Court of Appeal (Qld)|2000-09-28|Before: Jersey CJ, Pincus JA, Thomas JA

R v Ryan; ex parte Attorney-General [2000] QCA 401 (28 September 2000)

THOMAS JA: This is an appeal by the Attorney-General against a sentence imposed for two counts of assault occasioning bodily harm. The offences were committed at about 1 a.m. on 13 November 1999 in front of the casino in Brisbane. On each offence he was concurrently sentenced to two years' probation and, in addition, 200 hours community service. Convictions were recorded.

The circumstances are that in the early hours of 13 November 1999 the complainant, who was drunk and disorderly, was escorted from the casino by security officers. That group passed by the respondent who had previously been ejected. The respondent abused the security officers, indicating to them that they should let the complainant go. When the complainant was released at the bottom of the stairs he turned and walked up to the respondent. For no apparent reason he swung a punch at the respondent but missed by a considerable distance. The respondent them retaliated by pushing the complainant and struck him a heavy blow to the head with a closed fist. The complainant fell to the ground and, as he tried to sit up, the respondent kicked him in the head. He then lay on the ground immobile, upon which the respondent ran up to him and delivered a further kick to the head.

Video cameras record that the kick was of such force that the complainant's head and shoulders lifted and moved sideways as a result. One of the security officers described the kick as one that might be delivered to a soccer ball. Several security officers then rushed to restrain the respondent and, in the ensuing tussle the respondent struck the second complainant a couple of blows to the head and chest. That constituted the second offence. The respondent was then detained and in due course arrested.

The injuries suffered by the principal complainant were bruising in the area of the right eye and chipping of his two front teeth. The security guard suffered some general bruising to his face and some sinus pain. It is perhaps surprising that greater physical harm did not result. However, fortunately for both complainant and the respondent the case is only one of assault occasioning bodily harm.

When interviewed about an hour later the respondent admitted his actions but denied kicking the complainant a second time. He said that he had been drinking and felt sympathetic with the complainant, and had called out as a gesture of friendship. He accepted that his reaction to the complainant's punch was "probably unreasonable".

The respondent was 23 years old at the time. He has no previous criminal convictions of any significance, his history being confined to convictions for insulting words in 1994 and behaving in a disorderly manner, obstructing police and unlawful destruction of property in 1996. He was in employment and had a good employment history. There was a hand-up committal and an early plea of guilty.

A psychologist's report revealed some matters of significance, including the respondent's reaction to the terminal illness of his stepfather and to the effect upon him of an assault of a sexual nature some three years earlier. The respondent was significantly affected by alcohol at the time. It is accepted that his behaviour was out of character.

The complainant started the incident, but there was a gross over-reaction by the respondent, who was in a drunken, aggressive frame of mind, leading on to quite brutal over-reaction. I have seen the relevant video tapes and note that the whole confrontation took place over about five seconds, but that the two kicks, particularly the second one, were extremely vicious. It is, I think, a matter of considerable significance and very fortunate for the respondent that the consequences for the complainant were not more serious.

The counsel for the Attorney-General submitted that his Honour seems to have regarded the respondent's alcohol-affected state as a mitigating factor, and he further submitted that, while alcohol might explain why the incident occurred, it does not mitigate the circumstances. The second proposition is obviously correct. However I do not think that his Honour's reasons suggest any error of the kind that is suggested in the first of those submissions.

Counsel for the Attorney-General further referred to the psychologist's report, which showed the respondent's awareness that he was drinking to excess and that he had in fact sought help because he was not handling the stresses in his life appropriately. That circumstance, it seems to me, cuts both ways. While it shows that he failed to control himself on the night in question and that he knew he had an alcohol problem and had indulged in alcohol, it also suggests a person with genuine problems who was motivated to control them. The circumstances show a nasty over-reaction but not a person with a generally callous attitude. The principal submission of counsel for the Attorney-General was that the sentencing Judge gave insufficient weight to the aspect of general deterrence. He suggested that a custodial sentence, even if suspended at an early stage, was necessary.

In the proceedings below the prosecutor submitted that the appropriate penalty was one of 12 months imprisonment but stated, "It does seem to be the case that a wholly suspended term of imprisonment is within range." It is not necessary to repeat the authorities which demonstrate that a Court of Appeal leans very strongly against subjecting a person, who has already received a sentence, to second jeopardy at the instance of the Crown, with the Crown changing its ground to some extent on the second occasion. It is enough to list the decision of Economedes (1990) 58 A Crim R 466, Fermaner [1994] SASC 4468; (1994) 72 A Crim R 138, Tricklebank [1993] QCA 268; (1994) 1 QdR 330 and Aubrey (1995) 79 A Crim R 124.

There is, in the present case, the additional factor that the appellant, who is still relatively young, has been released back into the community and has shown a sufficiently appropriate attitude to the community based orders including his completion of the community service in an appropriate way. There were two attendance failures at probation which deserve censure, but the attitude of the reporting probation officer and apparently that of the respondent remain positive. Rehabilitation prospects must be regarded as promising and so far as this aspect is concerned a prison sentence would at best be of negative impact.

The question remains whether general deterrence demands a prison sentence or whether the sentence is inconsistent with the pattern of sentencing in similar matters. I do not think the circumstances comparable with those of Walsh, Sayer and Thompson to which the Attorney-General referred. In that case three young men in company attacked the victim and the damage done to the victim was greater. It is also to be noted that although the Court allowed the Attorney-General's appeal in that case, it substituted a wholly suspended sentence.

The only other cases relied on by counsel for the Attorney- General were Wade, CA 139 of 1996, 12 June 1996 and Bean,

CA 95 of 1999, 26 August 1999. In the first of these this Court declined to interfere with a sentence of six months' imprisonment suspended after two months. And in the second case the Court reduced the operational period of a sentence of 12 months which had been wholly suspended.

The dominant features of the case are that the sentence seems light, but within a fairly wide range of sentence available in cases of this kind and the further fact that it was imposed after a concession at first instance by the Crown Prosecutor that a wholly suspended sentence would be within range.

Having regard to the applicant's relative youth, his lack of prior convictions or prior relevant convictions, the disadvantages which he has endeavoured to overcome especially to the extent of maintaining a good work history, the lack of premeditation, the plea of guilty and the Crown Prosecutor's concessions below, I do not think that this is a case in which it would be right to increase the sentence or to impose a custodial sentence at this stage. The appeal should be dismissed.

THE CHIEF JUSTICE: I agree that the appeal should be dismissed. With the reservation to which I will come, I agree with the reasons just expressed. I believe the respondent narrowly avoided imprisonment or suspended imprisonment. If he had been imprisoned it would, in my view, have been sustainable on appeal.

Absent any arguable form of provocation or provoking insult, vicious attacks of this character should ordinarily lead to imprisonment. In my view, it was this respondent's particular need for rehabilitative care which apparently persuaded the sentencing Judge to impose community based orders.

I believe he was treated too leniently, but allowing especially for the circumstance that he has fully carried out the community service ordered, the circumstances of the case do not call out for correction in a way which would warrant now this Court's interfering on the Attorney's appeal.

My reservation is that it is not clear to me that the sentencing Judge did not regard the respondent's drunkenness as a mitigating factor. When sentencing Judges refer to drunkenness as if relevant it behoves them to explain clearly what they see as the significance of the reference having regard to previous decisions of this Court.

PINCUS JA: Drunken violence, generally committed by men, is such a curse on a community, both in relation to family life and in relation to places of entertainment, that it must be vigorously restrained. It seems to me clear that, if such violence is regarded as less reprehensible because committed by a drunken person, the Court will act on a wrong principle.

I agree with the reasons of the Chief Justice and, not without some misgivings, I agree that the appeal should be dismissed.

R v Ryan; ex parte Attorney-General [2000] QCA 401

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R v Ryan; ex parte Attorney-General [2000] QCA 401 (28 September 2000)

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