Court of Appeal (Qld)|2008-09-12|Before: McMurdo P, Fraser JA and Philippides JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
McMurdo P, Fraser JA and Philippides JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASESENTENCE – OFFENCES AGAINSTTHE PERSON – respondent pleaded guiltyto assault occasioning bodily harm, entering a vehicle to commit an indictableoffenceand wilful damage – offences committed during the operationalperiod of a suspended sentence imposed for dangerous operationof a motorvehicle causing grievous bodily harm – sentencing judge imposed 12 monthsof the 21 months remaining under the suspendedsentence – sentencing judgeimposed concurrent sentences of 12 months for each of three recent offences– sentencingjudge set parole release date as date of sentence and orderedrestitution be paid for the damage caused – whether the wholeof theunserved portion of the suspended sentence should have been imposed –
whether the activated part of the suspended sentence
should have been cumulative
on the sentences for the recent offences – whether the sentence was
manifestly inadequate
Penalties and Sentences Act 1992 (Qld), s 147
Dinsdale v The Queen (2000) 202 CLR 321
[2000] HCA 54,
citedR v AS
ex parte A-G (Qld) [2004] QCA
259, consideredR v Briody (2002) 134 A Crim R 170
[2002] QCA
364, consideredR v Conway
ex parte A-G (Qld) [2002] QCA
507, considered R v Getawan (2005) 156 A Crim R 128
[2005] QCA
350, consideredR v KU & Ors
ex parte A-G (Qld) [2008] QCA
154, citedR v Lude
R v Love [2007] QCA
319, considered
Judgment (43 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - respondent pleaded guilty to assault occasioning bodily harm, entering a vehicle to commit an indictable offence and wilful damage - offences committed during the operational period of a suspended sentence imposed for dangerous operation of a motor vehicle causing grievous bodily harm - sentencing judge imposed 12 months of the 21 months remaining under the suspended sentence - sentencing judge imposed concurrent sentences of 12 months for each of three recent offences - sentencing judge set parole release date as date of sentence and ordered restitution be paid for the damage caused - whether the whole of the unserved portion of the suspended sentence should have been imposed - whether the activated part of the suspended sentence should have been cumulative on the sentences for the recent offences - whether the sentence was manifestly inadequate
Office of the Director of Public Prosecutions (Queensland) for the appellant
[11]
**[1] McMURDO P: Robert James Wilkins pleaded guilty in the District Court at Toowoomba on 2 June 2008 to assault occasioning bodily harm (count 1), unlawful entry of a vehicle to commit an indictable offence (count 2) and wilful damage (count 3). Significantly, he committed the offences on 26 August 2007 during the three year operational period of a suspended two year term of imprisonment imposed on 1 February 2007 for dangerous operation of vehicle causing grievous bodily harm. He was also dealt with for the breach of that suspended sentence on 2 June 2008. He was ordered to serve 12 months of the remaining 21 months of the suspended sentence with parole fixed on 2 June 2008, that was, immediately. In respect of each of counts 1, 2 and 3, he was also sentenced to 12 months imprisonment with a parole release date fixed on 2 June 2008, that was, immediately. All sentences were concurrent. He was ordered to pay restitution of $1,427.91 in respect of count 3. The appellant, the Attorney-General of Queensland, appeals against that sentence contending that it is manifestly inadequate in that it failed to adequately reflect the gravity of the offences generally and in this particular case; or to take sufficient account of the aspect of general deterrence; and that the judge gave too much weight to factors of mitigation.
[12]
[2] Mr Wilkins was 21 at the time of his most recent offences and is now 22 years old. He has a criminal history. In July 2003, when he was 17 years old, he was sentenced for numerous property offences to two years probation and 200 hours community service with no conviction recorded. In October that year, he was dealt with for further property offences which occurred at about the time of the offences for which he was sentenced in July. He was placed on a further 20 months probation order with no convictions recorded. On 2 February 2004, he was dealt with for breaching both probation orders because he committed a regulatory offence whilst on probation. He was fined without conviction for the regulatory offence and the breaches.
[13]
[3] As I have noted, on 1 February 2007 he pleaded guilty to an ex officio indictment charging dangerous driving causing grievous bodily harm. He was then 20 years old. The circumstances of that offence were that he drove a motor vehicle at excessive speed, lost control, crashed and the vehicle caught fire. His passengers were two 15 year old girls. One suffered a perforated bowel and the other a laceration to her liver. The sentencing judge noted that Mr Wilkins was remorseful and that he had "an extremely poor childhood". He was sentenced to two years imprisonment suspended after three months for a period of three years because of the mitigating factors.
[14]
[4] The circumstances of the offences of 26 August 2007 are as follows. The complainant was a 35 year old part-time taxi driver and full-time accountancy student. He was driving customers in Toowoomba at 3.00 am and pulled into a driveway to drop them off. Mr Wilkins and a woman walked towards him. They spoke to the passengers who were still in the rear of the taxi. The passengers paid the fare and got out. Mr Wilkins lent in through the driver's window and fiddled with the computer mounted on the taxi's dashboard. The complainant asked him if he wanted to get into the taxi. For no known reason, Mr Wilkins then became aggressive and yelled at the driver, calling him a "fucking black Indian" or words to that effect. He then reached through the driver's side window and punched the hapless complainant to the jaw three or four times (count 1).
[15]
[5] A man ran from the house and restrained Mr Wilkins but he broke free and returned to his victim, who was still seated in the taxi. Mr Wilkins tried to open the taxi door while the complainant tried to hold it shut and to wind up the window, rightly fearing a further assault. Mr Wilkins said, "I'm going to fucking kill this Indian Black" or words to that effect. Mr Wilkins eventually succeeded in opening the door. He kicked the complainant three or four times in the area of his legs and/or waist (count 2).
[16]
[6] Mr Wilkins was again pulled away by another person. The complainant was then able to close the taxi door and reverse out of the driveway. Mr Wilkins followed the vehicle on foot and punched and kicked at it on the driver's side. He also threw something which struck the taxi and made a noise on impact. The complainant drove away with Mr Wilkins running after the vehicle (count 3). Mr Wilkins caused $1,427 worth of damage to the vehicle.
[17]
[7] The complainant was seen by a doctor at the Toowoomba Hospital at 5.16 am who noted a contusion to the right mandible and treated him with simple analgesia. A victim impact statement tendered at sentence referred to the understandably concerning effect of these offences on the completely innocent complainant.
[18]
[8] The prosecutor at sentence made the following submissions. The suspended period of imprisonment should be fully activated and a cumulative penalty should be imposed for the August 2007 offences. The effective overall head sentence should be less than three years imprisonment and a parole release date fixed.
[19]
[9] Mr Wilkins' counsel at sentence made the following submissions. He emphasised his client's grossly dysfunctional upbringing. He was one of nine children to an abusive mother. His father died in 2000. All the children were placed in the care of the state. Mr Wilkins was in care from the age of seven. At the end of his year 11 schooling he fell into bad company and commenced offending. By the time of his sentence he was living with one sister and her partner and their baby. His sister was supportive of him and was present in court. Despite his unhappy background, he had a solid work history and was in employment at the time of sentence, despite then having two broken wrists from a motor bike accident. Although he did not have an alcohol or drug problem, he accepted that he was intoxicated at the time of the commission of these offences; that was the only explanation for his unacceptable conduct which was out of character. He offered to make restitution for the damage to the complainant's vehicle. He had no prior convictions for offences of violence. The suspended sentence which he breached was imposed for an offence of a very different nature so that it would be unjust to order that he now serve all of it.
[20]
[10] In reply, the prosecutor emphasised the viciousness of the assault and submitted that a period of actual custody should be imposed.
[21]
[11] The learned primary judge made the following remarks before imposing sentence. Mr Wilkins had pleaded guilty. His conduct towards the complainant was despicable and appalling. Mr Wilkins had a difficult upbringing. The judge initially considered that a significant period of actual custody was warranted but ultimately determined to structure the sentences to give Mr Wilkins one final opportunity but with "a significant sting in the tail". The assault was of a relatively minor nature and Mr Wilkins had offered to make restitution for the damage to the vehicle. These two factors influenced his Honour's decision not to jail Mr Wilkins. The August 2007 offences were one episode and were of a different type of offending to the dangerous driving offence the subject of the suspended sentence. His Honour did not intend to order Mr Wilkins to serve the whole of the outstanding suspended sentence of 21 months but said it would not be unjust to order him to serve part of it, namely 12 months, concurrently with the other 12 month sentences he intended to impose on the August 2007 offences. The sentence imposed would require Mr Wilkins to report to a parole officer for 12 months. If he re-offended, not only would his parole be breached, but the unserved portion of the suspended sentence would remain to be served.
[22]
[12] Mr Moynihan SC, who appears for the appellant, made the following submissions. The sentence is manifestly inadequate in two ways. First, the judge should have imposed some actual time in custody. Second, the judge should have ordered that the terms of imprisonment for the August 2007 offences be served cumulatively on the fully activated suspended term of imprisonment. A mere three months after being released from custody on the suspended sentence and six months after its commission, Mr Wilkins "viciously, persistently and without cause attacked a vulnerable taxi driver going about his business, causing him bodily harm and damaging his vehicle". In such circumstances, courts must impose deterrent sentences: R v Briody,[1] R v AS; ex parte A-G (Qld)[2] and R v Getawan.[3] The racial overtones of the assault were of particular concern. The offences were committed in breach of a court order and Mr Wilkins had previously failed to take advantage of community-based orders. For these reasons, Mr Wilkins' prospects of rehabilitation were significantly diminished. This Court's recent decision in R v Lude; R v Love[4] supports the imposition of a custodial sentence for these offences.
[23]
[13] Mr Devereaux SC, who appears for Mr Wilkins in this appeal, made the following submissions. The judge took care to frame a thoughtful sentence that allowed Mr Wilkins' promising rehabilitation in the community to continue, but under strict controls which made clear that it was unquestionably his last chance. The combination of orders permitted him to pay compensation, allowed him to maintain his job in the community, ensured he was subject to the supervision of parole for 12 months and left him with nine months of a suspended sentence to serve should he re-offend on or before 1 February 2010. Whether to make a sentence cumulative always depends on the circumstances of the case; as this Court recognised in R v Conway; ex parte A-G (Qld)[5] it is not possible to lay down clear guidelines as to when a cumulative sentence is appropriate. A cumulative sentence was not mandatory in the present case. Conway is clearly distinguishable on its facts in that Conway was a mature recidivist sexual offender against his own step-daughter: in such circumstances a cumulative sentence was entirely appropriate. The August 2007 offences were of a completely different type to the dangerous operation of a motor vehicle offence the subject of the suspended sentence. For that reason, the judge was entitled to find it was unjust to activate the whole period of the suspended sentence under s 147Penalties and Sentences Act 1992 (Qld) and to activate only 12 months of it. Mr Wilkins, who was present at the appeal hearing, had successfully completed two and a half months of his sentence on parole. He remained in employment and had arranged to have regular amounts taken from his pay to meet his restitution obligations. He was soon to undertake an alcohol and drug abuse awareness program as part of his parole order.
[24]
[14] In Lude and Love, the applicants were initially sentenced to 18 months imprisonment, with a parole release date fixed after six months, after pleading guilty to the offence of assault occasioning bodily harm in company. They claimed the sentence was manifestly excessive. They had been drinking and punched and kicked a taxi in Hastings Street, Noosa. When a taxi driver remonstrated with them, Love punched him in the head and face. Lude then joined in the assault, punching and kicking the taxi driver, who was then assisted by others. The complainant suffered a laceration to the bridge of his nose; the nasal septum was deviated to one side; his eyes were blackened; his neck, lumbar spine and ribs were tender; and his chest was bruised. His upper denture plate was broken and he had cuts on the inside of his mouth. Ultimately, Lude and Love each took part in police interviews and made admissions. Love was 20 years old and 21 at sentence, with a minor criminal history. He had had a troubled upbringing and favourable references from past employers were tendered on his behalf. Lude was 21 at the time of the offence and 23 at sentence. When he was 17 he was badly burned in a car accident in which his cousin was incinerated despite his attempt to rescue him. Lude was employed and had a 14 month old child from a relationship which ended shortly before sentence. The sentencing judge considered deterrent custodial sentences were appropriate for offenders involved in crimes of unprovoked gratuitous violence. This Court considered that actual imprisonment was not outside the range of a proper exercise of sentencing discretion, but 18 months imprisonment was excessive, having regard to the facts that no weapon was used; there was no pre-meditation; the assault was not committed in connection with any criminal purpose; and it did not result in any serious injury. This Court noted that the imposition of six months actual custody did not properly recognise the importance of rehabilitation for young offenders without significant previous convictions. The sentence did not reflect the important mitigating factors, including co-operation with police and early pleas of guilty. This Court re-sentenced Love, who was the instigator of the assault and had some criminal history, to nine months imprisonment with a parole release date fixed at 8 November 2007, that is, after serving three months. Lude was sentenced to nine months imprisonment with a parole release date fixed at 2 October 2007, that is, the date of the delivery of judgment (after serving just under two months).
[25]
[15] Lude and Love recognises that actual imprisonment in that case was within the range of a proper exercise of the sentencing discretion. It is not authority for the proposition that young offenders with promising prospects of rehabilitation, who have pleaded guilty and co-operated with the administration of justice and who are being sentenced for the first time for an offence of violence which is not in the most serious category of violence, must serve a period of actual custody.
[26]
[16] There are very serious aspects to Mr Wilkins' offending on August 2007. He behaved violently and irrationally and made offensive racist slurs while under the influence of alcohol. The offences and the injuries suffered by the complainant may have been even more serious if Mr Wilkins' friends had not restrained him. The complainant's work as a taxi driver in the early hours was providing a valuable service to the community. In providing this service, he was vulnerable to those like Mr Wilkins. Offences of this kind must result in salutary deterrent penalties. Mr Wilkins committed these worrying offences in breach of a suspended sentence imposed but six months earlier and a mere three months after his release from custody. Under s 147(2)Penalties and Sentences Act 1992 (Qld) the judge was required to order Mr Wilkins to serve the whole of the suspended imprisonment unless of the opinion it would be unjust to do so. In making that decision, the court is required to consider the matters listed in s 147(3). It does not seem from the judge's sentencing remarks that his Honour undertook that exercise. Further, an effective sentence of 12 months imprisonment with immediate parole was a manifestly inadequate punishment to reflect Mr Wilkins' culpability for committing counts 1, 2 and 3 during the operational period of the suspended sentence. The appeal should be allowed and this Court must re-sentence Mr Wilkins.
[27]
[17] A consideration of the matters listed in s 147(3) did not make it unjust to order Mr Wilkins to serve the whole of the unserved 21 months of the suspended imprisonment. Lude and Love suggests that a sentence in the range of nine months imprisonment was appropriate for the August 2007 offences which, as the sentencing judge recognised, should be considered as one episode of offending. Although Lude and Love was a more serious offence of violence in that it was in company and the complainant was more seriously injured, Mr Wilkins had a criminal history and committed the offence during the operational period of a suspended sentence. In this case, it is, for the reasons contended for by Mr Moynihan, entirely appropriate to order that the sentences for the August 2007 offences should be concurrent with each other but served cumulatively on the previously suspended imprisonment.
[28]
[18] It then becomes necessary to moderate the total effect of the cumulative sentences so that the combined sentence is not crushing or unfair. A sentence of six months imprisonment on each of the August 2007 offences should be imposed, concurrent with each other but cumulative on the previously suspended sentence.
[29]
[19] This makes a combined period of imprisonment of 27 months. The next question is whether this Court should, like the primary judge, fix a parole release date at the original sentence date, or, consistent with Mr Moynihan's submissions, require Mr Wilkins to serve some period of actual custody.
[30]
[20] Lude and Love demonstrates that a period of actual imprisonment could well have been imposed in this case. I agree, however, with the primary judge that the better course is to now order immediate release on parole in this case. This is an Attorney-General's appeal. Mr Wilkins has been successfully serving his sentence on parole for two and a half months. Concern about double jeopardy requires this Court to sentence at the moderate end of the applicable range.[6] The offence of assault occasioning bodily harm was Mr Wilkins' first offence of personal violence. Fortunately, the physical injuries suffered by the complainant were relatively minor. Mr Wilkins is still a young man and pleaded guilty at an early stage. He has had a troubled background and seems to be making some progress towards his rehabilitation despite some significant lapses. The fact that he is employed and has arranged for restitution to be taken from his wages in regular payments is a significant matter in his favour. Were he now sentenced to actual custody, he would probably lose his job and be unable to make that restitution. The sentence I propose meets the requirements of particular and general deterrence, whilst allowing this young man with a troubled background one final opportunity to continue his rehabilitation whilst working and paying restitution.
[31]
2. Set aside the sentence imposed at first instance and instead make the following orders:
[32]
(a) In respect of the sentence of two years imprisonment imposed at the District Court at Toowoomba on 1 February 2007, the respondent is to serve the whole of the suspended imprisonment, a period of 21 months.
[33]
(b) In respect of counts 1, 2 and 3 on Indictment No 124 of 2008, on each count the respondent is to be imprisoned for a period of six months. Those sentences are concurrent with each other but cumulative upon the 21 month period of imprisonment imposed under order 2(a), above.
[34]
(c) In respect of all sentences imposed in orders 2(a) and (b), above, the date the respondent is to be released on parole is fixed at 2 June 2008 (the date of the original sentence on Indictment No 124 of 2008).
[35]
(d) The offender is ordered to pay restitution to Palcrest P/L (re taxi 1153) P O Box 108, Harlaxton, 4350, in the sum of $1,427.91, that order being referred to SPER for recovery
[36]
**[21] FRASER JA: I agree with the orders proposed by the President and with her Honour's reasons for those orders.
[37]
[22] PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of McMurdo P. I agree with the reasons of her Honour and with the proposed orders.**