R v Ward [1998] QCA 329

Court of Appeal (Qld)|1998-09-18|Before: Murdo P, Pherson JA, Shepherdson J

The applicant was 49 years old and had no previous convictions. Some references were tendered on his behalf for voluntary work done by him for Iona College. The applicant was in pain with a double hernia and was to have surgery on the day of the assault. This had to be delayed because he was suffering from bronchitis and post-nasal drip, and was on medication.

In these circumstances it was submitted he reacted badly to seeing the complainant near his home, with her background of dispute over property. It was submitted the offence was out of character. It was submitted that medical records before the Court showed the complainant spoke favourably of assistance provided to her by the applicant for housework and shopping prior to their separation.

His Honour rightly considered he was bound to sentence the applicant with regard primarily to the matter set out in section 9(4) of the Penalties and Sentences Act of 1992. His Honour also rightly noted that because of section 9(3) of the Act, the principles set out in section 9(2)(a) of the Act, namely that imprisonment should only be a last resort, did not apply.

His Honour was concerned that he was primarily required to take into account the factors set out in section 9(4)(a), "The risk of physical harm to any members of the community if a custodial sentence were not imposed," and 9(4)(b), "The need to protect any members of the community from that risk." But other factors are also listed in section 9(4) of the Act. I will not list them here, but they include:

"(g)the past record of the offender, including any attempt at rehabilitation, and the number of previous offences of any type committed;

(h)the antecedents, age and character of the offender."

His Honour rightly noted the serious aspects of this offence, particularly where the applicant was aware of the complainant's vulnerability because of her disability and assaulted her regardless. The community regards seriously incidents of domestic violence like this, and the Courts will impose significant deterrent penalties to show the disapprobation of the Courts and the community.

The offence could however, in my view, not be described as one of the worst assault occasioning bodily harm cases, as His Honour twice described this offence on one occasion referring to the offence no doubt mistakenly as assault occasioning grievous bodily harm.

These comments by His Honour in the context of this case in my view show that his sentencing discretion miscarried, and although the sentence imposed by him may not necessarily be outside the appropriate range, this Court can exercise its discretion afresh.

Although there are serious aspects to this offence regard must also be had to the antecedents of the applicant. He is 49 years of age and has no prior convictions. The incident in these circumstances does seem to be an isolated offence. His Honour's comments that the case was one where the past conduct of the applicant indicated similar likely future conduct is equally consistent with the applicant not reoffending in the future, especially if there are controls over his behaviour such as are imposed by a suspended sentence.

Fortunately the complainant was not seriously injured and I note the eye witness did not suggest the applicant behaved in a frenzied or particularly violent manner, describing the incident as a scuffle.

Whilst a conviction undoubtedly should have been recorded in this instance for my part I would impose a fully suspended sentence.

The length of sentence suggested by His Honour and the time for which that sentence should be suspended were, in my view, appropriate.

I note the applicant has been in prison for five days from 22 July 1998 until 27 July 1998. For a person of the applicant's background this was, no doubt, a salutary lesson to him and has brought home to him the serious view the community and the Courts take of his conduct. That is a significant factor in forming my view that the sentence should now be suspended forthwith.

For my part I would grant the application for leave to appeal against the sentence and vary the sentence below by ordering that the sentence be suspended forthwith. In so far as it may be necessary I would order that a conviction is recorded. Otherwise the sentence below would be confirmed.

McPHERSON JA: I agree with the reasons given by the President. I wish to add only that, for my part, our decision reducing the penalty imposed here should not be viewed as a precedent for regarding assaults of this kind as of little or no consequence.

However, the circumstances in which the assault took place, the appellant's otherwise unblemished record, the natural disinclination to return him to custody after he has been granted bail, and the unexpected severe view that His Honour formed of this incident all lead me to conclude that the sentence proposed by the President is the appropriate course to take.

SHEPHERDSON J: I agree with what has been said by the President and by Mr Justice McPherson. For my part the Court exercises the sentencing discretion afresh, because as appear from the learned sentencing Judge's comments His Honour mistakenly said the offence was assault occasioning grievous bodily harm.

As has been said His Honour sentenced the applicant to nine months imprisonment, suspended after serving three months of that time, and imposed an operational period of three years from 22 July 1998.

In my view the assault by the applicant on the defenceless, diminutive and permanently injured complainant was one which might reasonably have been expected to attract a sentence of imprisonment whether wholly or partly suspended.

In my view the sentence imposed should be affirmed as has been said by the learned President, save that the term of the actual imprisonment should be varied from three months to five days and I agree with the President that the conviction must be recorded, and I would declare that the five days which he has served be deemed time served under the sentence.

THE PRESIDENT: The orders of the Court are the application for leave to appeal against sentence is granted.

The sentence below is varied by ordering that the sentence be suspended forthwith. In so far as it may be necessary to order, a conviction is recorded, otherwise the sentence below is confirmed.

MR RUTLEDGE: I am sorry, Your Honour. Maybe I just missed it but as part of your formal order did you declare that the five days-----

THE PRESIDENT: Well, I do not think it is necessary, because the sentence is now suspended forthwith.

THE PRESIDENT: That was a factor in coming to that conclusion that it was the appropriate sentence. It seemed to be the neatest way to make the orders.

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