Court of Appeal (Qld)|1999-12-10|Before: de Jersey CJ (diss), McMurdo P and Thomas JA, Joint reasons for judgment, of McMurdo P and Thomas JA, de Jersey CJ dissenting.
de Jersey CJ (diss), McMurdo P and Thomas JA, Joint reasons for judgment, of McMurdo P and Thomas JA, de Jersey CJ dissenting.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THE
PERSON – ASSAULTS – SENTENCING
CRIMINAL LAW –
JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OTHER OFFENCES AGAINST THEPERSON – ASSAULTS – SENTENCINGCRIMINAL LAW –JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT –SENTENCE – FACTORS TO BE TAKENINTO ACCOUNTAPPEAL AND NEW TRIALAND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINSTSENTENCE – APPEAL BY ATTORNEY-GENERALOR OTHER CROWN LAW OFFICER –APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THEPERSONWilful damage and assaults on four separate persons –previous decisions of Court of Appeal discussed – concession madebylearned Crown prosecutor below – whether appropriate to give effect tosubmissions now made on behalf of Attorney-Generalinconsistent with concessionsbelow – prominent citizen given non-custodial sentence for relativelyserious offences –legal difficulties in reformulating appropriate order
– substituted order of imprisonment for 18 months, wholly suspended for
four years
R v Burnham & McLean CA Nos 398, 400 of 1998, 25
March 1999, distinguished
R v Conquest, ex parte Attorney-General CA
No 295 of 1995, 19 December 1995, applied
R v Gritt CA No 95 of 1993,
3 June 1993, distinguished
R v Harris, CA No 371 of 1996, 22 October
1996, discussed
R v Hughes [1998] QCA 61
[1999] 1 Qd R 389, (1998) 100 A Crim R 336,
considered
R v Kazakoff, ex parte Attorney-General CA No 236 of 1998,
27 August 1998, distinguished
R v M, ex parte Attorney-General [1999]
QCA 442
CA No 251 of 1999, 2 November 1999, considered
R v Packer, ex
parte Attorney-General CA No 62 of 1998, 6 May 1998, discussed
R v
Rowe & Talbott CA Nos 149, 152 of 1996, 23 July 1996, discussed
R
v Smallwood, ex parte Attorney-General CA No 30 of 1997, 15 April 1997,
discussed
R v Tricklebank [1993] QCA 268
[1994] 1 Qd R 330, (1993) 69 A Crim R 351,
discussed
R v Walsh, Sayer & Thompson, ex parte Attorney-General
CA Nos 158-160 of 1998, 28 July 1998, applied
Judgment (67 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the appellant
[2]
[1] de JERSEY CJ: The factual circumstances giving rise to this appeal by the Honourable the Attorney-General, and the relevant considerations, are set out and discussed comprehensively in the joint reasons for judgment of McMurdo P and Thomas JA, which I have had the advantage of reading.
[3]
[2] The Court has repeatedly warned that any serious instance of the offence of assault occasioning bodily harm will ordinarily attract imprisonment. A recent example is Walsh, Sayer and Thompson CA Nos 158, 159 and 160 of 1998, 28 July 1998:
[4]
"Ordinarily a cowardly vicious attack such as occurred outside this hotel, with three men aggressively attacking another, punching, kicking and dragging him about, while at a stage he was likely unconscious, conceding that they inflicted bodily injury, would warrant a term of imprisonment, even where the offenders were first offenders, and even if wholly suspended ... The point has frequently been made in the cases. See for example Smallwood (Queensland Court of Appeal CA No 30 of 1997, 15 April 1997, unreported) and Rowe and Talbott (Queensland Court of Appeal CA Nos 149 and 152 of 1996, 23 July 1996, unreported)."
[5]
[3] In Walsh, Sayer and Thompson, the Court of Appeal imposed terms of imprisonment which were, however, wholly suspended. They were wholly suspended largely to reflect the offenders' previously unblemished records and a substantial degree of precedent provocation which had contributed to the assaults.
[6]
[4] There is no doubt in my mind that Murrandoo Yanner should be actually imprisoned. His was a substantial episode of unprovoked vicious and brutal thuggery, involving as many as four innocent victims, people who were thereby both physically injured and emotionally traumatised. Requiring him to carry out community service, even the maximum of 240 hours, and subjecting him to even a lengthy term of probation, amounted to an unequivocally inadequate response to crime of that magnitude. The community, especially under the current sentencing regime, rightly expects a salutary response from the courts to crimes of substantial violence - as here - against the persons of law abiding citizens innocently going about their business.
[7]
[5] Other cases confirm that for multiple offences of this seriousness (here, one assault occasioning bodily harm in company, three assaults occasioning bodily harm and two offences of wilful damage to property), committed over an appreciable period of time, allowing for there being multiple victims, offences committed by a mature person with a not irrelevant previous criminal history, and at a time when he was on a "good behaviour bond", imprisonment of the order of two years or more would be amply warranted. See Burnham and McLean CA Nos 398, 400 of 1998, 25 March 1999, and Packer CA 62 of 1998, 6 May 1998.
[8]
[6] When I refer to Murrandoo Yanner's "not irrelevant " prior criminal history, I have in mind its including convictions for the possession of a weapon in a public place in a manner likely to cause alarm, failing to take precautions to secure weapons, wilful and unlawful damage to property, breach of bail and two instances of unlawful assembly. I respectfully consider the learned sentencing judge to have erred in regarding the convictions for unlawful assembly, which he styled "social or political matters which have led him into conflict with the police", as irrelevant. They were still relevant as indicating an unpreparedness on the part of this respondent in those situations to conduct himself within the parameters of the law. Those convictions were obviously not as significant, in determining penalty here, as the previous convictions for weapons offences and destruction of property (not to suggest however that those convictions should carry major weight), but they should not, for the reason I have expressed, have been ignored as entirely irrelevant.
[9]
[7] The concession by the prosecutor before the learned judge that the appropriate penalty would be a fully suspended term of imprisonment, allowing in addition that community service would nevertheless be "within range", while significant, should not deny this Court the right now to impose a proper penalty, if convinced there has been an injustice. (See Conquest CA No 395 of 1995, unreported judgment of 19 December 1995, per McPherson JA and Thomas J (as he then was) page 7). The Court should of course be circumspect about intervening in these circumstances: Malvoso [1989] HCA 58; (1989) 168 CLR 227, 240. I am satisfied however that the concession was quite wrong, for this level of violence so obviously warranting actual incarceration. The manifest disparity between a proper sentence and that imposed justifies this Court's intervening, notwithstanding the concession, to remedy a manifest injustice.
[10]
[8] Adopting the moderate approach appropriate to the determination of an Attorney General's appeal, and in light of the other circumstances which follow, I consider that Murrandoo Yanner should be imprisoned for eighteen months. But that should be subject to a degree of suspension leading to his serving less than the usual one-half of that period. The reasons for that are, again, the moderation to which I have referred, the pleas (albeit late pleas) of guilty and expression of remorse; the lapse of time which has occurred since the offences (committed in May 1997, with sentencing in July 1999), although it should be noted that no "blame" for that attaches to the Crown; and the circumstance that the respondent has carried out 170 hours of the 240 hours community service ordered against him. I do however consider, with all due respect to the contrary view, that to suspend the sentence entirely would give undue weight to the aggregation of those circumstances, and send quite the wrong message in an area where the need for deterrence is strong. Murrandoo Yanner should have to serve six months of actual incarceration for these crimes. Because of the gravity of the offences, and his prior record, convictions should be recorded - as required anyway by s 145 of the Penalties and Sentences Act 1992.
[11]
[9] I would in respect of the respondent Murrandoo Yanner, set aside the orders for community service and probation and in lieu thereof, order that he be imprisoned for eighteen months, suspended after six months for an operational period of four years. Convictions should be recorded.
[12]
[10] The respondent Bruce Yanner falls into a somewhat different category. He was exposed to a degree of arguable "provocation", although it involved an apparently understandable and reasonable challenge; and this respondent was involved in much less of the attack (only one victim) than was Murrandoo Yanner. Nevertheless in my view he should also, consistently with the approach to which I referred at the outset, have been imprisoned, but the imprisonment should have been fully suspended. I note, as a matter of particular significance, that his prior criminal history included convictions for assaulting and obstructing police, unlawful assault and assault occasioning bodily harm.
[13]
[11] I would allow the appeal in respect of the respondent Bruce Yanner, set aside the orders for community service and probation made in respect of him, and in lieu, order that he be imprisoned for six months, but fully suspended, for an operational period of two years. Convictions should, again, be recorded, in light of the seriousness of the offences and his previous record.
[14]
[12] McMURDO P AND THOMAS JA: These are appeals by the Attorney-General against non-custodial sentences imposed on Murrandoo Yanner and Bruce Yanner in the District Court at Mt Isa on 30 July 1999. The offences included assaults by one or other of the respondents on four separate persons. They occurred during a visit which could best be described as a foray by the respondents in the vicinity of the Burketown Hotel in May 1997. The incident extended over a substantial period, possibly as long as 40 minutes.
[15]
[13] Murrandoo Yanner was convicted of six offences. Two were of wilful damage and four were of assault occasioning bodily harm, one of which had the aggravating circumstance of the assault being committed in company. The sentences imposed were probation for three years, community service (240 hours) and payment of compensation for three of the victims totalling $2,500.
[16]
[14] Bruce Yanner was convicted of three offences. Two were of wilful damage and one was of assault occasioning bodily harm in company. His sentences were probation for two years, community service (160 hours) and payment of $500 compensation.
[17]
[15] The statutory maximum sentence for the offences involving assaults was at the time seven years imprisonment.
[18]
[16] The relevant events commenced when a barmaid at the Burketown Hotel (Ms Lesley Portch) and her husband (Mr Rice) drove home to their premises at the rear of the hotel on a Sunday night. The hotel was closed. They saw a motor vehicle with its headlights extinguished drive around the corner and stop outside the hotel. Subsequently they noticed that Bruce Yanner was the driver of the vehicle and that one Bartley was coming out from behind the hotel carrying some boxes of chips. When the vehicle drove away they followed it until it stopped some distance along a dirt track. Mr Rice asked Bruce Yanner if he had broken into the hotel to which he replied that he did not know anything about it. Mr Rice called him a liar upon which Bruce Yanner shaped up and challenged him to fight. A minor fight ensued. Ms Portch said that if Bruce Yanner did not leave she would release the dog that was in the back of her vehicle. Bruce Yanner replied that he would go down and get their dog, and left the scene chased by Ms Portch's dog although it is not suggested that he was actually bitten or hurt by it.
[19]
[17] Mr Rice and Ms Portch returned to the hotel. Sergeant Hill arrived and left with Mr Rice to find Bartley's vehicle and recover the stolen property, leaving Ms Portch at the hotel. As she waited outside her home, with her children still in the vehicle, both Murrandoo Yanner and Bruce Yanner arrived and started to argue with her. They started to jostle, push and shove her in the course of which her top was removed.
[20]
[18] At this stage Mr Rice returned in the police car and immediately went to the assistance of his wife. A fight ensued. The Crown prosecutor described Murrandoo and Bruce Yanner as "double banking" Mr Rice, that is to say two men were fighting one. In the course of these hostilities Mr Rice fell to the ground whereupon the Yanner brothers proceeded to kick and punch him, including kicks to the throat and the face, slitting open his top lip. Ms Portch came to her husband's aid. Murrandoo Yanner punched her in the face. This produced a small laceration and a swelling to the eye.
[21]
[19] A little later Mr Wallaston, the nurse in charge of the local health clinic arrived to provide assistance to any injured person, having been called to do so. Murrandoo Yanner immediately detached himself from the other persons and walked towards Mr Wallaston saying "What do you think you're doing here?" Mr Wallaston moved backwards slightly saying "I'm the nurse from the hospital, I was asked to come here and help". Without warning Murrandoo Yanner punched him in the forehead knocking him to the ground and stunning him. Whilst Mr Wallaston was lying on the ground Murrandoo Yanner was standing over the top of him. Mr Wallaston required three stitches to a laceration on his forehead.
[22]
[20] Whilst these events were happening Sergeant Hill was present. He recorded the sounds of the various incidents on a tape which ran for about 40 minutes. The Sergeant apparently chose to try to settle matters down and avoid escalation rather than attempting to arrest offenders.
[23]
[21] Both Murrandoo Yanner and Bruce Yanner then proceeded to throw various items at the front of Mr Rice's vehicle, causing some damage to it. Various dents were made to the side and front of the vehicle and the side mirror was broken. The extent of the damage was not assessed because Mr Rice did not have the money to fix the vehicle and the prospect of living without the family car for a number of days deterred him from having it repaired. The dents were therefore permitted to remain.
[24]
[22] The Yanner brothers then proceeded to throw a 44 gallon drum through the window of the office of the Burketown Hotel.
[25]
[23] Two Telstra workers who happened to be occupants of the hotel, upon hearing a smashing sound, ventured toward the side of the hotel. They were confronted by the Yanner brothers riding towards them on pushbikes calling out "What did you say?" Murrandoo Yanner jumped off his bike and came straight towards one of the workers (Mr Claudatos). He pushed or knocked Mr Claudatos over and tore his shirt from him. Bruce was a few metres behind his brother. The other Telstra worker ran towards the police car for assistance. As he ran he could hear Murrandoo Yanner making statements such as "Don't shape up to me". Apparently Mr Claudatos adopted a defensive pose when he got to his feet. When he returned with other persons he could see Murrandoo Yanner holding up Mr Claudatos saying "Stand up on your own two feet". According to the witness Yanner seemed to be pretending that Claudatos was drunk, but the witness stated that "It was obvious that Tony had been knocked senseless and could hardly stand up". The assault on Mr Claudatos involved him being knocked to the ground a number of times, picked up and knocked down again. While he was on the ground he was punched at least once to the head area. None of the Telstra workers said or did anything to either of the respondents and the attack was entirely unprovoked.
[26]
[24] While this incident was happening the policeman was again making statements such as "Murrandoo stop it. Settle down". The photographic exhibits show that little physical damage resulted to Mr Rice or Ms Portch. They also suggest relatively minor damage to the motor vehicle. Despite the protracted ostentatious display of aggression, the overall physical damage caused was not as great as might have been expected. Inexcusable as his conduct was, the above circumstances suggest the likelihood of a strong theatrical element in Murrandoo Yanner's behaviour on the night in question.
[27]
[25] Murrandoo Yanner was 24 years old at the time of the offences. He has a minor criminal history, having been convicted in 1993 of possession of a weapon in a public place in a manner likely to cause alarm and in 1995 of wilful and unlawful damage to property. In 1996 he was convicted of an offence concerned with assembly in such a manner as to cause fear to others and in August 1997 he was convicted of a further similar offence that had been committed prior to the present offences. The learned sentencing judge disregarded the 1996 and 1997 convictions on the ground that they related to political activity. On the material presented to the Court that would seem to have been a correct approach. However a consequence of the conviction in 1996 is that he was on a bond to be of good behaviour at the time of the present offences. So far as his behaviour in the period between the offences and trial are concerned, he was further convicted in December 1997 of three offences committed in October 1997 arising out of a disturbance on licensed premises and resulting in additional convictions of common assault and assaulting or obstructing a police officer in the performance of duty. His counsel explained that the events arose out of his being told to leave a hotel because he was in bare feet. As to this, anger is understandable, but his preparedness to resort to violence is not to be condoned.
[28]
[26] Bruce Yanner, although only 19 years old at the time of the offences, has a slightly more serious criminal history than his brother. It includes assaulting and obstructing police, unlawful assault, assault occasioning harm and some drug offences including supply. None of these were particularly serious examples of those offences, and the penalties did not exceed modest fines or forfeiture of a bond.
[29]
[27] About two years elapsed between commission of the offences and notification by the respondents of their preparedness to plead guilty. The delay centred around contested proceedings in relation to breaking and entering which are still unresolved. Blame cannot be attributed to them or to the Crown for the delay. The respondents are entitled to credit for their pleas of guilty which have avoided some inconvenience and expense. However no earlier indication was given of intention to plead guilty, and the Crown case would seem to have been very strong in that the events were observed by many persons. In short there have been late pleas of guilty.
[30]
[28] Counsel for the respondents below stated that his clients had been prohibited by their bail conditions from communicating with the complainants and that they now (through him) apologised to the complainants. The Crown prosecutor also conceded below that the respondents would suffer a degree of shame through being convicted of an assault on a woman and on a member of their own community (Mr Rice being Aboriginal). Counsel for the respondents went on to submit that there was some provocation arising from the release of the complainants' dog after accusing Bruce Yanner of being involved in breaking into the hotel. "Provocation" is, we think, too strong a term given the suspicious circumstances that preceded Mr Rice's confrontation with Bruce Yanner. No assumption can or should be made of guilt in that respect, but Bruce Yanner must at least have understood Mr Rice's right to be suspicious. Murrandoo Yanner's subsequent involvement and rage is inexplicable. Their subsequent actions were described by counsel for the Crown on this appeal as a shameful display of thuggery. The most that can be said is that there had been some preceding events which served to explain some degree of initial hostility in relation to Mr Rice and Ms Portch.
[31]
[29] The personal background of the respondents has been a difficult one out of which both have achieved some success in life. The respondents were two of a family of nine children. Murrandoo Yanner grew up in Burketown, was educated to year 12 and commenced university studies at the University of Southern Queensland intending to major in journalism. He left university prematurely when offered employment with the ABC as a cadet journalist in Townsville where he worked for one and a half years. He resigned that employment when his father, who had been a political activist in the Carpentaria area, died. He returned home and in effect took over his father's position with the Carpentaria Land Council and was appointed its chief executive officer in March 1992 at the age of 19. He is married and he and his wife are rearing four children. His income from working with the Land Council was said to be about $34,000 a year. It was said on his behalf that during his work for the Carpentaria Land Council considerable land gains have been made and there is no doubt that he has immersed himself in such issues.
[32]
[30] His personal life came under great stress after 1995 when the Century Zinc negotiations commenced. This continued for several years, during which he was subjected to a deal of pressure and public hostility. A vile exhibit was tendered as typical of racially motivated threats and insults that had been sent to him, including death threats. It was said that he was subject to pressure of this kind at the time of his commission of these offences. Although it does not excuse his gross aggression on the night in question it serves as a background explanation of this isolated and irrational explosion of physical violence.
[33]
[31] Bruce Yanner is also married with three children and is actively involved in his community, being the chairperson of Mungbayi Housing and working with the Carpentaria Land Council. His income from the Council is approximately $30,000 a year.
[34]
[32] A major difficulty confronting the Attorney-General's appeals arises from unwarranted concessions made by the Crown prosecutor below. Initially he submitted that the offences called for a term of imprisonment, but soon after submitted that "a better course" would be to suspend any term of imprisonment, declare a lengthy operational period and to require an appropriate compensation to be paid to the victims. In response to questioning from the learned sentencing judge on the subject of community based orders, he submitted that Murrandoo Yanner was "too old for probation" but that "community service certainly would be within range", immediately adding his reservation that the advantage of a suspended term of imprisonment was a guarantee for the community that if he should again engage in illegal activity there would be immediate consequences for him. The learned sentencing judge, correctly in our view, described the learned prosecutor's "essential submission" as one seeking a suspended term of imprisonment.
[35]
[33] The question therefore arises whether it is appropriate to give effect to submissions now made on behalf of the Attorney-General which are inconsistent with those concessions. It is of course the duty of the trial court, if it considers the submissions of a Crown prosecutor to be unrealistic, to impose the sentence which it thinks appropriate. "Even an undue concession by a Crown Prosecutor during the sentencing process is not necessarily fatal to an appeal by the Attorney-General, although it is a factor militating against the success of such appeals"[1].
[36]
[34] In considering this question, it has been said that "[t]he sentencing process cannot be expected to operate satisfactorily, in terms of either justice or efficiency, if arguments in support of adopting a particular sentencing option are not advanced at the hearing, but deferred until appeal"[2]. Those comments are however inappropriate in the present case as the Crown prosecutor advanced arguments in support of a custodial term as well as conceding the possibility of a non-custodial option. It must be acknowledged however that the essential submission below was that the most appropriate sentence was a substantial but fully suspended term of imprisonment.
[37]
[35] The protracted violence involved the venting of rage by Murrandoo Yanner on four persons including innocent bystanders. It truly was an outrageous exhibition. The learned sentencing judge remarked that "to attack someone who was coming to render them assistance is really appalling". Neither offender was affected by alcohol or drugs.
[38]
[36] The injuries that were inflicted were however not gross. As earlier indicated, the physical injuries to Ms Portch and Mr Rice were not particularly serious. Mr Wallaston however received three lacerations to his forehead which bled profusely and required stitching. He has been left with scars which he described two years later as "permanently on display". The assault undermined his confidence in working as an isolated sole practitioner with Aboriginal groups, which work he formerly enjoyed but has now abandoned. Although not badly injured, the effects of the incident on Mr Rice and Ms Portch were significant. Ms Portch suffered depression and felt unable to remain in the town. She and the children moved away leaving Mr Rice behind. Eight months elapsed before Mr Rice found employment which allowed him to reunite with his family in the same town.
[39]
[37] It was submitted that the imposition of community based orders grossly under-rated the serious nature of the assaults. Mrs Clare, for the Attorney-General, submitted that Murrandoo Yanner is a prominent citizen who has been given a grossly inadequate sentence for serious violence. She submitted that the sentence needs to be corrected to ensure consistency in the administration of the law and to preserve public confidence in equality of its application as well as in maintaining an appropriate level of deterrence.
[40]
[38] The Court was referred to a number of decisions which have come before this Court between 1994 and 1999 with which some comparison is possible. Mrs Clare submitted that they demonstrate that a significant prison term is necessary for conduct such as that of Murrandoo Yanner. In particular reference was made to R v Burnham & McLean[3]; R v Kazakoff, ex parte Attorney-General[4]; R v Packer, ex parte Attorney-General[5]; R v Harris[6]; R v Robinson[7]; R v Hill[8]; R v Walsh, Sayer & Thompson, ex parte Attorney-General[9]; and R v Smallwood, ex parte Attorney-General[10].
[41]
[39] The cases of Burnham & McLean and of Kazakoff resulted in prison sentences in the vicinity of three or four years, but they concerned assaults on police officers and resulted in injuries of considerably greater severity that those in the present cases. They are simply not comparable. R v Packer however comes closer. This Court, upon an Attorney-General's appeal, imposed a sentence of 18 months imprisonment suspended after four months, upon a 27 year old offender who assaulted three teenagers at a school party. The injuries were not dissimilar to the present level, consisting of a laceration that required three sutures, a loosened and replaced tooth and lacerations to the gums. The offender however had a lengthy but minor criminal history including prior convictions for assault. Smallwood is another case where this Court set aside a non-custodial order and replaced it with a sentence of nine months imprisonment where the circumstances could not overall be described as worse than those for which Murrandoo Yanner was responsible.
[42]
[40] On the other hand R v Rowe & Talbott[11] suggests that an intensive correction order is not outside the range with respect to a quite serious unprovoked assault on a 16 year old schoolboy to whom considerably greater injury was caused than to any complainant in the present case. In our view Rowe & Talbott stands outside the general sentencing pattern that may be detected in such cases. The Court was no doubt strongly influenced by the youth of the offenders who were 17 at the time. In Gritt[12] a two year sentence was substituted by this Court in an assault occasioning bodily harm in company case. The victim was attacked after refusing a request for a cigarette. The offender was 23 years old and had a prior criminal history but none which directly involved violence. The injuries caused in that case were however more serious than those in the present matters.
[43]
[41] Harris involved an assault occasioning bodily harm arising out of a fight at a hotel. In that case the victim, upon being punched in the face, fell and broke his arm. Prior to trial the offender had been visited with serious personal retribution, which was regarded as a mitigating factor on sentence. The offender was 25 years old with a varied criminal history including an aggravated assault on a female. This Court substituted a sentence of nine months with a recommendation for parole after three months. Another case (Robinson) may be mentioned in passing as one in which this Court substituted a sentence of nine months in respect of an assault involving a fight in a nightclub. The offender had some criminal history but it was not regarded as significant.
[44]
[42] Finally, some reliance was placed by counsel for the respondents upon R v Walsh, Sayer & Thompson, ex parte Attorney-General[13]. In that case three young men, one of whom was a solicitor and the others from a solid socio-economic situation, became involved in a vicious attack upon a complainant inside and outside a hotel causing him injuries considerably more significant than those in the present case. The incident however was started by the complainant and it was marked by gross over-reaction by the offenders. At first instance fines were imposed up to $4,000. Upon the Attorney-General's appeal the offenders were sentenced to six months imprisonment to be suspended for an operational period of 12 months. This was added to the original fines which had been paid. The Court made the following statement:
[45]
"Ordinarily a cowardly vicious attack such as occurred outside this hotel, with three men aggressively attacking another, punching, kicking and dragging him about, while at a stage he was likely unconscious, conceding that they inflicted bodily injury, would warrant a term of imprisonment, even where the offenders were first offenders, and even if wholly suspended. That is because violence associated with hotels, especially by groups of men towards lone victims, must be strongly deterred."[14]
[46]
[43] The present case is of course rather different and is in some respects worse than and in others not as serious as the conduct of Walsh, Sayer and Thompson. That case however supports the conclusion that the very least that the learned sentencing judge should have done in the present matter was to have imposed a sentence of imprisonment even if wholly suspended. Such a penalty gives the strongest possible incentive to an offender to avoid breaching of the law for a substantial period.
[47]
[44] This short review of the cases suggests that in respect of violence as protracted and irrational as that of Murrandoo Yanner in the present case, the usual expectation would be of an actual custodial term even if quite short, although it is possible that a fully suspended term could be imposed particularly in the case of young offenders where the level of harm was not great[15]. It is also to be noted that community tolerance of violence has been sorely tested in recent years and that a more severe sentencing regime (involving amendments to s 9 of the Penalties & Sentences Act 1992) has been in force since mid 1997.
[48]
[45] On the above analysis the sentence that was appropriate for Murrandoo Yanner lay within a fairly wide range, but the median in our view would have been a sentence of 18 months imprisonment with a requirement that a short term be served, of three or even six months. There are however some special factors which make it inappropriate that such a sentence now be imposed.
[49]
[46] Over two and a half years have elapsed since these impulsive violent acts occurred during a single course of conduct. The non-custodial sentences that were imposed in July 1999 were undoubtedly contributed to by concessions made by the learned Crown prosecutor who urged nothing more than a fully suspended sentence and conceded that a non-custodial option was available.
[50]
"Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General"[16].
[51]
Murrandoo Yanner has already paid the compensation of $2,500 that was ordered and he has completed 170 of the 240 hours of a substantial community service that he was ordered to perform, which is no minor burden. Attorney-General's appeals inevitably expose offenders to the rigours of being sentenced a second time, and may disrupt a rehabilitation process.
[52]
[47] Having said that however it is our view that the non-custodial sentences imposed on Murrandoo Yanner were so inadequate that this Court should interfere. There is merit in Mrs Clare's submission that a prominent citizen has been given an inadequate sentence for relatively serious offences. There are legal difficulties however in reformulating an appropriate order. If a sentence of imprisonment is to be ordered, the authorities of R v Hughes[17] and R v M, ex parte Attorney-General[18] hold that a probation order cannot be imposed along with a term of imprisonment exceeding six months, and that such a sentence may only be made under s 92(1)(b) of the Penalties & Sentences Act. That section permits a maximum of 6 months imprisonment to be imposed in conjunction with a probation order. Further, the reasoning in R v M, ex parte Attorney-General at least implies that a sentence of imprisonment (which includes suspended imprisonment) cannot be imposed concurrently with an order for performance of community service in view of the potential inconsistency in their concurrent performance. Whilst this conclusion is perhaps debatable, it is not necessary to determine it in the present case. The fact that Murrandoo Yanner has performed 170 hours community service is a factor that should be taken into account in his favour resulting in a more temperate custodial sentence being framed than would otherwise be the case. The orders for compensation were appropriately made and should remain part of the sentence. Given the history of the matter, community service for 170 hours, payment of $2,500 compensation, and liability to 18 months actual imprisonment unless he remains law-abiding for four years in our view amount in total to an appropriate and sufficiently substantial response at this unfortunately belated stage.
[53]
[48] In all the circumstances, in Murrandoo Yanner's case we would set aside the probation order and the order for community service and replace them with an order of imprisonment for 18 months, wholly suspended for a period of four years. The orders for compensation should remain.
[54]
[49] In Bruce Yanner's case the learned sentencing judge considered that the conduct for which he fell to be sentenced was less serious that that of his brother. He was not charged with assaulting Ms Portch and he was not involved in the gratuitous attacks on the other two men. His Honour thought that imprisonment was not an appropriate response for the attack on Mr Rice, because he considered that it was a heat of the moment reaction to the events that had occurred shortly before. This was the only assault offence of which Bruce Yanner was convicted. His later participation in the damage to Mr Rice's car and to the hotel was reprehensible but did not in combination make custody a necessary response from a sentencing court.
[55]
[50] Counsel for Murrandoo Yanner has conceded that having regard to the difference in the offences committed his client could not entertain a justifiable feeling of grievance from disparity if he were visited with a custodial sentence and his brother with a non-custodial sentence. The simple fact is that Bruce Yanner joined in an assault on the man with whom he had recently engaged in hostilities while Murrandoo Yanner, who had not been involved in those hostilities, participated in that assault and then went on with a rampage against other innocent persons. In these circumstances the appropriate response to the Attorney-General's appeal against Bruce Yanner is to hold that the orders in Bruce Yanner's case are not manifestly inadequate and to dismiss the appeal.
[56]
[51] In appeal CA No 296 of 1999 the appeal is dismissed.
[57]
[52] In appeal CA No 297 of 1999 the appeal is allowed. The sentences below are varied by deleting the orders for three years probation and 240 hours community service and ordering instead that Murrandoo Yanner be sentenced to imprisonment for 18 months wholly suspended for a period of four years.
[15] See R v Bennett & Bennett, CA No 443 and 449 of 1998, 26 February 1999.
[65]
[16] Statement of King CJ in R v Wilton(1981) 28 SASR 362 at 368, (1981) 4 A Crim R 5 at 10, accepted by Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen[1994] HCA 49; (1994) 181 CLR 295 at 302. Both Everett and Wilton were cases where an Attorney-General sought leave to appeal after a fully suspended sentence had been imposed without contrary submission by counsel for the Crown. As noted in Everett (p 303), Wilton was the actual disposal of an appeal after leave had been granted.