R v Nagy [2003] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION: R v Nagy [2003] QCA 175

PARTIES: R v NAGY, Henry (applicant)

FILE NO/S: CA No 24 of 2003 / DC No 3051 of 2002 / DC No 3436 of 2002

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 2 May 2003

DELIVERED AT: Brisbane

HEARING DATE: 9 April 2003

JUDGES: Williams and Jerrard JJA and Muir J / Separate reasons for judgment of each member of the Court, Williams JA and Muir J agreeing as to the orders made, Jerrard JA dissenting in part

ORDERS: 1.Grant leave to appeal and allow the appeal; / 2.Set aside the sentences imposed below for the offences of assault occasioning bodily harm in company on 25 December 2001 and the two counts of assault occasioning bodily harm in company whilst armed on 11 February 2002; / 3.In lieu thereof impose sentences as follows: / 4.Declare that the applicant has been in custody solely in relation to these matters from 24 April 2002 until 2 May 2003 a period of 374 days and that is declared to be time already served under the sentence

CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – SENTENCES ON TWO OR MORE COUNTS – where applicant convicted on a number of counts of various offences including two counts of assault occasioning bodily harm whilst armed and in company – where serious criminal history – whether sentencing for a number of counts can be approached by fixing a term of imprisonment which reflects the overall criminality of the conduct / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where no injuries to first complainant of lasting significance – where assault in company while on probation – where applicant young and pled guilty – where no remorse – whether sentence manifestly excessive / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRENCE – where second assault in company committed against a railway guard and a train driver – whether this justified a heavier sentence in order to deter similar attacks / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – DISCRIMINATION BETWEEN CO-OFFENDERS – where two of applicant’s co-offenders were dealt with subsequently to him – where co-offenders received more lenient sentences – where different personal circumstances – whether a marked disparity which gives rise to a justifiable sense of grievance / Corrective Services Act 2000 (Qld), s 135(2)(c) / Penalties and Sentences Act 1992 (Qld), s 161C / Cameron v The Queen (2002) 76 ALJR 382, cited / Griffiths v The Queen (1989) 167 CLR 372, followed / Kellerman v Pecko [1998] 1 Qd R 419, followed / Lowe v The Queen (1984) 154 CLR 606, followed / Pearce v The Queen (1998) 194 CLR 610, considered / Postiglione v The Queen (1997) 189 CLR 295 / R v Crofts [1999] 1 Qd R 386, discussed / R v Gilles; ex parte A-G (Qld) [2002] 1 Qd R 404, considered / R v Hammoud (2000-2001) 118 A Crim R 66, discussed / R v Kazakoff; ex parte A-G (Qld) [1998] QCA 459; CA No 236 of 1998, 27 August 1998, considered / R v Marshall [1994] QCA 235; CA No 12 of 1994, 28 June 1994, cited / R v O'Grady; ex parte A-G (Qld) [2003] QCA 137; CA No 35 of 2003, 28 March 2003, cited / R v Papoulias [1998] VR 858, considered / R v Sheppard [2000] QCA 57; CA No 332 of 1999, 7 March 2000, considered / R v Taylor, Reed and Minogue, SC Victoria, unreported, 22 June 1989, considered / R v Williams; ex parte A-G (Qld) [1997] QCA 476; CA No 385 of 1997, 21 November 1997 considered

COUNSEL: A W Moynihan for the applicant / M J Copley for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The applicant pleaded guilty on 19 December 2002 to one count of unlawful use of a motor vehicle (3 January 1999), one count of break and enter premises and steal (19 March, 2001), one count of assault occasioning bodily harm in company (25 December 2002), and two counts of assault occasioning bodily harm whilst armed and in company (11 February, 2002). He was sentenced on 10 January 2003 to five years imprisonment on each of the assault counts, and four months imprisonment on each of the other counts; all the sentences were to be served concurrently and there was a recommendation for post-prison community based release after serving two years. A declaration was made that he had spent 262 days in pre-sentence custody.

The application for leave to appeal against sentence is concerned primarily with the head sentence of five years imprisonment. The principal submissions advanced by counsel for the applicant were:

(i)The head sentence of five years imprisonment was outside the established range for each of the three counts of assault;

(ii)There was a manifest disparity between the sentences imposed on the applicant’s co-offenders with respect to the two counts of assault occasioning bodily harm in company whilst armed and the sentence of five years imprisonment imposed on the applicant;

(iii)The learned sentencing judge failed to make an adequate reduction in the sentence for the applicant’s pleas of guilty.

The applicant was born on 8 November 1982. He was sentenced to four months imprisonment and three years probation on 9 October 2001 for numerous break and enter offences and other offences committed as a juvenile. He was released from custody on 20 December 2001.

The offence of assault occasioning bodily harm in company was committed on the fourth day after his release from prison and whilst he was on probation pursuant to the order of 9 October 2001.

The complainant (Bulger) was a 20 year old male who was waiting on the platform of the Bald Hills station at about 10.30 pm on the night of Christmas Day. The complainant and his girlfriend (Barr) were approached by a group of five men (including the applicant) and one woman. The applicant spoke to the complainant, obviously looking for trouble, but the complainant was able to divert attention by referring to the fact that he had been at school with one of the applicant’s companions. That other person shook the complainant’s hand and the group walked away. Another male person entered the platform and was immediately surrounded by the applicant and his companions. The complainant became concerned for the safety of that other person and moved towards him. The other person then rode his bicycle off the platform. The applicant and his group then again approached the complainant and his girlfriend.

Initially there was a dispute before the learned sentencing judge as to who punched the complainant first and as to the extent of the applicant’s involvement. The Crown prosecutor said:

“The accused confronted the complainant and hit him. They exchanged blows until the accused’s companions held the complainant’s arms while the accused and others hit him in the head. The complainant attempted to cover himself up to avoid injury and was kicked in the back. This caused him to fall to the ground. He was then repeatedly kicked in the back, stomach and head areas.”

Defence counsel put the following to the sentencing judge:

“… my client’s recollection again, as I said, while drunk was that Mr Bulger had called out something which he thought at the time was insulting but reflecting back now he would have to agree that his intoxication has led him into a state of belief which he would not now say was the case that he was mistaken, that then there is a bit of an argument with Mr Bulger. My instructions are that one of the others punched Mr Bulger first and that Mr Bulger retaliated and then seemed to be getting the better of the person that my client was associated with and that my client then got in, as it were, to protect his friend from what he thought at the time was Mr Bulger getting the best of him … my client would agree now that there was no basis for him to intervene. … there is a common purpose situation. … Then my client intervenes and then Bulger hits my client in that fight and then others joined in. My client says he didn’t specifically deliver any kicks, but he was certainly involved in the fight”.

The learned sentencing judge drew the attention of counsel to the differences in the versions given and indicated that there had to be some resolution. The matter was adjourned from 19 December 2002 until 10 January 2003. On the latter date the court was informed that the following facts with respect to the assault on 25 December 2001 were agreed:

“The Crown does not accept that the accused merely observed the cyclist riding along and away from the platform. As contained in the statements of Bulger and Barr, the Crown case is that the accused was a member of the group that confronted the cyclist;

The Crown accepts that the accused was not the first person to hit the complainant;

The Crown does not accept that after being hit the complainant “shaped up” or displayed an intention to fight. Rather the Crown case is that after this blow the complainant is almost immediately punched by other members of the group;

The Crown accepts that while being assaulted by the group he begins to defend himself and does strike a member of the group a couple of times. The Crown accepts that it could have been the accused that is struck that maintains that at this time the assault by the other members of the group was continuing;

The Crown accepts that the complainant was held by his arms and two members of the group while the accused punched him;

The Crown accepts that the complainant was hit from the back by another member of this group, causing him to fall to the ground;

The Crown does not accept the accused did not join other members of the group in kicking the complainant in the upper body and head while he was on the ground. Both the complainant and the witness, Barr, state that the accused kicked the complainant while he was on the ground;

The Crown accepts that the accused then approached Barr, told her not to call police and attempted to take the phone off her and that while this occurred the other members of the group kicked the complainant. However, the Crown case is that this occurred after the accused had participated in the kicking of the complainant”.

The complainant was taken to hospital by ambulance. He had a bruised forehead, a cut on the left elbow, a swollen and broken nose, a bruised jaw and grazed knees and elbows. He also had some loss of consciousness and amnesia. The complainant was held in hospital overnight and discharged the following day.

The pain in the jaw persisted and subsequent x-rays showed a small fracture of the jaw. In his victim impact statement the complainant said that he was kicked in the head many times.

The applicant was arrested for that offence on 31 December 2001. It was then established that fingerprints implicated him in the property offences committed on 3 January 1999 and 19 March 2001. If that had been established prior to his being dealt with on 9 October 2001, those two offences would have been dealt with at that time. Following his arrest on 31 December 2001 the applicant was released on bail. That meant that as at 11 February 2002 he was subject to the probation order imposed on 9 October 2001, and also on bail with respect to a charge of assault occasioning bodily harm in company.

I now turn to the assaults which occurred on 11 February 2002.

The applicant and a number of others boarded a train at Toombul station. Members of the group were drinking and making a nuisance of themselves; defence counsel conceded before the sentencing judge that his client was drunk. A train guard, Miller, the complainant in the second of the counts, told the group to behave. Their behaviour did not improve and Miller told them to alight from the train when it reached Bald Hills station. There the train driver, Proposch, the complainant in the first of the counts, came to the carriage to assist Miller. The applicant’s co-offender, Neilsen snatched from the belt of Proposch his hand-held radio. Proposch then chased Neilsen and caught him; a scuffle developed between those two and another of the group then punched Proposch in the head causing him to fall down. Thereafter Proposch was attacked by other members of the group. Miller came to the aid of Proposch and was punched in the head. Proposch and Miller were then surrounded by approximately nine persons. Bottles and rocks were thrown at them. Some of the rocks were as large as a man’s fist. Miller was hit in the head with a rock and in the ear with a bottle. Proposch was restrained in a head lock and was spat on. Specifically the applicant administered three kung-fu kicks to Miller. The applicant was involved with the others in the overall assaults on the two railway employees.

As the group moved away others, not including the appellant, threw rocks and beer bottles at the train, smashing some windows.

Proposch, a man aged 43, suffered concussion, facial bruising and cuts, severe bruising to the left upper arm, and pain in his lower back that persisted for three weeks. Because of the trauma he was off work until 18 February 2002. A psychologist’s report before the learned sentencing judge indicated that Proposch suffered significant levels of stress after the incident and required counselling before he could return to full duties.

Miller, a man aged 42, suffered a bruised chest, swelling to the left side of the head, lumps on his head and pain to his jaw, arms and legs. Miller was off work for a period of four days after the incident. A report by a psychologist tendered at the sentence established that Miller experienced a stress disorder after the assault.

The applicant was identified as being a participant from a video taken at the station where the group had boarded the train. He declined to be interviewed by police.

The learned sentencing judge began his remarks by noting that though the applicant had not previously been involved in violence, he had quite a serious criminal history. After referring to the prevalence of assaults by groups of young people going about the city, he drew attention to the fact that an assault involving punching or kicking to the head could have very serious consequences for the victim. Next he referred to the position of the railway employees, and the necessity for members of the public to be able to use the railway system with safety. He said: “The court must impose sentences which will deter that conduct, make the transport system safe so it can be used by ordinary people”. He went on:

“… in relation to count 3, the assault occasioning bodily harm in which your friend was knocked, or your school acquaintance was knocked to the ground and you kicked him, that I regard as a very serious matter and you are sentenced to a period of five years imprisonment. In relation to the assaults in which you were involved against the railway employees – in relation to each of those you are sentenced to five years imprisonment.”

Thereafter he noted that the applicant was still a young man and went on to make the recommendation as to eligibility for parole.

The first point raised by counsel for the applicant is that there was no distinction drawn by the learned trial judge between punishment for the offence which occurred on 25 December 2001, and the punishment for the offences which occurred on 11 February 2002. He submitted that, considered as distinct offences, a sentence of five years imprisonment for either was not justified by the authorities.

Though he did not expressly say so, the reasonably clear inference to be drawn from the way in which the learned sentencing judge approached the imposition of sentence is that he fixed upon a term of imprisonment which reflected the overall criminality of the three counts of assault, and imposed that penalty concurrently on each of the three. The first issue to be determined is whether that approach is permissible and justified by all the circumstances here.

The matter is of some importance because the answer may affect the way in which a sentencing judge should approach the determination of sentence where numerous offences are involved. The problem requires consideration of a number of decisions of this Court and the High Court.

The starting point in this Court is Kellerman v Pecko [1998] 1 Qd R 419. Argument before the court required a consideration of the relevance of the decision in R v Papoulias [1998] VR 858. In that case the offender had been sentenced to seven years imprisonment on each of four counts of trafficking in heroin; it was argued that the sentencing judge failed to consider each offence separately and to make a proper evaluation of the relative gravity of each. The Victorian Full Court said at 865:

“What [the judge] did, and was entitled to do, was to consider all the offences as part of an overall transaction during a short period engaged in as part of the applicant’s business. Having done so, he was well entitled to tailor the effective sentence to impose an appropriate punishment for the total episode”.

Pincus JA distinguished Papoulias because all of the offences there were of the same kind and committed within a few days of each other. The offender in Kellerman was dealt with on the one day for 5 discrete offences committed over a period of some months. Pincus JA said at 420-1:

“Where an offender has committed a number of distinct, unrelated offences, all of which come to be considered by the sentencing court at the same time, an appropriate total sentence may be able to be arrived at by making some of the sentences cumulative; there is no means of making them partially cumulative. Another approach which appears commonly to be taken is to fix a sentence for the most serious offence which is higher than that which would have been fixed had it stood alone; the higher sentence takes into account not only the most serious offence, but all the other offences. Sometimes the court will fix, in respect of each of the lesser offences, its own particular penalty, but on occasions the court does not trouble to do that and simply fixes one penalty for all the offences, although they are of varying seriousness, the penalty fixed being regarded as appropriate for the sum total of the criminality involved”.

Dowsett J did not wholly approve of that approach. After referring to Papoulias he said at 424: “I am by no means convinced that either the sentencing judge or the Full Court intended to imply that any one sentence had been inflated beyond that which would have been appropriate had the offence in question stood alone”. His Honour, however, did recognise at 428 that: “Where two offences are capable of being seen as part of one criminal operation, it will be appropriate to take the second into account as a circumstance of aggravation in dealing with the first”.

The third member of the court, Fryberg J, whilst indicating that he was “inclined toward the view adopted by Pincus JA” found it “both unnecessary and undesirable to express a concluded view on the point” (429).

The next relevant decision of this court in point of time is R v Crofts [1999] 1 Qd R 386. There the court (Fitzgerald P, Davies JA, Moynihan J) held that a sentencing court has no power to impose a single sentence of imprisonment for a number of different offences. At 387 the court said that it was “necessary to impose separate terms of imprisonment for each offence”. There was reference to Kellerman v Pecko as a footnote to the observation that the course adopted by the sentencing judge at first instance “has been followed previously”. With respect, I do not regard Kellerman as approving of the approach to sentence as adopted at first instance in Crofts. Whilst applying the approach approved in Kellerman might result in the same term of imprisonment being imposed on each of the offences that is not the same as imposing a single sentence.

Those cases were then referred to in R v Gilles; ex parte Attorney-General [2002] 1 Qd R 404. There Pincus JA (with whom Thomas JA agreed) reiterated what he said in Kellerman and rejected the view stated therein by Dowsett J. He made the observation at 408 that if the approach of Dowsett J was correct then “much current sentencing is unlawful; where courts have to sentence offenders for a series of offences not greatly separated in time it is routine not to impose cumulative sentences, but to fix a sentence appropriate to the total criminality and impose it either for the worst of the offences, or for all of them indiscriminately.” His Honour referred to Crofts but said it “appears to deal with a rather different point”; I take that to be a reference to the distinction I have drawn above. In expressing agreement with the approach of Pincus JA, McPherson JA said at 408:

“In particular, I am firmly of the view that it has long been the practice, when confronted by a series of offences of the same or similar kind, for judges to impose a sentence on one count, chosen some times at random, that reflects the totality of the criminal conduct disclosed by all of the offending conduct considered in combination, and to impose relatively nominal sentences in respect of the other offences in the series. It is, of course, not impermissible to approach the sentencing process by assigning specific lesser sentences to each of the offences and then accumulating them. Few judges, in my experience, follow that course in circumstances of the kind described, and doing so probably only enhances the potential for error”.

The decision in Pearce v The Queen (1998) 194 CLR 610 was delivered in 10 September 1998 before each of those Queensland cases was decided, yet it is not referred to therein. The indictment charged the offender (amongst other things) with maliciously inflicting grievous bodily harm with intent to do grievous bodily harm and with breaking and entering the dwelling-house of the same victim and, while there, inflicting grievous bodily harm on him. Those charges were counts 9 and 10 on the indictment. Those two charges arose out of a single episode when the appellant broke into the victim’s home and beat him. The critical passage for present purposes is in the joint judgment of McHugh, Hayne and Callinan JJ at 623-4 (Gummow at 629 appears to agree with that reasoning):

“The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.

Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effect of sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.”

It is of significance that none of the judges in Pearce referred to the earlier decision in Griffiths v The Queen (1989) 167 CLR 372, a decision considered by Pincus JA in Kellerman. McHugh J was a party to each decision, and it should not be assumed that the Court was impliedly over-ruling its earlier decision. The appellant in Griffiths pleaded guilty to one count of armed robbery whilst armed and wounding, five counts of armed robbery, and to nine other charges. The first four robberies occurred in December 1987, and the last two, including the most serious one in which the wounding occurred, in January 1989. On 1 January 1988 sections 20A and 21 of the Probation and Parole Act 1983 (NSW) came into force, the effect of which was that upon conviction for certain offences, including armed robbery, committed after the date the Act come into force, a non-parole period of 75% of the sentence had to be served unless exceptional circumstances were found. The sentencing judge, unaware of the legislative changes, imposed a head sentence of 12 years with a four and a half year non-parole period. The Court of Criminal Appeal overturned the sentence, and imposed a head sentence of 15 years for the most serious offence, that of armed robbery and wounding, and ordered that the lesser sentences for the other offences be served concurrently. Though the Court of Criminal Appeal held there were no special circumstances it fixed a non-parole period of 11 years and three months. The judgments in the High Court contain passages which are relevant for present purposes.

Brennan and Dawson JJ noted at 377 that “counsel for the applicant accepts that the Court of Criminal Appeal was entitled to increase the head sentence to 15 years, treating the head sentence as the sentence appropriate to the totality of the offences of which the applicant was convicted.” In their joint judgment Gaudron and McHugh JJ said at 393:

“It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender. . . This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all the other offences to be served concurrently.”

Brennan and Dawson JJ expanded on the proper approach to sentencing in the circumstances under consideration by saying at 378:

“The effective sentence which a court determines to be appropriate punishment for a series of offences can be framed, in most cases, either as sentences for the several offences to be served concurrently, or as cumulative sentences or as sentences which are in part cumulative and in part to be served concurrently. If, with full awareness that section 20A applied only to those serious offences which were committed after 1 January 1988, the Court of Criminal Appeal chose to impose the head sentence of 15 years for the armed robbery committed on 8 January 1988 and to impose lesser sentences for all the other offences to be served concurrently with the 15 year sentence, the sentences so imposed are not open to objection. . . . The true thrust of the applicant’s argument must be that, in a case where section 20A applies to some serious offences in a series but not to others in the series, it is wrong to impose the full effective head sentence on the serious offence or offences to which section 20A applies. We would agree that the differing application of section 20A warrants consideration of the appropriateness of imposing the full effective sentence on the offence or offences to which section 20A applies, but no error of principle appears merely from the Courts having chosen that course.”

Further passages in the joint judgment of Gaudron and McHugh JJ are also instructive. At 394 they said:

“Moreover, in most, if it not all, cases the automatic imposition of section 20A to a head sentence based on a course of conduct involving both “serious” and non-serious offences must result in an injustice to the prisoner since it is unlikely that the judge would specify a non-parole period equivalent to three quarters of the sentence in respect of offences which are not serious offences within the meaning of section 20A. If, on the other hand, the sentencing judge decides, because of the operation of section 20A, to impose consecutive sentences even though only one course of criminal conduct is involved, the totality principle requires that the total length of the sentences must not exceed what is appropriate for the course of criminality. This will usually mean that the sentence for the “serious offence” will be lower than if it stood alone. Even when, in accordance with general principle, consecutive sentences are required for independent acts of criminality, the need to ensure that there is “no overlapping of the factors brought into account in determining the length of each sentence” will often mean that the sentence for a “serious offence” is lower than would be imposed if the “serious offence” stood alone.”

Because of the complications brought about by section 20A which, in the view of the High Court, had not been fully appreciated below, the matter was sent back to the Court of Criminal Appeal for re-sentencing. But the passages quoted clearly indicate, in my view, that the High Court generally approved the approach described by Pincus JA in Kellerman v Pecko and outlined by both Pincus JA and McPherson JA in Gilles.

Reference should also be made in this regard to the decision of this court in R v Sheppard [2000] QCA 57. There sentences had to be set aside because effectively they amounted to double punishment contrary to section 16 of the Criminal Code. The decision required consideration of, inter alia, Pearce and Kellerman v Pecko. The sentences substituted by this Court reflected the approach in Kellerman v Pecko and were not inconsistent with the reasoning in Pearce.

The passage quoted above from Pearce has recently been considered by the Court of Criminal Appeal in New South Wales; R v Hammoud (2000-2001) 118 A Crim R 66. There Simpson J, with the concurrence of Mason P said at 67-8:

“As a result of the decision of the High Court in Pearce … the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce, a judge is required to fix “an appropriate sentence” for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in a case of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced.

Pre-Pearce it was possible to discern two different approaches for multiple offences. The first was to select the single charge (a lead or representative count) and, in accordance with the principal of totality, on that charge impose a sentence that properly reflected the overall criminality involved in all offences. On the remaining counts, comparatively lenient sentences, frequently fixed terms, were imposed. The second approach was, again with the principal of totality in mind, to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges. Both of these approaches avoided the need for elaborate exercises in accumulation of sentences.

Neither of these approaches would survive the application of the Pearce principles. In the case of a judge adopting the first approach, the lengthy sentence imposed in relation to the lead or representative count would appear excessive and those imposed on the remaining counts would appear inadequate. None would represent “an appropriate sentence” for the specific offence for which it was imposed. On the second approach, all sentences would appear excessive for the specific charges to which they related, even when the ultimate term to be served was unimpeachable.”

The New South Wales Court of Criminal Appeal has subsequently followed that approach: Lemene (2001) 118 A Crim R 131.

In my respectful view the New South Wales Court of Crimina1 Appeal has placed too strict and narrow a construction on what the High Court said in Pearce. The construction adopted by the New South Wales Court can only be correct if it is held that Pearce impliedly over-ruled the approach to sentencing recognised earlier by the High Court in Griffiths. The strict ratio of Pearce is to be found in the first paragraph of the extract quoted above; the error by the judge at first instance was in doubly punishing the offender for the one act. The subsequent paragraphs in the passage quoted should, in my view, be regarded as limited to particular factual situations. What the passage does make clear is that there will from time to time be situations in which sentencing by adopting the totality approach will produce a result which cannot be supported. Griffiths is a good example of that. Another example, referred to by the High Court in Pearce, is that in certain circumstances artificial claims of disparity between co-offenders may be asserted where the totality principle is adopted.

In my view all the authorities to which reference has been made, with the exception of Hammoud and Lemene, can be reconciled. Where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open. One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality. But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders. That list is not necessarily exhaustive. Such considerations may mean that the other option of utilising cumulative sentences should be adopted.

It is against that background that I turn to consider sentences imposed in this case.

The first question for this court to answer is whether a sentence of five years imprisonment can be justified for the offence of assault occasioning bodily harm in company committed on 25 December 2001. Counsel for the applicant relied on R v O'Grady; ex parte Attorney-General [2003] QCA 137, R v Yanner & Anor; ex parte Attorney-General [1999] QCA 515 and R v Craske [2002] QCA 49 in support of his contention that a sentence in the range 18 months to two years imprisonment was appropriate for this offence. The offence was a particularly serious one involving, as it did, kicks to the head; but it has to be said there was no evidence that one of the applicant’s kicks made contact with the complainant’s head. Further, whilst the complainant sustained significant injuries which caused him discomfort and concern for a period of time, fortunately none has lasting significance. The fact that the assault was in company, and the fact that it occurred four days after the applicant’s release from prison and whilst he was still on probation, are circumstances of aggravation calling for a sentence towards the top of the appropriate range. In my view, given those aggravating circumstances, the top of the range would be somewhat in excess of two years imprisonment, and a sentence of two years imprisonment would be towards the top of the range; but a two year sentence would also contain some moderation reflecting the youth of the applicant and his plea of guilty. Given the confused nature of the attack on the complainant by a number of people this is an appropriate case in which to recognise the significance of the plea as facilitating the course of justice (Cameron v The Queen (2002) 76 ALJR 382). The attitude of the applicant on the first day of sentence towards the facts, and the later violent assaults again in company, indicate he has not demonstrated significant remorse such as would of itself call for any further mitigation of penalty on that ground.

In my view a sentence of five years imprisonment is not supportable as the appropriate sentence for the specific offence committed on 25 December 2001 looked at in isolation. The only inference open is that the learned sentencing judge inflated the sentence because of the perceived overall criminality of the applicant’s conduct taking into account what occurred on that date and on 11 February 2002.

I now turn to the assaults committed on 11 February 2002. These were particularly serious, but one must concentrate primarily on the applicant’s conduct so far as it is revealed by the material before the court. He, along with some eight others, were involved in a drunken attack on two railway officials. His pleas of guilty to the two counts establish his involvement in the common purpose of assaulting each of the two complainants. However, the only specific evidence against him is the kicking of Miller. There are, in my view, at least four features which are significant aggravating factors when it comes to the question of sentence:

(i)he was on probation at the time, and also on bail for an offence of assault occasioning bodily harm in company committed approximately six weeks earlier;

(ii)the attack was a concerted one carried out by a group of about nine people;

(iii)members of the group were armed with and used rocks and bottles in the course of the assault;

(iv)the attack was on railway officials performing their duty of ensuring the safety of passengers on a train.

There are on the other hand two factors in the applicant’s favour. Firstly, and perhaps fortuitously, neither complainant suffered an injury of a permanent nature. Secondly, the plea of guilty did away with the necessity of a trial which would have been complex, and perhaps lengthy. The focus at any trial would have been on what each individual in the group did, or did not do, and what was the intention of the applicant. In those circumstances discounting was called for in accordance with the reasoning in Cameron.

The offences of 11 February 2002 must, in my view, be regarded as more serious than the assault on 25 December 2001. They demonstrated a persistence by the applicant in drunken, violent behaviour in a public place. The violence was also directed at persons who were obliged by their employment to confront the applicant and his companions because of their anti-social behaviour.

In the course of submissions much was said about the relevance to this case of remarks made in R v Kazakoff; ex parte A-G (Qld) [1998] QCA 459. The offender there pleaded guilty to a charge of assault occasioning bodily harm whilst armed and in company. The victim was a policeman acting in the course of his duty. The offender was aged just 17 at the time of the offence. The initial sentence was two and a half years imprisonment with a recommendation for parole after ten months. The recommendation was expressly explained as a recognition of the plea of guilty on an ex-officio indictment. The overall assault involved a melee of young men pushing and striking at the police officer before the offender in question struck him on the head with a piece of timber. The police officer suffered a laceration to the top of his head, a fractured nose and severe swelling to the jaw. On the Attorney’s appeal this court referred to a number of authorities where consideration was given to the appropriate penalty where a serious assault on a police officer was involved. The court quoted from a decision in which the observation was made that the maintenance of order in our society depended upon adequate protection being given to those whose duty it was to maintain peace in the community. In the course of his reasons Byrne J said that those “who like this respondent, acting in company, mete out violence with a weapon to a police officer must expect condign punishment”. The court there set aside the initial sentence and substituted imprisonment for a period of four years with a recommendation for eligibility for parole after 18 months.

Counsel for the applicant valiantly endeavoured to distinguish railway guards from police officers for purposes of distinguishing Kazakoff. Certainly the duties imposed on police officers put them in a particularly vulnerable position and because they are responsible for maintaining law and order in our society the courts must protect them from attack. But the role of a guard on the railways is not all that different. Part of a guard’s responsibility is to ensure the safety of the travelling public and it is their duty to confront anyone who is perceived to be a threat to the safety of the travelling public. Attacks on such officials, particularly cowardly attacks by groups of drunken youths, must be severely punished. In a number of recent cases this court has indicated that stern penalties should be imposed for serious violent offences committed upon innocent people in public places. That principle applies with equal force to attacks on people such as the complainants in these cases.

Bearing in mind the fact that at the time the applicant was on bail for an earlier offence of assault occasioning bodily harm whilst in company, the penalty on each of these counts could be made cumulative upon the sentence imposed for the assault committed on 25 December 2001. Rather than adopting that course the learned sentencing judge imposed a penalty based on the totality of the applicant’s criminal behaviour on 21 December 2001 and 11 February 2002. It can be said however that, given the comparable sentences referred to above, a sentence of 5 years imprisonment would be above the range for the offences of 11 February 2002 looked at in isolation. Having regard to the comparable cases referred to earlier a sentence of three years imprisonment would be called for if those offences were considered in isolation.

Before considering further whether the sentences in fact imposed were the appropriate penalties to impose on the applicant it is necessary to deal with the submission with respect to disparity with the sentences imposed on two of his co-offenders who were dealt with subsequently to him. The reasoning of the High Court in Lowe v The Queen (1984) 154 CLR 606 recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a “justifiable sense of grievance”. That decision, and subsequent cases applying it, establish that a sentence should be reduced where there is such a marked disparity, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. That is confirmed by the reasoning in Postiglione v The Queen (1997) 189 CLR 295 especially at 301 and 313. Whilst “equal justice requires that like should be treated alike . . . different sentences may reflect different degrees of culpability or their different circumstances”. Where there are sufficient factors supporting different treatment then no justifiable sense of grievance flows from the fact that one offender received a heavier sentence. The contention of the applicant here is that differences in the personal circumstances between he and his two co-offenders do not justify the disparity between the sentences imposed.

Neilsen and Kunde stood for sentence on 23 January 2003 before a different District Court judge. Each of them was charged with unlawfully doing bodily harm whilst armed and in company with respect to Proposch and Miller. In addition each was charged with wilful damage to a train carriage. Pleas of guilty were entered by each to those charges.

In addition Neilsen pleaded guilty to a series of other charges including stealing a radio; assault by spitting; several counts of wilful damage, burglary and stealing; stealing a motorcycle; another offence of break and enter premises and steal; possession of a dangerous drug; and possession of utensils.

In addition to the offences committed on 11 February 2002 Kunde pleaded guilty to two counts of assault occasioning bodily harm with a circumstance of aggravation; wilful damage; burglary; four counts of stealing; attempted wilful damage; another count of burglary and stealing; two counts of entering premises and stealing; two counts of breaking and entering and stealing; one count of entering premises with intent; and one count of being in possession of a graffiti instrument.

Neilsen was aged between 16 and 17 when the offences were committed; he was just short of his 18th birthday when sentenced. He had “very little in the way of criminal history”. In relation to Neilsen the sentencing judge said:

“Now, having regard to the fact that you have pleaded guilty and that you have very little by way of previous criminal history I take the view that an intensive correction order where a sentence of 12 months imprisonment would be ordered, where you would be permitted, if you complied with the order, to serve that term of imprisonment in the community and not in a prison. … On the first indictment, that is the one involving the train incidents, on the two assaults occasioning bodily harm, on each of those I sentence you to 12 months imprisonment … As I have already indicated I order that that term of imprisonment be served by way of intensive correction in the community and not in prison”.

He then detailed the requirements of the intensive correction order.

The sentencing judge then dealt with Kunde. He began by saying that he was “in a more serious category because you come before the court with a much more significant criminal history.” The criminal history contained offences of dishonesty and unlawful acts dealing with property, but there were no previous offences of violence. Kunde was aged 20 at the time of sentence. The sentencing judge said that with respect to “the matters relating to the train incident, I propose to deal with you in similar fashion to that with which I dealt with Mr Neilsen”. Kunde was sentenced to imprisonment for twelve months but, as he had been in custody for some 251 days awaiting sentence, an order was made that the term of imprisonment be suspended after the serving of 251 days. There was an operational period of three years imposed on the suspended sentences. In addition to that, the convictions activated an 11 months suspended sentence which Kunde was ordered to serve.

The sentencing judge was informed by counsel for the prosecution of the sentence imposed on Nagy, but, perhaps surprisingly, there was no mention of that in the course of his sentencing remarks. The sentencing judge does not appear to have been at all concerned to deal with the issue of parity between the sentences he imposed on Neilsen and Kunde and the sentence imposed earlier on the present applicant. There has been no appeal by the Attorney-General from the sentences imposed on Neilsen and Kunde.

Bearing in mind the comparative sentences to which reference has been made in these reasons the sentences imposed on Neilsen and Kunde were, in my view, at the very bottom of the applicable range. The age of Neilsen undoubtedly saved him from serving an actual term of imprisonment, and the learned sentencing judge may well have been influenced by the fact that Kunde was to serve 11 months of a suspended sentence in determining that he should not serve more than the 251 days he had already spent in custody for the offences committed on 11 February 2002.

Given the aggravating factors with respect to the applicant now before the court which I have discussed above, I am of the view that it was not only appropriate, but necessary, that he be dealt with more severely than Neilsen and Kunde. Particularly given the fact that a sentence of two years imprisonment would be called for with respect to the offence on 25 December 2001, a somewhat heavier sentence must be imposed for the two counts of assault occasioning bodily harm in company whilst armed committed on 11 February 2002. In my view the three year sentence referred to above would reflect the necessary relativity to the sentences imposed on the co-offenders.

A sentence of five years imprisonment for each of the three counts of assault to which the applicant pleaded guilty does appropriately reflect the overall total criminality of his conduct. The sentence only becomes questionable when one has regard to the sentences imposed on his co-offenders. In my view the disparity is such that it is not rationally explicable solely on the basis that the applicant’s involvement in the offence of 25 December 2001 justified a significantly higher sentence if he was sentenced on a totality basis. The disparity is real, and objectively the applicant has a “justifiable sense of grievance”. As noted above the disparity is removed if sentences of three years imprisonment are imposed with respect to the two offences committed on 11 February 2002. That sentence is higher than that imposed on each of his co-offenders, but the difference is rationally explicable by the aggravating features I have referred to.

If a sentence of 3 years imprisonment is imposed then it is appropriate that the court adopt the alternative option of making that sentence cumulative upon that imposed for the offence committed on 25 December 2001.

The court must also now have regard to the totality of the cumulative sentence, and be prepared to moderate it if necessary. Given the seriousness of the offences in question, particularly those committed on 11 February 2002, I am not persuaded that a total sentence of five years imprisonment exceeds what totality permits.

I have already indicated that in determining a sentence of two years imprisonment for the offence committed on 25 December 2001 there has been some discounting for a plea of guilty. In my view some further discounting is required bearing in mind the pleas of guilty to the offences committed on 11 February 2002. That discounting factor should be recognised by making a recommendation that the applicant be eligible to apply for post-prison community based release after serving 18 months of the cumulative sentence.

The court is substituting a sentence which would operate from the day it is imposed by this court and in consequence it is necessary to make a declaration pursuant to s 161 of the Penalties & Sentences Act 1992. It will therefore be declared that the applicant has been in custody solely in relation to these matters from 24 April 2002 until 2 May 2003 a period of 374 days and that is declared to be time already served under the sentence.

The orders of the court should therefore be:

Grant leave to appeal and allow the appeal;

Set aside the sentences imposed below for the offences of assault occasioning bodily harm in company on 25 December 2001 and the two counts of assault occasioning bodily harm in company whilst armed on 11 February 2002;

In lieu thereof impose sentences as follows:

2 years imprisonment on the count of assault occasioning bodily harm in company on 25 December 2001;

3 years imprisonment on each count of assault occasioning bodily harm in company whilst armed on 11 February 2002, such sentences to be served concurrently but cumulatively with the sentence of 2 years imprisonment imposed with respect to the offence of 25 December 2001;

recommend that the applicant be eligible to apply for post-prison community based release after serving 18 months of the entire period of imprisonment.

Declare that the applicant has been in custody solely in relation to these matters from 24 April 2002 until 2 May 2003 a period of 374 days and that is declared to be time already served under the sentence.

JERRARD JA: I have read the reasons for judgment and proposed orders of Williams JA, and respectfully agree with his reasoning and his proposed orders save for the following matter. I consider that all the circumstances, including the plea of guilty, of the offence committed by the applicant on 25 December 2001 would warrant a sentence of 18 months imprisonment, rather than two years. His offending behaviour, although in company, was less palpable than that of the respondent in R v O'Grady; ex parte A-G Qld [2003] QCA 137 (CA No 35 of 2003, judgment delivered 28 March 2003), who committed more individual acts of aggression and actually did grievous bodily harm. That respondent was sentenced to two years imprisonment, wholly suspended. As this court is imposing cumulative sentences by its order, those sentences ought not to be each toward the top of the appropriate range, for if they are they can have a crushing effect when made consecutive. Other than that, I agree with the orders proposed by Williams JA, including that the court recommend that the applicant be eligible for post prison community based release after serving 18 months of the sentences substituted by this court. I add the following comments to the other matters discussed by Williams JA.

I agree with His Honour that the judgments in Griffiths (1989) 167 CLR 372*,* which were not referred to in Pearce (1998) 194 CLR 610*,* approve the imposition of a “head” sentence for the most serious offence reflecting the totality of the criminal behaviour of an offender, together with concurrent lesser sentences, when a sentencing judge is required to sentence an offender who has committed a number of differing offences, not necessarily over a short period. Those judgments equally approve the imposition of consecutive sentences of reduced length, with or without other sentences served concurrently. The judgment of Williams JA at para [39] identifies some of those occasions when the latter sentencing option will be more appropriate. Some of these are described in the majority judgment in Pearce at CLR 624. A particular difficulty which will arise pursuant to Part 9A of the Penalties and Sentences Act 1992 (Qld), when a head sentence is imposed for a serious violent offence and the other offences for which sentence is being imposed are not serious violent offences, was illustrated by the facts and outcome in the High Court in Griffiths.

In that case Gaudron and McHugh JJ considered that the provisions of s 20A of the relevant New South Wales legislation, (which had a similar result when sentencing for a “serious” offence as defined in that legislation, as the classification of an offence as a “serious violent offence” has when sentencing in Queensland) meant that where both serious and non serious offences were the subject of sentencing, ordinarily the better course was to impose sentences in accordance with the totality principle and adjust the non parole period, after taking into account that some of the offences contributing to the head sentence reflected punishment for conduct involved in non serious offences; and in the particular circumstances of that case required the New South Wales Court of Criminal Appeal to exercise the “exceptional circumstances” discretion, (and reduce the non-parole period) by reason of the number of non serious offences (the vast majority) being taken into account in that 15 year sentence. Deane J concurred in the view that it was necessary for that Court of Appeal to take into account that the appropriate aggregate head sentence was for a series of offences which included a majority of offences beyond the reach of s 20A.

In Queensland a similar situation may mean that consecutive terms of imprisonment should be imposed, to avoid, for example, inflating the sentence for a serious violent offence to one of 10 years or more. The significance of that level of imprisonment ordered for a serious violent offence is, of course, that s 135(2)(c) of the Corrective Services Act 2000 (Qld) and Part 9A together have the effect that a prisoner must serve 80% of that sentence before being eligible for post prison community based release. The need to avoid inflating a head sentence for a serious violent offence in the circumstances described particularly arises because this Court has construed s 161C of the Penalties and Sentences Act, which, inter alia, describes the effect of cumulative sentences totalling 10 years or more, as requiring two or more serious violent offences to bring it into operation¹. It would be anomalous if that construction could be avoided by making the only serious violent offence in a series of offences carry an inflated or head sentence.

I note that the judgments in Griffiths did not specifically approve the imposition of concurrent head sentences, as distinct from a head sentence and concurrent lesser sentences. This court has approved the former practice in R v Marshall [1994] QCA 235 (CA No 12 of 1994, judgment delivered 28 June 1994) and a majority approved it as an alternative variety of sentencing practice in R v Gilles; ex parte A-G [2000] QCA 503. That variety of sentencing practice does run the risk of having all sentences, other than the sentence for the offence in respect of which the “head” sentence is plainly appropriate, appear to be manifestly excessive. The alternative and safer practice, commonly followed, (and appropriate when the matters mentioned by Williams JA in para [39] do not apply), of imposing the head sentence only for the worst (or last in time) of the offences, has the advantage of being likewise approved by this court in Marshall and Gilles, and by the High Court in Griffiths.

However, concurrent sentences of the same length for offences of the same kind have been approved at intermediate appellant levels in R v Papoulias [1988] VR 858*,* and imposed in Sheppard [2001] 1 Qd R 504*.* In such circumstances the practice does seem unexceptionable. In Sheppard this Court had a genuinely Pearce matter. That applicant had been convicted of three counts of uttering, and four counts of false pretences; and sentenced to three years imprisonment concurrent on each of the uttering counts, and five years imprisonment concurrent on each of the false pretence counts, with the three and five year sentences being made cumulative. Williams J (as he then was) held, at [35], that the same conduct on the part of the applicant constituted the offence of uttering and the offence of false pretences on each of the three occasions in question, and that [at 33] in his view there was a serious error of principle involved in imposing cumulative sentences in the circumstances of the case. He referred to the judgments in Pearce. Williams J then imposed sentences of seven years imprisonment on each of the uttering counts; and Pincus JA wrote as follows, at [16]:

“I note that the orders proposed by Williams J include concurrent seven year sentences for all the uttering cases; I agree with His Honour’s reasons for concluding that such sentences are warranted by the circumstances of the case. In Kellerman v Pecko [1998] 1 Qd R 419 there was a difference of view as to whether or not it is proper to ‘inflate a sentence for one offence to reflect the criminality inherent in other offences’; I express the opinion that a court could properly ‘impose a sentence for the stealing charge which reflected the overall criminality of the five offences in respect of which the Magistrate had to sentence the applicant’. In the present case and ones like it, unless one accepts that it may be proper to impose a higher sentence for one offence because others have also been committed and are before the sentencing court, such sentences as Williams J proposes could not sensibly be made. The seven years imprisonment is intended to be punishment, not for one offence only, but for all the uttering cases. Because I adhere to the view I expressed in Kellerman v Pecko and because the orders would, in my opinion, achieve just sentences I concur in the orders Williams J proposes.”

I respectfully suggest that Williams JA in Sheppard correctly applied both Pearce where it was appropriate, (in setting aside the two differing punishments for essentially the same conduct), and Griffiths where it was appropriate, namely when imposing concurrent sentences which reflected overall criminality for the three different offences of the same variety which that applicant committed. The application of the R v Hammoud (2000-2001) 118 A Crim R 66 and R v Lemene (2000-2001) 118 A Crim R 131 approach adopted in New South Wales would have required the calculation of separate sentences for those three relatively identical offences. I agree with Williams JA that the New South Wales Court of Criminal Appeal has placed too strict and narrow a construction on what was said in Pearce.

MUIR J: With one possible qualification, I agree with the reasons of Williams JA and with the orders he proposes. I completely agree with his observations to the effect that railway guards or security officers are deserving of protection and that attacks on such officials merit severe punishment. I do not consider, however, that the role of such officials is to be equated with that of members of the police force and I do not understand his Honour’s reasons to be asserting to the contrary.

The particular status and need for protection of police officers is identified in the following passage from the reasons of Dowsett J in R v Williams; ex parte A-G (Qld)² quoted with approval by Ambrose J in R v Kazakoff; ex-parte Attorney-General³ –

“The maintenance of order in our society depends upon those who are charged with enforcing it being adequately protected to the greatest extent possible in the performance of their duties … if there is to be peace in the community and if those charged with maintaining it are to go about their duties in an acceptable way, they must be protected in so doing.”

Somewhat similar observations were made by Vincent J in R v Taylor, Reed and Minogue.⁴ His Honour there said of members of the Victorian Police Force –

“(They) perform a vital role in protecting the ordinary people of society against the actions of individuals of your kind. In turn, the community through its courts must make it perfectly clear that violent actions directed against them will not be tolerated. This is a proper area of operation for the principle of deterrence which must therefore be taken into account.”

The discharge of police officers’ duties involves maintaining law and order and necessitates the maintenance of public confidence in and respect for the police service and its members. It carries with it appreciable risks of injury and even death. Because of these matters, and because of the need to facilitate the exercise of powers by police officers, courts have accepted the need to mete out salutary punishment to those who harm or impede them. Police officers are thus in a special category for present purposes and attempts to equate with them public officials and others who have roles which bear a degree of similarity to those of police officers should be regarded with caution.

I have also had the advantage of reading the reasons of Jerrard JA. I respectfully agree with those reasons, other than his Honour’s observations concerning the sentence to be imposed in respect of the 25 December 2001 offence. Whilst appreciating the force of his Honour’s observations, I am satisfied that the circumstances surrounding the 25 December offence, as outlined in Williams JA’s reasons, justify the sentence proposed.

Footnotes

1. See R v Powderham [2002] 2 Qd R 417 at [10]. ↩

2. CA No 385 of 1997. ↩

3. CA No 236 of 1998. ↩

4. Supreme Court of Victoria, unreported, 22 June 1989. ↩