Hawes v Slater

[2010] QDC 379

[2010] QDC 379

DISTRICT COURT APPELLATE JURISDICTION JUDGE R JONES ANTHONY MARK HAWES And SGT C R SLATER WARWICK ..DATE 08/09/2010	Appellant
Respondent

ORDER
HIS HONOUR: This is an appeal against sentence by the

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appellant Anthony Hawes. The circumstances were that on 10
March 2010 the appellant pleaded guilty in the Warwick

Magistrates Court to one count of assault causing bodily harm.

The appellant was sentenced to three months imprisonment;	10
wholly suspended for a period of 12 months. As a consequence of that decision a conviction was automatically recorded.
The substance of the appeal is that the sentence was
manifestly excessive and that the correct range for the	20
conduct in question was a fine or a community service order. That was later further particularised by a submission that a fine in the order of $1,000 or 80 hours community service
would have been an appropriate sentence.
30
The criticism of the learned magistrate was that her Honour
had failed to fully consider all the sentencing options
available, failed to allow further submissions to be made
if her Honour was of a mind to impose a fully suspended
sentence, and otherwise failed to provide adequate reasons for	40
her decision not to consider a lesser penalty.
The factual background was that the appellant had been in a relationship with a female for approximately two years. At the time that relationship had come to an end and the female	50
had commenced a relationship with another male.

On 12 December 2009 the appellant attend his ex partner's house and an argument ensued. At one point the appellant 2 ORDER 60

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ripped the front screen door off its hinges which upset a
child present in the house at the time. The reference to the child was a matter taken up by her Honour when sentencing the appellant. He verbally abused his ex partner, but it would

appear that the level of abuse was not extensive. The	10
appellant demanded a ring he had given to his ex partner back. it out into the yard.
It is what followed thereafter that causes the major	20
difficulty in dealing with this appeal.
When the matter came before her Honour the submission made by
the Prosecutor was essentially that the assault was an
unprovoked one where the appellant attacked the complainant	30
while he was helping the appellant look for the ring. On the Crown's case the defendant jumped from a verandah, approached the complainant from behind and struck him several times with a closed fist hitting him behind the right ear and in the
forehead and the facial area. The assault would have	40
obviously caused considerable pain to the complainant, but it would appear that his injuries were only slight.
When the appellant was eventually confronted by the police the
defendant stated that whilst he was trying to retrieve the	50

ring the complainant had, in fact, pushed him up against the
fence and he was defending himself.
In the proceedings before her Honour, the appellant was 3 ORDER 60

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represented by a solicitor and during the course of his
submissions the solicitor said, "Your Honour, it's a situation
where he went there to do things. It got out of hand, there's
no doubt about that, your Honour. The injuries themselves are

perhaps not at the higher end of bodily harm." The quote then	10
continues, "And it was a situation where my client still
maintains that the story lies somewhere between what he has
said in the sense that he says that this person, after his ex
partner had thrown the ring, after requesting it back, had
thrown the ring into the grass, that this complainant may have	20
tried to help him find the ring, but then at one stage he was
being told to leave and he came to be pushed up against a
fence and then he fought his way out of that, and that is
where the stories differ somewhat, but he does not want to
contest the facts, but he has said that there was basically a	30
bit of a - there was two sides to it rather than one side that is being represented by the complainant."
But for the reference to the fact that, "The appellant does
not want to contest the facts" it would have been relatively	40
straightforward to draw the conclusion that the appellant's
solicitor was quite clearly putting forward a version of
events inconsistent with that contended for by the
prosecution. However, I do not think at the end of the day
that the reference to "He doesn't want to contest the facts."	50
is sufficient to warrant a conclusion that the appellant
intended to accept and proceed on the prosecution's version of
events.

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I have reached that conclusion for two reasons, those being
that the appellant's solicitor later went on to say, "He
accepts that he behaved badly, he is wholly embarrassed by it.
He was - he said - well, he says that his version to the

police was as it happened, but at the end of the day he just	10
wants to - because of his university commitments and so forth
he was not in the frame of mind for protracted proceedings and he was wanting to have the matter dealt with on the basis that he has used excessive force in the circumstances and in that
circumstance he is guilty of causing some bodily harm to the	20
complainant. Your Honour, I take those - ask your Honour to take those matters into account, his youth, his timely plea, if not - well, timely plea of guilty, et cetera."
Those later submissions lead me to conclude that at the end of	30
the day the appellant's solicitor was intending to make a
submission that the appellant was, in fact, sticking to his
version of the events. There I refer to what his solicitor
said when he said, "He says that his version to the police was
as it happened." And then later that, "He wants the matter	40
dealt with on the basis that he has used excessive force in the circumstances and in that circumstance is guilty of causing some bodily harm to the complainant."
That theme was taken up by her Honour in her sentencing	50
remarks where her Honour said, "On one view of it this is the tail end of a long and sorry saga and only exacerbated by the presence of the child when this bad behaviour occurred. It

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may well be that there was bad behaviour by all three or four

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of the adults involved, but, quite clearly, I accept that

there was excessive force."

It is by no means certain that there her Honour was intending

to proceed on the basis that the appellant's version was	10
accepted, but it appears to me to be sufficiently clear that
that was the likely basis of her sentence, otherwise it is
difficult to understand why her Honour would have referred to the fact that, "There may well have been bad behaviour by all three or four of the adults involved" and then gone on to	20
apparently embrace what was submitted by the appellant's solicitor, that the appellant wanted to proceed on the basis that excessive force was used.
Unfortunately, the sentencing remarks of her Honour are not	30
particularly detailed, but bringing these matters together
with the fact that her Honour made no reference to, either
expressly or by necessary implication rejecting the version
contended for by the appellant, leads me to conclude that the
interpretation that I have is the more likely situation.	40
However, as I have said, the situation is not entirely clear.
Just in conclusion on this matter it also seems to me that had
her Honour intended to proceed on the basis of it being an
unprovoked assault from behind, that would be a matter you	50

would ordinarily expect to see incorporated into sentencing
remarks. The fact that no reference was made to those sorts of
circumstances also supports the conclusion that I have
reached. 6 ORDER 60

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The powers that I have in this appeal under the Justices Act
1886 relevantly are that I may confirm, set aside or vary the
appeal or make any other order that I consider just. And in

subsection 2 that I may have the power to set aside the	10
order and send the proceedings back to the Magistrates Court with directions.
The necessary directions in this case, were I not to finally
dispose of the appeal now, would be to the effect that the	20
sentencing procedure recommence.
On balance though I do not consider that that step is necessary.
30
For the reasons given I will proceed on the basis that it is sufficiently clear that the magistrate was not proceeding to sentence the appellant on the basis of what would have
amounted to an unprovoked attack on the complainant from
behind.	40
It is with some reservation, I must say, that I have reached this conclusion, but, on balance, I consider it to be appropriate.
50

It was acknowledged by Ms Klemm, who appears for the respondent, that if I were to proceed on the basis that it was not an unprovoked assault, but more a case of there being excessive force used, then the sentence was manifestly 7 ORDER 60

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excessive and that a fine either in the order of $1,000 or 80
hours community service would be appropriate and that a

conviction ought not be recorded.

I have decided that the appropriate sentence is that the	10
appellant be fined $1,000 and that there be no conviction
recorded. By reference to the circumstances of the offence and
also taking into account his still relatively young age of 22
years, and the fact that he is presently studying intending to
gain employment in the mining industry, it seems to me that it	20
is unnecessary to have a conviction recorded.
For the sake of completeness I should also note that the appellant has a previous conviction, it was for unlawful carnal knowledge of a girl aged 15. The appellant was 19	30
years of age at the time. There was a child resulting from
that act of intercourse. It would appear that, in fact,
the woman who threw the ring into the yard, which resulted in
the assault was the complainant in the unlawful
carnal knowledge offence, and she and the appellant have had	40
what was described by Mr Davies as an on and off relationship over the years, including after the events to which I have referred.
For the reasons given the appeal is allowed and the sentence	50
is as I have already referred to.

MR DAVIES: Just in relation to the fine, can I ask that your
Honour make an order that it be referred to SPER, being the 8 ORDER 60

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State Penalties Enforcement Registry. What will happen, they will contact him to make arrangements for him to pay in a number of different ways.

HIS HONOUR: What order do I have to make?	10
MR DAVIES: Simply that your Honour has made the order, that it be referred to SPER.
HIS HONOUR: Ms Klemm, is-----	20
MS KLEMM: I have no submissions on that, your Honour.
HIS HONOUR: All right. Well, I further order that the fine of
$1,000 be referred to SPER.	30
MR DAVIES: Thank you, your Honour.
HIS HONOUR: Time to pay?
40
MR DAVIES: I think that has that effect, your Honour, yes.
HIS HONOUR: That takes it into account? All right.
MR DAVIES: Yes.	50
HIS HONOUR: All right, any other matter?

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