R v Warwick [2006] QCA 83

Court of Appeal (Qld)|2006-03-22|Before: Williams and Keane JJA, Douglas JSeparate reasons, for judgment for each member of the Court, each concurring as to the order, made.

Director of Public Prosecutions (Queensland) for the respondents

WILLIAMS JA: I will ask Justice Douglas to deliver his reasons first.

DOUGLAS J: The applicant was sentenced to 12 months' imprisonment on 14 November, 2005 on a charge of assault occasioning bodily harm. On 31 October, 2004 he was a house guest in the complainant's home. At some stage during the evening of that day the 42 year old complainant asked the applicant and his girlfriend to leave the bedroom normally used by her son which she had previously allowed them to use for the night. Her boyfriend was coming over and she wanted them to leave the house. This led to an argument between the applicant and his girlfriend and the complainant culminating in the applicant pushing the complainant in the chest and punching her in the face with enough force to fracture the left side of her jaw. There was disagreement at the hearing as to whether there were several blows or only one.

The applicant is a 30 year old deaf mute who has schizophrenia. He was 29 when he committed the offence. He admitted striking the complainant when interviewed by the police and pleaded guilty before the learned sentencing judge. He had previous convictions for offences of assault occasioning bodily harm in 1995 and 2002, common assault in 2004 and two breaches of a domestic violence order in 2004. The second of those two breaches occurred after the commission of this offence but before the applicant was charged. He had previously been the subject of probation and community service orders, had received suspended terms of imprisonment and had been required to serve actual terms of imprisonment. He had been released from custody shortly before the commission of the offence.

The learned sentencing judge said that she took into account the fact that the applicant had pleaded guilty quickly, referred to his having breached suspended terms of imprisonment before and to his having been given the benefit of community based orders in the past and concluded that imprisonment was called for in these circumstances, given his history. She also thought that it was inappropriate to suspend all or any of the term of imprisonment.

In determining that the appropriate sentence was 12 months' imprisonment, the learned sentencing judge also took into account the applicant's difficulties as a deaf mute with schizophrenia and the fact that he had already served some time in prison for breaching his bail in relation to this offence. The applicant submitted that her Honour erred in imposing a sentence of 12 months on the basis that, assuming that it reflected a reduction of a plea of guilty of about one third, it must by inference have been based on a head sentence in the order of about 16 months.

The applicant's counsel accepted that actual imprisonment was warranted, that a head sentence up to 12 months was open and that a partial suspension was inappropriate given his previous breaches of similar orders.

It seems likely that, in taking into account the plea of guilty, her Honour reduced the term of the sentence she would have otherwise imposed. This follows from her refusal to entertain the suggestion that part of the sentence be suspended. Unfortunately, her Honour has not stated how she took the guilty plea into account, something that should have been done as an essential part of the transparency of the sentencing process, see R v Woods [2004] QCA 204 at paragraphs 7 to 10, and sections 13(3) and 13(4) of the Penalties and Sentences Act 1992 (Qld).

In those circumstances it is arguable that it is open to this Court to exercise the sentencing discretion anew, particularly if the Court was satisfied that her Honour's sentence did not take the plea of guilty into account. Having regard to her own comments, however, the only likely inference is that she did take it into account by imposing a lesser sentence than she would have otherwise. The question then becomes whether the authorities support the imposition of a sentence of more than 12 months imprisonment capable of being reduced to that term in recognition of the plea of guilty.

We were referred to an a number of earlier decisions of this Court including that in R v Seirakowski [1992] QCA 3, it seems to me to be the most comparable decision to which we were referred. As was the situation here, the applicant had a history of convictions of a similar kind and had trouble controlling his violent impulses particularly when he had been drinking. He assaulted the complainant with whom he had lived until a few days before and Pincus JA said that a rational distinction could be drawn between the circumstances of the assault in that case where he assaulted the complainant after he had forced his way into the premises where they used to live and a violent incursion into the premises of a complete stranger. There the complainant did not suffer a fracture of the nature of the complainant in this case but she was assaulted and kicked in various parts of the body including a number of kicks while she was lying on the floor.

The sentence originally imposed in that case was one of 18 months imprisonment where the applicant had already spent four and a half months in custody which was said to be the equivalent of two years and three months' imprisonment. He too, had pleaded guilty. On the appeal the Court reduced his sentence to 12 months, "taking into account of course the four and a half months which had, at the date of sentencing, been spent in custody". The effect of the sentence as varied by the Court of Appeal was said by Thomas J to be comparable to a sentence of one year and nine months when one took into account the four and a half months already served.

It is legitimate to conclude therefore that a sentence significantly in excess of 12 months was open to be imposed by her Honour in this case, even taking into account the circumstance that in Seirakowski there were two counts of breaking and entering as well as assault occasioning bodily harm. In the circumstances, the appropriate conclusion is that it was open to her Honour to impose a sentence significantly in excess of 12 months imprisonment had there not been a plea of guilty and that she, in taking into account his plea of guilty, should be taken to have reflected that plea by reducing the sentence she would have otherwise have imposed to 12 months imprisonment. That sentence appears to me to be one within the range of a proper exercise of her sentencing discretion taking into account the applicant's record and one which should not be disturbed. I would dismiss the application.

WILLIAMS JA: The order of the Court is that the application is dismissed.

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