R v Taylor [1998] QCA 311

[1] THE COURT: This is an application for leave to appeal against the sentence imposed on the applicant in the District Court at Ipswich on 18 May 2000.

[2] The applicant pleaded guilty to assault occasioning bodily harm. He was sentenced to nine months' imprisonment to be suspended after three months with an operational period of three years.

[3] The assault occurred on 26 December 1998. At the date of the assault the applicant and the complainant had been in a relationship for some 17 months and they lived together for the last two of those months. Their relationship ended on the day of the assault.

[4] The applicant was born on 14 January 1975. He was therefore 23 years old at the date of the offence. The complainant was a similar age.

[5] On the day of the offence, the applicant and the complainant had been to a shop and were walking together. An argument developed. The complainant indicated that she was thinking of moving back with her parents, because her father did not think much of the applicant's assaulting her. (The relationship had been a tumultuous one with violence from each of the applicant and the complainant towards the other during the course of the relationship.)

[6] The applicant threw a pie at the complainant and the complainant threw Coca Cola at the applicant. The applicant then pushed the complainant to the ground. Other people came along and the applicant helped the complainant to her feet. The applicant then embraced her to comfort her. The complainant then attempted to get away from the applicant's embrace and bit him on the ear. The bite broke the skin and drew blood. The applicant immediately punched the complainant in the face and she fell to the ground.

[7] On receiving medical treatment, the complainant's injuries were noted as:

(c) swelling over the bridge of the nose with a small superficial laceration over the bridge of the nose (described as a broken nose);

(e) a slightly reduced sensation over the left cheek;

[8] The learned sentencing judge described the assault as "a brutal and cowardly blow to this young girl's face which caused her significant damage and broke her nose". At the sentencing, the complainant was present and, on it being pointed out to him, the learned sentencing judge could see the lump that she has been left with on her nose. It appears that the complainant still has a scar from the small cut on her nose. In her victim impact statement dated 18 May 2000, the complainant referred to suffering from some hearing loss in her left ear, but no medical evidence was put before the learned sentencing judge in that respect. It appears otherwise that the physical injuries sustained by the complainant settled and she has been left with some nervousness and fears, as a result of the assault.

[9] The learned sentencing judge took into account the use by the applicant on the complainant of his superior muscular development, that the applicant was an adult and that the punch was totally and completely disproportionate to what the complainant had done to him. The applicant's plea of guilty after the committal was also taken into account.

[10] The learned sentencing judge was informed that the committal was held because the complainant's original allegation was that she had been kicked in the face and that was disputed by the applicant. The sentencing proceeded on the basis that there was no kicking.

[11] On 20 September 1998 the applicant had assaulted a 14 year old boy who was riding a bicycle towards the applicant and the complainant who were walking at night. The cyclist swerved away at the last minute. The applicant struck the boy with a torch that he was carrying. It appears to have been a relatively minor assault. The applicant was not charged in relation to that offence until after 26 December 1998. He was convicted after a trial and sentenced to 180 hours of community service.

[12] The applicant was also convicted on 11 March 1999 of offences arising out of the circumstances of his arrest for the subject assault. After the assault, the applicant feared retribution from the complainant's parents. When the police arrived at his home on the night of the assault, there was a scuffle in which the applicant assaulted the police officers and was himself assaulted and hospitalised. He was convicted on 11 March 1999 of three charges of serious assault in respect of the police officers. He was sentenced to three months' imprisonment which was suspended for two years on each charge. He was also ordered to pay total compensation of $3,000.

[13] The applicant returned to live with his parents after 26 December 1998. He is a qualified fitter and turner and has been in the same employment for 20 months. After being sentenced on 18 May 2000, he served five days in custody, before being granted bail pending the hearing of this application. The applicant has not been charged with any further offences arising after 26 December 1998.

[14] Mr Kimmins of Counsel who appeared on behalf of the applicant submitted that the sentence which ought to have been imposed was one within the range of non-custodial through to three months' imprisonment to be served by way of an intensive correction order or a wholly suspended sentence.

[15] Mrs Clare, the Director of Public Prosecutions, submitted that there was no error of fact or principle in the sentencing process undertaken by the learned sentencing judge and it could not be found that the sentence imposed was manifestly excessive.

[16] The prosecutor who appeared before the learned sentencing judge had submitted that the range of sentence was between 6 and 12 months and that it was a matter for the learned sentencing judge as to whether that be suspended wholly or in part or whether a recommendation for parole be made.

[17] On the hearing of this application the court was referred to a number of comparative sentences. Those which are most relevant are sentences for assaults which took place after the commencement of the Criminal Law Amendment Act 1997 which changed the offence of assault occasioning bodily harm from a misdemeanour to a crime and increased the maximum penalty from three years to seven years.

[18] It is apparent in considering comparative sentences that ultimately the appropriate range of sentence for an assault occasioning bodily harm depends on the facts and circumstances of that assault and the extent to and manner in which each of the matters set out in section 9(4) of the Penalties and Sentences Act 1992 applies to the assault, the offender and the victim.

[19] The offender in Ward CA 245 of 1998, 18 September 1998, was 49 years old. He pleaded guilty halfway through a trial to one charge of assault occasioning bodily harm committed upon the victim with whom he had lived for about 7 years until 5 months before the offence occurred. The offender had confronted the victim about returning property claimed by him, while she was trying to get into her car. He pushed her against the car and struck her several blows to her hands, arms and on her face. She suffered a swollen upper right lip, bruising to three fingers of the right hand, bruising to her right elbow and soreness of the arm and chest and a pre-existing back injury was aggravated. The offender had no previous convictions. On appeal the sentence of 9 months' imprisonment, suspended after 3 months, for an operational period of 3 years was varied by the sentence being suspended forthwith. The offender had spent 5 days in custody.

[20] In Bean CA 95 of 1999, 26 August 1999, the offender and the victim were involved in a scuffle at the celebrations of the offender's 21st birthday. The victim left the house and walked to his car. After an interval the offender approached the victim and punched him with a closed fist to the right side of his face. The victim fell to the ground where the offender and another person kicked him and the offender stomped on the victim's right ankle. The victim suffered a fractured fibula and could not return to work for about 8 weeks. The offender had a good work record and no previous convictions of relevance. He was sentenced on the basis that the offence was committed without the circumstance of aggravation of being in company with the other person. He had been sentenced to 12 months' imprisonment wholly suspended for an operational period of 3 years. On appeal the operational period was reduced from 3 years to 18 months. This was a more violent assault than the subject assault.

[21] The offender in Anlezark CA 207 of 1999, 9 September 1999 was 23 years old when he committed a protracted assault upon the woman with whom he had been in a relationship for several years. The commission of that offence activated an earlier suspended sentence of 12 months' imprisonment imposed in respect of two counts of assault occasioning bodily harm with a circumstance of aggravation. The assault left the victim with emotional problems, but no permanent physical injuries. On appeal, the sentence for assault occasioning bodily harm was reduced from 18 months' imprisonment to 6 months' imprisonment with a recommendation for parole after 4 months.

[22] After considering the above authorities and other comparative sentences, there is no basis for interfering with the term of imprisonment of 9 months imposed on the applicant. That penalty is consistent with the need to deter assaults of this nature in the circumstances identified by the learned sentencing judge where the offender uses superior strength and size to harm his domestic partner. The real issue on this application is whether that term of imprisonment should be ameliorated by a greater period of suspension than that imposed or by a total suspension or by being served by way of an intensive correction order.

[23] In favour of the applicant, Mr Kimmins submitted that this was not a protracted assault; it occurred during the course of a scuffle which was emotionally charged; there was no premeditation; and the bodily harm was inflicted when the applicant reacted to being bitten by the complainant. Mr Kimmins also relied on the relatively short period between September and December 1998 during which the applicant offended and his subsequent good record.

[24] There is no submission on behalf of the Crown that there is a risk of physical harm to either the complainant or other members of the community, if the applicant were not required to serve part of the term of imprisonment imposed, other than that which he has already served. The applicant's personal circumstances do not suggest otherwise.

[25] There is no submission on behalf of either party that the applicant would benefit from the supervision that follows from an intensive correction order.

[26] Even allowing for the prior assault committed by the applicant, the relatively young age of the applicant, all the facts and circumstances surrounding the assault and his good record since 26 December 1998 indicate that it was manifestly excessive in the first instance to require the applicant to serve part of the term of imprisonment. The applicant should be given an opportunity to continue with his good conduct by having the balance of the sentence suspended.

[27] We therefore would grant the application for leave to appeal against the sentence and allow the appeal to the extent of ordering that the sentence be suspended forthwith.