R v Taputoro [2007] QCA 29

CITATION: R v Taputoro [2007] QCA 29

PARTIES: R / v / TAPUTORO, Tutua James / (appellant/applicant)

FILE NO/S: CA No 271 of 2006 / DC No 130 of 2006

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Mt Isa

DELIVERED EX TEMPORE ON: 8 February 2007

DELIVERED AT: Brisbane

HEARING DATE: 8 February 2007

JUDGES: McMurdo P, Keane JA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Appeal against conviction dismissed / 2. Application for leave to appeal against sentence refused / 3. Warrant to issue for the apprehension of the applicant; with the warrant to lie in the Registry for seven days

CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - where applicant convicted of unlawful assault - where appeal against conviction dismissed on request of applicant's counsel - where applicant sentenced to six months imprisonment suspended after four months for an operational period of 12 months - where applicant employed as security staff - where judge considered need for deterrence - whether sentence manifestly excessive / R v Nuckey, unreported, CA No 95 of 1998, 22 June 1998, distinguished

COUNSEL: P E Nolan for the applicant / R G Martin SC for the respondent

SOLICITORS: Rod Madsen Solicitor for the applicant / Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 21 September 2006, the applicant was convicted upon the verdict of a jury of one count of unlawful assault. He was acquitted of unlawful assault causing bodily harm in company and unlawful assault causing bodily harm. On 22 September 2006, he was sentenced to six months imprisonment suspended after four months for an operational period of 12 months. One day was declared as pre-sentence custody.

The applicant originally sought to appeal against his conviction. At the request of counsel for the applicant, that appeal was dismissed today. The applicant seeks leave to appeal against the sentence imposed on him on the ground that it is manifestly excessive.

The incident which led to the charges against the applicant occurred at Mount Isa. The complainant was Jason Emblen. At about 3.00 am on Sunday, 21 August 2005, Mr Emblen arrived at a nightclub in Mount Isa. He was drunk, and became involved in an argument with security staff at the nightclub. He threw a punch at one of the staff, who turned out to be the applicant's son. There is no suggestion that the applicant's son was actually injured.

Mr Emblen was ejected from the nightclub and was thrown down three or four steps at the entrance to the nightclub. There he was attacked by a number of people, who kicked and punched him while he was on the ground. A friend of his intervened and sought to take him to a taxi.

The applicant was working that night as a member of the security staff at the Irish Club in Mount Isa. The applicant's son telephoned him and told him about the incident with Mr Emblen. The applicant then went to the nightclub.

Mr Emblen was sitting near the taxi area outside the nightclub when the applicant arrived. Mr Hagan, a witness at the trial, said that he saw a group of people attack Mr Emblen again and then he saw the applicant punch Mr Emblen and kick him in the head twice. The full extent of Mr Emblen's injuries constituted bodily harm.

The applicant made admissions to police that he slapped Mr Emblen on the face. In this interview, he denied kicking Mr Emblen.

The verdict of the jury suggested the jury was not satisfied either that the applicant acted in company with the other persons who assaulted Mr Emblen or that the applicant's assault caused the bodily harm ultimately suffered by Mr Emblen. Nevertheless, it is apparent that the jury accepted that the evidence established a case that the applicant did assault Mr Emblen.

The applicant was born on 12 April 1962. He was 44 years of age at the date of sentence. He has two dependent children. Even if it can be said in the applicant's favour that the applicant's attack on Mr Emblen was motivated by retribution for Mr Emblen's assault on the applicant's son, the applicant, a man of mature years who was working as security staff, acted irresponsibly and without any real provocation. The applicant's response was unnecessary and quite disproportionate. The attack on Mr Emblen, who was already disabled, was quite reprehensible. It was all the more so because of the nature of the applicant's occupation.

The learned sentencing judge was satisfied beyond reasonable doubt that the applicant "assaulted the complainant on the roadway by kicking him in the head and punching him at a time when he was disabled as a consequence of the earlier attacks on him." There was evidence to support his Honour's finding. His Honour was, of course, entitled to proceed on the basis that he was satisfied of the facts on the balance of convenience. His Honour was plainly at pains to make it clear that he was well satisfied as to the nature of the assault. The applicant seems to suggest that the learned sentencing judge sentenced the applicant on the basis that he was treated as responsible for the bodily harm suffered by the complainant. However, his Honour made it clear that he did not proceed in this way. He did not treat the applicant as responsible for Mr Emblen's injuries. His Honour said,

"Your assault on the complainant was a very serious one. It was motivated by a desire for retribution. The nature of the assault, kicking a man already disabled in the head, was both a reprehensible act in itself and carried with [it] potential to cause grave injury to the complainant."

The learned sentencing judge was clearly influenced by considerations of general and personal deterrence, bearing in mind the applicant's occupation and the opportunity which security staff have to use personal violence on their fellow citizens in and around nightclubs. It must be acknowledged that such considerations have a strong claim upon the exercise of the sentencing discretion in such a case. As the learned sentencing judge said,

"I have no doubt that news of the sentence imposed on you will quickly spread to people working in the security industry in Mount Isa and, indeed, to others in Mount Isa."

The sentence of imprisonment which was imposed was moderated by reason of the applicant's otherwise good record and the hardship which his imprisonment will occasion his family.

The applicant sought to rely upon the decision of this Court in R v Nuckey (CA No 95 of 1998, unreported judgment delivered 22 June 1998), where, in a case described by Justice McPherson as "a mild form of common assault", the offender had already spent 45 days in custody and was originally sentenced to imprisonment for 12 months, to be suspended after 45 days, for a period of two years. The Court of Appeal, having regard to the circumstance that the offender had already spent 45 days in custody at the time he was sentenced, set aside the suspended sentence. That case was one in which the offender had pleaded guilty. The offender had an extensive criminal record for offences of dishonesty, but the assault was "a mild one" for which he might otherwise have "fairly have expected to escape without any penalty at all".

In the present case, while the applicant has no criminal record, he does not have the benefit of a plea of guilty or of a finding of remorse which might have been demonstrated thereby. Furthermore, there was a self-indulgent quality about this assault as well as the circumstance that the applicant was in a position where he himself should have been expected to assist in keeping the peace, rather than attacking a man who had already been disabled and imposed no threat to the peace.

I would dismiss the appeal. The appeal against conviction should be dismissed.

I would refuse the application for leave to appeal against sentence. A warrant should issue for the apprehension of the applicant.

THE PRESIDENT: I agree with Justice Keane's reasons. The experienced sentencing Judge gave careful consideration to the appropriate sentence to impose in this case, adjourning the sentencing proceedings overnight to consider the competing submissions. The Judge's view of the facts of the offence was well open on the evidence at trial. The verdicts were consistent with the evidence and the law as correctly explained by the Judge in his summing-up to the jury.

This was a serious example of an assault. His Honour rightly noted that violence like this, so often present around nightclubs, is an issue of community concern. The conduct of which the appellant was convicted warranted a salutary deterrent penalty. The appellant was a mature man, working at the time of the offence as a security guard. He showed no remorse for his conduct and did not have as a mitigating factor a timely guilty plea or co-operation with the administration of justice. The penalty for the offence of assault was increased by the legislature in 1997 from one to three years.

Despite the applicant's lack of prior convictions, I am not persuaded that the sentence imposed was manifestly excessive. I agree with the orders proposed by Justice Keane.

MULLINS J: I also agree with the orders proposed and the reasons of Justice Keane and the additional reasons given by the President.

THE PRESIDENT: Now, the warrant should lie in the Registry for how long?

MR NOLAN: Until the 12th, I was going to ask, which is a Monday. That way he can turn up on Monday.

HIS HONOUR: Do you want seven days?

MR NOLAN: Seven days.

THE PRESIDENT: Seven days is sufficient. Is seven days sufficient?

MR NOLAN: Yes, thank you.

THE PRESIDENT: The warrant is to lie in the Registry for seven days.