal. (I do not mean to suggest that it was otherwise in this case.) It is unnecessary for me to comment further on that aspect of the matter.

Footnotes

1. At AR 6. ↩

2. At AR 11. ↩

3. At AR 10. ↩

4. At AR 14. ↩

5. At AR 22. ↩

6. At AR 30. ↩

7. R v Walsh, Sayer & Thompson; ex parte Attorney-General (Qld) [1998] QCA 217 at p 7. ↩

8. R v Abednego [2004] QCA 377 at para [18]. ↩