Brown v Maywee

[1996] QCA 422

[1996] QCA 422

COURT OF APPEAL

PINCUS JA DOWSETT J FRYBERG J

CA No 297 of 1996

J BROWN	Respondent
and
SHANNON EDWARD MAYWEE	Appellant

BRISBANE
..DATE 10/09/96
PINCUS JA: Mr Justice Dowsett will deliver the first
judgment.

DOWSETT J: The applicant is 17 years of age, having been born on 3 January 1979. On 5 July 1996 he was convicted of one

count of assault occasioning bodily harm and at the same time,
of one offence of contravention of a Domestic Violence order.

We are presently concerned with an appeal in respect of the

first count.

The offence arose out of an incident which occurred on
4 July 1996 in which he assaulted his de facto wife. The
evidence indicates that he had been drinking and was probably
substantially affected by liquor at the relevant time. We are

told that when he got home he woke up the complainant and

started arguing with her. He then started to smash property
and assaulted her by punching her in the face and possibly
hitting her on the legs with an iron bar, although the
allegation of the use of an iron bar was not part of the
offence as charged. She suffered no injuries to the legs and

perhaps that allegation should be treated with considerable

skepticism.

As a result of the attack, the complainant suffered severe
swelling to the entire left-hand side of her face, a bruised
and bloodied mouth, she lost a tooth and there was at the time

of sentence, a suspected fracture to the left cheek bone. It

can be seen that the assault was a serious one and as is
implied in what I have already said, it occurred at a time at
which he was subject to a Domestic Violence order restraining

him from offering violence to his de facto wife.

He was, of course, young and had no previous convictions. He

pleaded guilty immediately after the offence and is obviously a person who needs guidance and help in dealing with both his drinking problem and his inclination towards violence when

2 100996 D.1 T 8/KHW M/T COA 216/96 affected by liquor.

The principal factors, in my view, which should have
influenced the sentencing Court were, on the one hand, his age

and the absence of any previous convictions, and on the

other, the seriousness of the assault, the need to protect
women in matrimonial relationships and the fact of the
existence of the Domestic Violence order.

Having regard only to the circumstances of the offence and the antecedents of the applicant I would have been inclined to

think that the Magistrate's order was substantially the order

which I would have made. Firstly, it demonstrates the

seriousness of the offence and the breach of the
Domestic Violence order by imposing a significant period of
imprisonment. Secondly, it recognises the special needs of
the applicant by making provision for an extensive period of
supervision designed, no doubt, to facilitate his

rehabilitation.

However, in all of this there is no recognition of the early
plea. The Magistrate in his reasons referred to that matter
but in the circumstances I am unpersuaded that appropriate
weight has been given to that issue. The early plea not only
saved substantial resources, but, of course, it should also be

taken, in my view, as evidence of remorse.

In the circumstances, I would be inclined to grant the
application for leave to appeal, to set aside the sentence and to substitute therefor a sentence of imprisonment for a period of three months coupled with the order for three years
probation which has already been made.
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I stress that the only area in which I consider that the
sentencing discretion miscarried was in the area of giving
appropriate weight to the early plea.
PINCUS J: I have found this a difficult case but I have in
the end come to the same conclusion as Mr Justice Dowsett has

just mentioned.

For my part, I regard the youth of the offender as a
significant point in his favour and, were it not for the fact
that he was subject to an order made under the Domestic

Violence Family Protection Act at the time, it may be that no prison sentence would have been appropriate, despite the obvious necessity to protect his de facto wife and, indeed, women in general, from this sort of assault.

In the result, I agree with the order which Mr Justice Dowsett proposes. I should add that there is in the record some

possible uncertainty as to what the Magistrate has done; but
it appears to me clear enough, in the end, that what he
intended was to impose a sentence of six months imprisonment
in respect of the matter with which Mr Justice Dowsett has
dealt and a separate sentence in respect of the other offence
which was before him. The latter is not the subject of any

application today.

FRYBERG J: I agree that the discretion of the Stipendiary
Magistrate miscarried in so far as he has failed to give
appropriate attention to the early plea of guilty. It also
seems to me that the Stipendiary Magistrate ought to have
required the preparation of a presentence report. Given that
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there has been a miscarriage of his discretion it is
unnecessary for me to decide whether the mere failure to
order a presentence report by itself would amount to a
miscarriage of the sentencing process sufficient to enliven
the intervention of this Court.
The fact that the sentencing process has miscarried in this
way means that this Court must now take it upon itself to fix
what is an appropriate sentence. In my view, the Court is not

in a position to do that on the material presently available

to it. Neither the Prosecution nor the applicant's advisers
have made the slightest attempt to put before us any material

in addition to what was before the Stipendiary Magistrate.

That material reveals that the applicant is a youth of
17 years of age who at the time of the offence was said to be
living in a de facto matrimonial relationship, itself a highly
unusual situation in ordinary community terms. Perhaps that

unusual feature may be explained by cultural factors where it is not difficult to infer that the applicant is of Aboriginal or Islander descent. It appears that he lived at Yarrabah;

other circumstances may also lead to that conclusion.

In my view, the absence of a presentence report together with the absence of any information on factors such as the nature

of the community in which the applicant was dwelling, the
impact of the sentences which are proposed on him in relation

to that community, the efficacy of probation orders in

relation to that part of North Queensland, the availability of

alternatives and their effect on a person such as the

applicant and the various other matters which would derive
from his cultural background and to a lesser extent from his
age in relation to that background make it quite impossible
for this Court to proceed to sentence.
100996 D.1 T 8/KHW M/T COA 216/96

It seems to me that there is an obligation on those who bring matters before this Court to provide that sort of information, but there is an even greater obligation, in my view, to

provide the sentencing Magistrate with that sort of
information. It is true that he may be expected to have
knowledge of his community and that a lot more may be assumed to be within his knowledge than could be assumed to be within our knowledge. However, unless the view is to be taken that
we continue to send people of Aboriginal descent to gaol for
want of a better alternative it seems to me that the provision

of such information is vital.

I would take the view that sentencing should not proceed in
the absence of that information. Consequently, I would order

that the appeal be adjourned to a date to be fixed to allow

such information to be provided.

...

PINCUS JA: The order of the Court will be the appeal is allowed.

The sentence imposed in respect of the offence of assault occasioning bodily harm is varied by reducing the term of imprisonment ordered from six months to three months.

Otherwise the order made by the learned Magistrate in respect of that offence is confirmed.

A warrant will issue for his arrest to lie on the Registry
until 5.00 p.m. Monday.
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Those are the orders.

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