Court of Appeal (Qld)|2001-11-13|Before: Thomas JA, Ambrose and Cullinane JJSeparate reasons for judgment of, each member of the Court, each concurring as to the orders made
Thomas JA, Ambrose and Cullinane JJSeparate reasons for judgment of, each member of the Court, each concurring as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER INQUIRY AND CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– where
assault occasioning bodily harm – where defacto relationship, custody
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER INQUIRY AND CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– whereassault occasioning bodily harm – where defacto relationship, custodydispute, alcohol problem and assault stoppedby arrival of police –whether sentence manifestly excessiveSTATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OFSTATUTES – RETROSPECTIVE OPERATION – where legislationalteredbetween date of offence and date of sentence – whether new legislationapplied at date of sentence – whetherlegal consequence would be a greaterpunishment than provided by previous legislationSTATUTES – ACTS OF PARLIAMENT – INTERPRETATION –INTERPRETATION ACTS AND CLAUSES – whether Corrective Services Act2000 (Qld) s 134(1)(a)(ii) has application to offences committed before 1 July2001 – whether Penalties and Sentences Act 1992 (Qld) s 157(2)should be construed to apply to offences of less than 2 years committed before 1
2000 (Qld), s 76(1)(b), s 134, s 134(1)(a), s 134(1)(a)(i), s 134(1)(a)(ii),
s 135(2)(e), s 276, Sch 2 and Ch 5,Penalties and Sentences Act
1992 (Qld), s 157(2) and s 180(1)
R v Anlezark [1999] QCA 380, CA No 207 of 1999, 9 September 1999,
consideredR v Bean [1999] QCA 359, CA No 95 of 1999, 26 August 1999,
consideredR v Matamua
ex parte Attorney-General (Qld) [2000] QCA
400, CA No 186 of 2000, 28 September 2000, consideredR v Taylor
[2000] QCA 311, CA No 139 of 2000, 4 August 2000, followedR v
Ward [1998] QCA 329, CA No 245 of 1998, 18 September 1998, considered
Judgment (66 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] THOMAS JA: I agree with the reasons of Ambrose J and the orders that he proposes.
[3]
[2] AMBROSE J: This is an application for leave to appeal against sentence.
[4]
[3] On 3 August 2001, the applicant pleaded guilty to assaulting his defacto wife (the "complainant") on 14 August 2000 and thereby occasioning her bodily harm.
[5]
[4] He had been living with the complainant in a defacto relationship for about ten years when he committed that offence, although the relationship had cooled down two months earlier.
[6]
[5] He was sentenced to imprisonment for a period of 18 months with a recommendation that he be eligible for parole after six months.
[7]
[6] There was a child of that defacto relationship aged five years at the time of the offence. When the relationship commenced the complainant had a daughter who had reached the age of 13 years at the time of the offence.
[8]
[7] As a consequence of domestic disharmony - probably attributable to some extent at least to the applicant's dependency on alcohol, cohabitation between the applicant and the complainant had ceased about two months before the commission of the offence.
[9]
[8] About two weeks before the commission of the offence, as a consequence of the applicant's refusal to accept termination of the relationship that had existed for so many years, the complainant arranged for the taking out of a restraining order.
[10]
[9] The applicant became very upset and although having moved to another district to reside, from time to time made contact with the complainant.
[11]
[10] The applicant was anxious to maintain the relationship that he had with his son and also with the complainant's daughter, whom he had really accepted as his step-daughter over the period of cohabitation with the complainant.
[12]
[11] Perhaps in an endeavour to permit him to maintain his parental relationship with the two children on the weekend before the commission of the offence - presumably the Saturday - he arrived at the former family home, at Hervey Bay, at the invitation of, or at least with the acquiescence of the complainant. He there had access to the two children and indeed on the Saturday night apparently slept with the complainant. It is not suggested that any sexual encounter between the two occurred on that night, although they shared the same bed which they had shared during their cohabitation at that place.
[13]
[12] On the Sunday morning the applicant bade farewell to the children and the complainant, advising that he was going back to Gatton where he had been residing since cohabitation at Hervey Bay ceased about two months previously.
[14]
[13] It seems that he did not leave for Gatton on the Sunday morning as he indicated he would, but instead conversed with other acquaintances in the area of Hervey Bay and probably consumed alcohol.
[15]
[14] On the occasion of the assault on the following morning, the applicant returned to his former domestic residence after the complainant had taken the two children to school. He entered the house and commenced to pack clothing belonging to his son. A dispute then arose between the applicant and the complainant concerning his taking his son with him and she advised that she required that proceedings be taken in respect of the custody of that child. There developed then a heated dispute, the complainant told the applicant to leave the premises and she dialled for the police. He cut off the telephone. She apparently struck him and he retaliated with a degree of violence that was unreasonable in the circumstances.
[16]
[15] In the course of the following violent activity the complainant was thrown to the floor and resistance that she offered to him was overcome by his partially choking her; he punched her; she got up again, rang for the police but again he took the phone from her and attempted to hang it up. Then there was further violence offered to the complainant. He abused her and at one stage covered her face with a pillow.
[17]
[16] The assault terminated upon the arrival of police officers. When the applicant had hung the phone up on the second occasion he had not replaced it properly, and the police had been able to hear the noise involved in the domestic altercation and indeed the sounds of violence and threats etc. They were able to discover the identity of the persons probably involved in the altercation and the location of the telephone involved because the hand piece had not been replaced properly.
[18]
[17] The applicant admitted to police officers, when they arrived on the scene, that he had become upset because the complainant wished to terminate the domestic relationship that had existed between them for so long. He also complained that he was not satisfied that she was properly looking after his son.
[19]
[18] The complainant displayed bruising to her neck and bumps on her head. She was generally sore about the upper part of her body and face. It is clear that she did not suffer any serious injury.
[20]
[19] Between the commission of the offence on 14 August 2000 and the imposition of sentence on 3 August 2001, the applicant had come to accept the complainant's termination of the domestic relationship. He had stayed at Gatton and had not, on the material, attempted to annoy the complainant or to in any way importune her to resume the domestic relationship, which she had terminated.
[21]
[20] Indeed, on the material it would seem that in the 12 month period between the assault and the sentence, both the applicant and the complainant had accepted the permanent termination of their former relationship and presumably for the benefit of the children of that union, each had attempted to maintain a continuation of the applicant's parental relationship with those children, to which they had become accustomed.
[22]
[21] The complainant had encouraged both children to communicate with the applicant by sending him cards etc.
[23]
[22] The sentence imposed by the learned sentencing judge is challenged as being manifestly excessive in all the circumstances having regard to comparable sentences canvassed before this court. Unfortunately it does not appear from the record that the learned sentencing judge was referred to any of them.
[24]
[23] One point that was argued as a preliminary matter was whether, indeed, the learned sentencing judge had jurisdiction to make a recommendation for eligibility for parole after six months, in respect of the sentence of 18 months imprisonment imposed.
[25]
[24] Both counsel referred to s 157(2) of the Penalties and Sentences Act amended by Schedule 2 of the Corrective Services Act 2000. That Act received assent on 24 November 2000. However, the amendments effected by Schedule 2 to that Act made pursuant to s 276 of the Corrective Services Act did not commence on date of assent to that Act but rather upon a day to be fixed by proclamation pursuant to s 2(2). By proclamation signed and sealed on 28 June 2001 the amendments to the Penalties and Sentences Act, including s 157(2), commenced on 1 July 2001.
[26]
[25] The position therefore, is that s 157(2) of the Penalties and Sentences Act 1992 (as amended) came into force between the date of the offence on 14 August 2000 and the date of sentence on 3 August 2001.
[27]
[26] Although both counsel contended that, at the time the learned sentencing judge imposed the term of imprisonment of 18 months, he did not have power under the legislation then in operation, to make any recommendations for eligibility for parole because under that legislation, he only had such power if the sentence imposed was one of imprisonment for more than two years, it is necessary to have regard to the effect of the Acts Interpretation Act to determine whether the amendment to the Penalties and Sentences Act to include s 157(2) if applied at date of sentence of imprisonment for 18 months would have the legal consequence that a greater punishment would be imposed upon the applicant than would have been the case had such a sentence been imposed prior to 1 July 2001.
[28]
[27] The legal consequence of the application of s 157(2) of the Act at the time sentence was imposed on 3 August 2001, would be that the learned sentencing judge imposed a sentence, which he had no power to impose, and in that event this court would be compelled to set aside the sentence and impose a fresh sentence appropriate to the circumstances of the case accepted by the learned sentencing judge.
[29]
[28] If on the other hand, it was within the power of the sentencing judge to impose that sentence because s 157(2) did not have operation in the circumstances, then the only question would be whether the sentence actually imposed was manifestly excessive in the circumstances - having regard to the facts accepted by the sentencing judge considered inter alia in the context of comparable sentences approved by this court.
"(3) If an Act increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the Act commences."
[32]
[30] In considering the application of that section to the facts of the present case, one must keep in mind s 4 which provides -
[33]
"4 The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act."
"(1) If a provision of this or another Act increases the sentence, or the maximum or minimum sentence, for an offence, the increase applies only to offences committed after the commencement of the provision.
[36]
**[32] The first matter for consideration therefore, is whether a sentence of 18 months imprisonment without a recommendation for eligibility for parole after six months and indeed, with no eligibility for parole under the Corrective Services Act, should be categorised as an "increased" sentence if compared with a similar sentence of imprisonment imposed with a recommendation for eligibility for parole after six months and a statutory eligibility after 9 months under the Corrective Services Act.
[37]
[33] In my view, a sentence of imprisonment for 18 months without any eligibility or recommendation for eligibility is clearly a more severe or "increased" punishment than a similar sentence with such an eligibility under the Act and with an effective recommendation for eligibility.
[38]
[34] An equally important consideration, however, is the terms of s 76(1)(b) of the Corrective Services Act which also came into force on 1 July 2001.
[39]
[35] Earlier provisions of the Corrective Services Act 1998 relating to eligibility for parole have been replaced by Chapter 5 of the current Corrective Services Act headed "Post-Prison Community Based Release".
[40]
[36] Section 134(1) of that Act provides inter alia -**
[41]
"(1) A prisoner may apply, in the approved form, for a post-prison community based release order, other than an exceptional circumstances parole order, if -
[42]
(a) the prisoner was sentenced to a period of imprisonment (the "relevant period") -
[43]
(i) of any length, for an offence committed before the commencement of this section; or
[44]
(ii) of more than 2 years, for an offence committed after the commencement of this section; and
[45]
**[37] Section 135(2)(e) provides that in general and excepting the cases specified in that section, a prisoner may obtain a community based release order after having served half of the period of imprisonment imposed.
[46]
[38] The important constraint in my view, however, to be found in Chapter 5 of the Corrective Services Act is that contained in s 134(1)(a)(ii). As I read that section, a prisoner may not apply for a post-prison community based release order (including parole) unless sentenced to a term of imprisonment "of more than 2 years" in respect of an offence committed "after the commencement of this section".
[47]
[39] On the facts of the present case, clearly the offence for which the applicant was sentenced was committed prior to the commencement of s 134 of the Corrective Services Act of 2000 - indeed it was committed prior to the date of assent to that Act, as well as prior to that section coming into effect on 1 July 2001 by proclamation.
[48]
[40] In my view, s 134(1)(a)(ii) of the Corrective Services Act had no application to a sentence imposed in respect of an offence committed on 14 August 2000. Section 134(1)(a)(i) did apply to such an offence in respect of a sentence of imprisonment "of any length".
[49]
[41] In my view, therefore, had the learned sentencing judge simply imposed a sentence of imprisonment of 18 months and made no recommendation as to eligibility for parole, the effect of ss 134(1)(a)(i) and 135(2)(e) would have been to make the applicant eligible to be considered for parole after serving half the period of sentence - ie 9 months.
[50]
[42] The effect of construing s 157(2) of the Penalties and Sentences Act as constraining a sentencing judge's capacity to make a recommendation for eligibility for parole in the circumstances of this case, would be to increase the maximum penalty for the offence to which the applicant pleaded guilty, by putting it beyond his power to ameliorate the sentence for reasons which seemed appropriate to him by making an order that he be eligible to apply for parole after six months rather than allowing s 135(2)(e) of the Corrective Services Act 2000 to operate, which would make him eligible to apply after serving 9 months of that 18 month sentence of imprisonment.
[51]
[43] In my view, s 157(2) of the Penalties and Sentences Act 1992 ought be construed as having application to terms of imprisonment of two years or less imposed only with respect to offences committed after that section became operative on 1 July 2001.
[52]
[44] In my view, the sentence imposed by the learned sentencing judge was within power, because s 157(2) of the Penalties and Sentences Act had no application to the offence, which was committed prior to 1 July 2001.
[53]
[45] I will turn next to consider whether the sentence imposed was in fact manifestly excessive.
[54]
[46] Before this court, a reference was made to R v Taylor (2000) QCA 311. The judgment in that case delivered on 4 August 2000 makes reference to a number of comparable sentences which led to granting the applicant leave to appeal against a sentence of 9 months imprisonment for an assault occasioning bodily harm, on the ground that it was manifestly excessive to require the applicant to serve part of that term of imprisonment. The court in that case allowed the appeal to the extent of ordering that the sentence of imprisonment imposed on 18 May 2000 be suspended forthwith.
[55]
[47] In the course of the judgment, reference was made to Ward CA 245 of 1998, where a sentence of 9 months imprisonment to be suspended after 3 months with an operational period of 3 years, was varied by that sentence being suspended forthwith. The applicant in that case had spent 5 days in custody. In that case the complainant had been caused bodily harm when she was assaulted about the face and hand and suffered a bruised elbow and soreness of the arm and chest with an aggravation of a pre-existing back injury.
[56]
[48] Reference was made to Bean CA 95 1999, where the applicant, after being involved in a scuffle with the complainant at his 21st birthday party, followed the complainant to his car, punching him on the right side of the face with a closed fist, which caused him to fall to the ground, where the applicant and another person stomped on his right ankle which resulted in a fracture of his fibula which prevented him from returning to work for eight weeks. He had been sentenced to 12 months imprisonment, wholly suspended for an operational period of 3 years. On his appeal the operational period was reduced from 3 years to 18 months.
[57]
[49] The bodily harm in that case was significantly more serious than that suffered by the complainant in this case.
[58]
[50] In Anlezark CA 207 of 1999, the applicant committed a protracted assault upon a woman with whom he had been in a domestic relationship for some years. The commission of that offence activated an earlier suspended sentence of 12 months imprisonment in respect of two counts of assault occasioning bodily harm with a circumstance of aggravation. In that case the complainant had been left with emotional problems but not permanent physical injuries. On appeal, the sentence imposed for assault occasioning bodily harm was reduced from 18 months imprisonment to 6 months imprisonment with a recommendation for parole after 4 months.
[59]
[51] Reference of those cases in my view, demonstrates that the sentence imposed upon the applicant in the present case was out of line with sentences as varied or allowed to stand in this court. In Taylor itself, the assault occasioning bodily harm occurred in the course of a domestic scuffle "which was emotionally charged", there was no premeditation and the bodily harm, which the applicant in that case inflicted upon the complainant, occurred when he reacted to being bitten by her. There was no suggestion in that case that there was risk of physical harm to the complainant or to other members of the community if the applicant was not required to serve any further term of the imprisonment imposed, than that which had already been served (five days).
[60]
[52] In R v Matamua; ex parte Attorney-General of Queensland CA No 186 of 2000 delivered on 28 September 2000, this court on appeal by the Attorney-General, considered a wholly suspended sentence imposed for an assault occasioning bodily harm. In that case also, a number of comparable sentences were considered where wholly suspended sentences were not upset where assaults occasioning bodily harm caused more significant injury than those suffered by the complainant in this case, were allowed to stand. The assault occasioning bodily harm in Matuma involved an assault committed by a man upon his defacto wife; it arose out of a domestic argument during which the offender, at one stage in the course of a drinking spree with others, threatened to slice the complainant with a broken bottle. When the argument resumed, he picked up an axe; swinging it at her. He hit her on the back of the head with the axe handle and knocked her to the ground, and then swung the axe towards her imbedding it in the ground beside her head; he then applied further force to her while on the ground and threatened to kill her. There was a series of other acts of violence which it is unnecessary to detail.
[61]
[53] The complainant in that case suffered severe pain in the rib area and had trouble breathing; she received hospital treatment when she started to cough up blood; she suffered headaches and muscular pain, and it took eight or nine weeks for the pain in her ribs to subside although she suffered no permanent physical injury. The attack upon her had a significant psychological impact. With respect to the most serious offence committed upon the complainant, a sentence of 18 months imprisonment was imposed to be served concurrently with lesser penalties for other offences arising out of the same incident, and this sentence was wholly suspended with an operational period of 2 ½ years. In the course of his judgment, Pincus JA observed that the degree of violent behaviour was of such a character and involved such a danger to others as to require part of the imprisonment to be served. The Court of Appeal did not interfere with the sentence of imprisonment but in lieu of the suspension, made a recommendation for parole after 6 months. There was a recommendation made, that the offender in that case receive counselling in respect of problems he had with the consumption of alcohol.
[62]
[54] In my view, the circumstances of the assault occasioning bodily harm in Matuma were far more serious than those in the present case.
[63]
[55] Having regard to the facts placed before the learned sentencing judge, I am satisfied that had his attention been drawn to the comparable sentences to which I have referred, he would not have imposed the sentence which he did.
[64]
[56] In my view, having regard to the decisions of this court to which I have referred, the sentence imposed was manifestly excessive.
[65]
[57] I would grant leave to appeal. I would set aside the sentence. In lieu I would impose a sentence of 12 months imprisonment. In light of the period of approximately 3 months imprisonment which the applicant has already served, I would adopt the course taken in Taylor and order that the sentence having commenced on 3 August 2001 be suspended forthwith with an operational period of 12 months.
[66]
[58] CULLINANE J: I have read the reasons of Ambrose J. I agree with his reasons and the orders proposed.**