R v Mladenovic ; ex parte A-G

The complainants in the unlawful wounding counts were treated at the Princess Alexandra Hospital. The first complainant suffered a laceration to his lower lip, a laceration to the lower left hand side of his face adjacent to his lip and a chipped tooth; each wound was sutured. The second complainant received a right sided laceration to the scalp with surrounding haematoma which was repaired with three stitches. The third complainant received a cut to his lip which was swollen for a couple of days. I have viewed the photographs of the injuries received in the unlawful wounding counts which were tendered at sentence. The physical injuries received by the complainants were relatively minor but all concerned are fortunate that more serious consequences did not flow from the respondent's reckless actions. Victim impact statements tendered in respect of all three complainants demonstrate that, whilst they have each physically recovered, they also suffered significant emotional effects from the attacks.

At about 6.00 am on 18 July 2004 the offenders returned to the service station with clothing wrapped around their heads so that only their eyes were exposed. They took some pies from the hot food stand. Shorten said to the attendant "We deserve this. This is owed to us". They left without paying (count 6 - stealing).

The next day police attended the respondent's home and took him to the police station where he participated in a police interview. He said he had been drinking alcohol with friends including Shorten but that he did not recall leaving the house or being involved in an altercation. He had a few unexplained bumps on his head which he did not recall receiving. He did not remember walking into the service station and taking the pies. He agreed it was possible that he may have left the house that night but he had no recollection, inferentially because of his intoxication.

Police then attended Shorten's home and took him to the police station where he was interviewed. Shorten agreed that he attended the service station with the respondent and that they were involved in an altercation with the complainants during which he and the respondent armed themselves with broken bottles. He told police he did not witness the wounding of the first two complainants but was aware that they had been stabbed. He said the group asked him and the respondent to put down their bottles and fight. The confrontation ended when the complainants entered the service station store. Shorten said he stayed with the respondent during the altercation in case he needed help. Afterwards, he and the respondent continued drinking in a nearby park. They decided to return to the service station and steal the pies. Shorten's plea of guilty to one count of unlawful wounding and stealing was accepted on the basis that he was involved in the initial antagonism resulting in the first count of unlawful wounding but that the common purpose did not extend beyond that offence and the stealing of the pies. This is not entirely consistent with the respondent's guilty plea to assault occasioning bodily harm in company (count 5).

The offenders were committed for trial after a full hearing on 31 May 2005 and an indictment was presented in the District Court on 25 October 2005. The respondent indicated he would enter a plea of guilty 10 days before the first trial listing. His counsel explained that the respondent's initial legal representatives were not experienced in criminal law; as soon as he and his instructing solicitors were briefed, they organized a conference with the respondent and the court was informed that the respondent would plead guilty. Shorten informed the court of his plea of guilty shortly before the trial when the prosecution accepted a submission as to the appropriate charges.

The prosecutor at sentence contended that, as the respondent had broken the bottles and armed himself with them when he initiated the altercation with the complainants and was the primary aggressor, a sentence of two to three years imprisonment with some actual custody before suspension should be imposed. She submitted that Shorten's involvement was less than the respondent's so that a fully suspended sentence of 12 months imprisonment was appropriate in his case, despite his greater age and more significant criminal history.

Shorten's counsel at sentence emphasized his client's difficult upbringing. At the time of the offences Shorten had moved in with the respondent and was drinking heavily. By the time of sentence he was in employment as a bricklayer and had a sound employment history. Shorten acknowledged an alcohol problem but he had not consumed alcohol for six months prior to sentence. Shorten expressed remorse and insight into his alcoholism and the seriousness of the offences. He had co‑operated and pleaded guilty. Shorten's counsel repeated the prosecution's contention that a proper distinction could be drawn between Shorten and the respondent so that Shorten's sentence of imprisonment should be fully suspended.

The respondent's counsel tendered some favourable character references which, like the community correctional officer's report, supported his contention that the respondent had rehabilitated himself since last offending. Defence counsel emphasized the respondent's own difficult upbringing and that he had a supportive family. His mother was present at court and her letter to the judge, also supporting the contention that the respondent had rehabilitated himself, was tendered. The respondent was unemployed at the time of the offences but by the time of sentence he had obtained a carpentry apprenticeship. His counsel emphasized that he was but 18 years old when he committed the offences and that he had pleaded guilty. Whilst accepting that his client had to be sentenced to some term of imprisonment, counsel ultimately submitted that a sentence of 18 months imprisonment with a short period of actual custody or a 12 month intensive correction order was appropriate because of his great remorse, rehabilitative prospects and particularly his young age when he committed the offences.

The learned primary judge in sentencing the respondent referred to the serious aspects of his offending and observed that such conduct, even from young offenders, often resulted in the serving of an actual period of imprisonment in custody. Because the respondent was but 18 years old at the time of the offences, had no like criminal history and had rehabilitated himself by abstaining from reoffending and illicit drugs and obtaining employment as an apprentice, the judge determined that he should be ordered to serve his 12 months imprisonment by way of an intensive correction order.

Both counsel for the appellant and counsel for the respondent agree that, despite McHugh J's observations in York v The Queen,¹ the appellant must establish error in the exercise of the sentencing judge's discretion (here, that the sentence is manifestly inadequate) before this Court can intervene and re-exercise the sentencing discretion. This approach is consistent with the observations of Callinan and Heydon JJ in York² and with White J's observations in R v Dullroy and Yates; ex parte A-G (Qld).³

In contending the respondent's sentence is manifestly inadequate counsel for the appellant emphasizes that the respondent deliberately broke the bottles to use them as weapons and that this made the offences especially serious and akin to wounding with a knife so that, despite the mitigating circumstances, a period of actual imprisonment had to be imposed. He maintains that Shorten's offending can be properly distinguished from the respondent's so that parity is not an issue here. He submits that an effective sentence of two and a half years imprisonment suspended after 10 months with a three year operational period should be substituted.

The appellant particularly relies on the case of R v Toohey.⁴ Toohey was sentenced to two years imprisonment for unlawful wounding. He was 24 years old and had some criminal history which showed him to be a frequent enterer of other persons' homes without excuse, although he had no convictions for violent offences. He arrived at the Tully Hotel at opening time (10.00 am) and because of previous problems with intoxication was refused entry. He returned half an hour later. He was again refused entry and the police were called for a second time. He again left but once more returned at 12.30 pm. The complainant asked him for a third time to leave and he disappeared for about 10 minutes before returning yet again. The complainant called police who indicated they would not be able to come for some time. The complainant then told Toohey to leave the hotel for a fourth time and escorted him to the rear entrance. Toohey smashed a 10 oz glass on a stair, retaining the base with its shard, and returned to the entrance of the hotel where he screamed and yelled abuse. He attempted to re-enter the hotel. The complainant ordered him out. He lunged at the complainant and swung the broken glass at him. The complainant raised his arm to protect himself. The glass injured his left arm. The complainant then punched Toohey twice, to make him back off. The complainant suffered four deep cuts to the upper left arm which required numerous sutures. He was also treated for a broken finger. Thomas JA, in an extempore judgment, wrongly noted the maximum penalty for the offence of unlawful wounding had been increased by the legislature from seven to 14 years. His Honour found that a review of comparable cases demonstrated that the range of sentence for these types of offences was between one and three years imprisonment; it was an aggravating factor that the complainant publican had done all he could to deter Toohey's persistent offensive conduct; the publican deserved protection from the courts in his efforts to run an orderly public house; in those circumstances, the two year term of imprisonment was not manifestly excessive despite Toohey's youth and plea of guilty. McPherson JA, whilst recognizing the sentence was higher than he would have imposed, agreed with Thomas JA. Holmes J, after an extensive review of comparable cases, concluded that the sentence was excessive and would have substituted a term of 18 months imprisonment suspended after six months with an operational period of three years.

Toohey is more serious than the present case: he was older and had a more serious criminal history than the respondent. Because of these differing features; because there is rarely only one appropriate sentence but rather an appropriate range; because of this Court's misconception as to the maximum penalty, the fact that the sentence imposed on Toohey was not manifestly excessive does not mean that this sentence was manifestly inadequate.

With the consent of Mr M J Copley for the appellant, Mr Rafter SC on behalf of the respondent tendered a report from the respondent's community correctional officer prepared on the day of the appeal hearing. This indicated that the respondent's response to supervision since sentence had been satisfactory: he is punctual and polite; despite his work commitments of up to six days per week, he has since 5 March 2006 worked every second Sunday and has presently completed 30½ hours community service. He remains in full time employment as an apprentice. He continues to comply with all the requirements of his concurrent probation order. This information is relevant for this Court's consideration: see R v Dullroy and Yates; ex parte A*‑G (Qld);⁵R v Welch; ex parte A-G (Qld)*;⁶*R v Hoffman; exparte A-G*;⁷R v Hays; ex parte A-G (Qld).⁸

In support of his contention that the mitigating factors (the respondent's youth, limited criminal history, good prospects of rehabilitation and plea of guilty) supported the sentence imposed, Mr Rafter relied on R v Dempsey and Perks; ex parte A-G (Qld)⁹ and R v Middleton and Johns.¹⁰ In Dempsey and Perks the offenders were part of a group of five young men armed with a baseball bat who attacked a group of homeless people in a park. All the victims escaped except for the unfortunate complainant who received significant but not serious injuries and without long term effects. Dempsey and Perks were 17 years old and had a limited criminal history. This Court considered that a nine month intensive correction order was within the exercise of a sound sentencing discretion.

In Middleton and Johns, the offenders attacked the complainant in the yard of his home by spraying him with a mace-like substance; the complainant received abrasions to his cheeks, both sides of the chin, left knee, left ankle, left groin, left elbow, left upper arm and right upper back, bruising to the outer left eye, tender ribs, sore eyes and possible concussion. Johns, who was 19 at the time of the offending, and Middleton, who was then 22, had pleaded guilty and had only minor and irrelevant criminal histories. They were initially sentenced to three years probation with Middleton having to first serve three months imprisonment and Johns six months imprisonment. This Court allowed their appeals against sentence and released them on probation from the date of delivery of the Court's reasons, a few weeks after the sentences were initially imposed.

These cases involved offences of assault occasioning bodily harm in company whilst armed rather than, as here, unlawful wounding. There is nevertheless some force in Mr Rafter's contention that those cases have some comparability to the present case. First, the maximum penalty for the offence of unlawful wounding is but seven years whilst the maximum penalty for the offence of assault occasioning bodily harm whilst armed and in company is 10 years. Second, the injuries received in the present case by the complainants in the offences of unlawful wounding do not appear to have been significantly more serious than those received by the complainants in Dempsey and Perks and Middleton and Johns.

The respondent's conduct was extraordinarily anti-social and warranted a firm deterrent sentence. Members of the community expect to be able to use their streets and public spaces, even at 3.30 am, without the risk of assault from drunken aggressive louts armed with broken bottles. As the primary judge recognized in her sentencing remarks, it would certainly have been well within a sound exercise of discretion to order the respondent to serve a short period of actual custody before release into the community, despite the considerable mitigating circumstances. The question for this Court is whether it was outside the exercise of a sound sentencing discretion to order that the respondent serve his 12 month sentence of imprisonment by way of an intensive correction order.

The Penalties and Sentences Act 1992 (Qld) ("the Act") s 9(2) provides that:

I would dismiss the appeal.

WHITE J: I have read the reasons of the President dismissing this appeal by the Attorney-General and agree with them. The President describes the sentence imposed below as “exceptional” and the features which make it “within range” although at the very lower end. I would like to add that had the complainants, who seem to have behaved with considerable restraint and prudence, sustained more serious physical injuries I would have thought that a term of imprisonment actually to be served would have been the only appropriate sentence. The appalling conduct of the respondent in arming himself with broken bottles as weapons, crossing the road and deliberately inviting a physical altercation required strong condemnation.

When a young person appears to be on the path to rehabilitation there is a long-held reluctance on the part of judges to send that person to prison to mix with hardened criminals and to put at real risk that rehabilitation. Byrne J’s comment (with which Davies JA agreed) in R v Lovell [1999] 2 Qd R 79 at 83 on the effect of the 1997 amendments to the Penalties and Sentences Act 1992 (Qld) in s 9(3) should be kept in mind

[1999] QCA 443; CA No 271 of 1999, 29 October 1999, [3], [23]. ↩

Above, [3], [64]. ↩

Above, [41]. ↩

The Act, s 127. ↩