R v Vickery [1992] QCA 147

Court of Appeal (Qld)|1992-06-12|Before: Mr P, Davies J, Demack J

IN THE COURT OF APPEAL [1992] QCA 147

The Attorney-General has appealed against the sentence imposed upon Raymond Sydney Vickery on the ground of its inadequacy. Vickery was convicted in the District Court at Brisbane on 31 January 1992 on his own plea on one count of unlawful wounding and, in lieu of sentence and with his consent, he was ordered to perform 200 hours of community service with the usual conditions.

The offence involved an attack with a broken glass upon another man at a hotel. Vickery's female companion was approached by the complainant, with whom she had previously had a relationship, and was asked to dance. There was a long history of ill-will between Vickery and the complainant who had been dealt with on more than one occasion for harassment of Vickery and the woman. When the complainant approached the woman, Vickery broke the glass which he was holding on the table and struck the complainant in the face, causing him serious injuries.

Vickery is a forty year old divorced man with custody of his six year old daughter. He was unemployed at the time, and immediately carried out the community service which had been ordered over a period of five weeks, which he concluded prior to 13 March this year. He received a most favourable report, and was described as "a polite, hardworking man who was eager to please ...". He has some previous convictions, but none which are presently material.

Nonetheless, the sentence imposed upon him was plainly inadequate. A sentence of at least eighteen months imprisonment was warranted, despite the circumstances that the act was spontaneous, and that Vickery co-operated with the police, pleaded guilty at an early time, and gave clear signs of contrition and remorse. Deterrence is an important factor in relation to offences involving brutal violence in which serious injuries are inflicted on the victim.

In the circumstances, the Court would on this appeal be bound to reconsider the sentence imposed with a view to increasing it were it not for the further circumstance that Vickery has already completed the community service imposed upon him in lieu of a sentence. The appeal was instituted only just within the limits of the time allowed and after Vickery had substantially carried out his community service. There is an incongruity associated with a combination of a prison sentence and an order for community service.

However, with considerable reluctance, the Court has concluded that such considerations cannot be decisive in this case. There is no real alternative to a custodial sentence.

In order to recognise the community service which has been performed and the increased disruption caused to the respondent's life by the delay in achieving finality in this matter, the term of imprisonment will be less than would otherwise have been imposed. In the special circumstances of this case, the period of imprisonment should be twelve months.

The appeal is allowed. The respondent Raymond Sydney Vickery is sentenced to imprisonment for a period of twelve months. A warrant is to be issued for his arrest but is to lie in the registry for a period of forty eight hours before it is issued.

A WARRANT IS TO BE ISSUED FOR HIS ARREST TO LIE IN THE REGISTRY FOR A PERIOD OF 48 HOURS BEFORE IT IS ISSUED.

MINUTE OF ORDER:APPEAL ALLOWED. THE RESPONDENT IS SENTENCED TO IMPRISONMENT FOR A PERIOD OF TWELVE MONTHS.A WARRANT IS TO BE ISSUED FOR HIS ARREST TO LIE IN THE REGISTRY FOR A PERIOD OF 48 HOURS BEFORE IT IS ISSUED.

CATCHWORDS:Criminal law - Sentence - Attorney-General appeals against sentence for unlawful wounding - appeal instituted just within time and when community service substantially completed - whether custodial sentence nevertheless warranted - 12 months substituted

Solicitors: Director of Prosecutions for the Appellant

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