Hurst v Henry

[1994] QCA 383

IN THE COURT OF APPEAL [1994] QCA 383

SUPREME COURT OF QUEENSLAND

C.A. No. 343 of 1994.

Brisbane
[Hurst v. Henry]
BeforePincus J.A.
Davies J.A.

Cullinane J.

G.J. HURST

v.

GLORIA MAREA HENRY (Applicant)

Judgment delivered 03/10/1994
Joint reasons for judgment of Davies JA and Cullinane J. Pincus
JA delivering separate reasons concurring in the order made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE IMPOSED BY THE LEARNED STIPENDIARY MAGISTRATE SET ASIDE. IN LIEU THEREOF, ORDER THAT THE APPLICANT BE RELEASED UPON ENTERING INTO A RECOGNISANCE IN THE SUM OF $200 ON CONDITION THAT SHE APPEAR TO BE SENTENCED IF CALLED UPON WITHIN A PERIOD OF 2 YEARS AND THAT SHE IN THE MEANTIME KEEP THE PEACE AND BE OF GOOD BEHAVIOUR. ORDER THAT A CONVICTION BE RECORDED.

CATCHWORDS:CRIMINAL LAW - sentence - assault occasioning bodily harm - complainant a 78 year old woman - applicant a 19 year old woman - complainant suffered bruises, abrasions and loss of consciousness - conveyed to hospital - whether sentence of 6 months imprisonment and order for compensation appropriate under the Penalties and Sentences Act

Counsel: Mr T Carmody for the applicant
Mr R Martin for the respondent

Solicitors: Legal Aid Office for the applicant Director of Public Prosecutions for the respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 03/10/1994

I have read the joint reasons of Davies J.A. and Cullinane J. and respectfully agree with their Honours' conclusions.

On sentencing in the Magistrates Court after a plea of guilty, the defence version need not be accepted if inherently improbable; of course, it cannot be acted upon if inconsistent with the plea. Where there is a serious contest as to the circumstances of the offence which cannot be resolved in any other way, the Court may find it necessary to hear evidence.

As Davies J.A. and Cullinane J point out, the statement made by the learned magistrate that the facts were not in dispute here does not appear to be correct. In Clayton [1989] 2 Qd.R. 439, there was some discussion of the proper procedure to be followed where, on a plea of guilty, the circumstances of the offence are in dispute. The Court approved Canadian authority to the effect that "the strict rules which govern a trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities of the normal adversary proceeding prevail" (441). The Court pointed out that Rogers [1985] 2 Qd.R. 43 did not decide that the court must act on a version of the defence unless it is inherently improbable or inherently unreasonable, but rather decided that the sentencing tribunal is not bound to accept what the prisoner has said by way of explanation if the explanation is inherently improbable.

In Jobson [1989] 2 Qd.R. 464, decided on the same day as Clayton, it was held that where there are depositions they may be used in the sentencing process; that illustrates the proposition derived from Canadian authority. It is of interest to note the English practice, which appears now to favour applying the strict rules of evidence in sentencing: Gandy (1990) Crim.L.R. 346; the matter is discussed in (1985) Vol. 38 Current Legal Problems p. 187.

Another line of authority on the question of disputed statements starts with Murphy (1947) Q.W.N. 4, where, on a plea of guilty of bigamy, allegations of conduct substantially aggravating the seriousness of the offence were denied by the prisoner, and it was held that a sentence imposed on the basis that the disputed aggravating circumstances existed was wrong. That notion was somewhat extended by Stable J in West v. Sprinkhuizen, ex parte Sprinkhuizen [1961] Qd.R. 313 at 319, 320: "In the result, it appears clear that when a person convicted of an offence disputes a material statement made by the police on the matter of sentence, the court should exclude the content of that statement from consideration unless it becomes substantiated by sworn evidence".

Then in Jones v. Chalmers, ex parte Chalmers (1965) Qd.R. 508, the magistrate, in a driving case, acted upon a disputed statement as to the circumstances of the offence put before the court on behalf of the prosecution. West v. Sprinkhuizen was applied and the magistrate's decision upset.

These three cases must now be read in the light of the principle approved in Clayton, namely that the defence version does not have to be accepted if it appears to the court to be inherently improbable, keeping in mind that in the sentencing process the court is not necessarily bound to apply the rules of evidence, so long as fairness is preserved.

Here, there were two conflicting versions. The injuries found on the complainant made the defence suggestion that she received only one blow seem unlikely to be correct; but on the other hand, the story that the complainant attacked the applicant, scratching her on the chest, received some support from the police observations of the applicant's condition after the incident.

In the circumstances it appears to me that the case was a difficult one in which to impose a sentence properly, without more information and, probably, some evidence. Whether or not a more severe sentence than a bond would have been appropriate if the facts of the matter had been better determined is hard to say; in the circumstances now confronting us, it seems to me clear that the applicant should not be required to spend any further period in custody than that so far served.

With respect to the matter of compensation, I note that the respondent did not attempt to support the order made.

I agree with the orders proposed by Davies J.A. and

Cullinane J.

JUDGMENT - DAVIES JA and CULLINANE J
Judgment delivered 03/10/1994

The applicant seeks leave to appeal against a sentence of six months imprisonment and an order to pay compensation in the sum of $2,500 imposed in the Magistrates Court at Cairns on 17 August 1994 upon the applicant's plea of guilty to a charge of assault occasioning bodily harm.

The complainant is an elderly woman of 78 years who, on 12 August 1994, was a neighbour of the applicant. It appears that at about 5:30am on that day she went to the applicant's residence to complain about noise.
According to the material before us, the Magistrate had placed before him two quite different versions of what then occurred.

The prosecutor informed the learned Stipendiary Magistrate that when the complainant asked the applicant and other occupants to keep the noise down and stated that she had had to put up with the noise from their residence all night, she was attacked by the applicant who grabbed her by the front of her clothes and repeatedly punched her about the upper body. As a result, the complainant lost consciousness and was subsequently conveyed to the Cairns Base Hospital by ambulance where she was admitted suffering from bruising and abrasions to the upper body and arms. It was said that she had skin missing from a number of areas on her right arm and was at the time of the hearing under observation because of her distressed condition consequent upon the attack.

The applicant was located by the police but was not interviewed because of her intoxicated state.

According to an affidavit of the applicant's solicitor, he informed the Court that after the complainant entered the property where the applicant and others resided, she demanded in "an aggressive and unfriendly manner" that the noise cease. According to the account which he placed before the Court, the complainant then turned to walk away at which time the applicant placed her hand upon the shoulder of the complainant and said something like "turn around so I can talk to you". At this point the complainant appeared to be in fear that she was about to be assaulted and began screaming in an hysterical fashion and flailed her arms at the applicant causing a number of significant scratches on the chest of the applicant. The affidavit of the applicant's solicitor states that the prosecutor confirmed, presumably to the Court, that when the applicant was arrested she had visible scratches on her chest.

The account of what the applicant's solicitor placed before the Court goes on to relate that when the complainant began to scratch the applicant, the applicant struck the complainant with one blow of the fist to the face as a result of which the complainant stopped. She did not fall down at this time but shortly afterwards did. It was submitted on behalf of the applicant that the reason for her falling would appear to be "her nervous disposition".

It is not entirely clear which account the learned Stipendiary Magistrate accepted for the purposes of imposing sentence. He stated that: "The facts are not in dispute as to what occurred."

This would plainly not seem to be the case on the evidence which has been placed before us.

He went on to say:

"However, you want to look at the matter the old and apparently frail woman was set upon by this nineteen year old drunken woman. She ended up in hospital and is still there as a consequence, mainly it seems through shock and emotional anxiety and distress arising from the incident."

The reference to the complainant having been set upon would tend to suggest that he did not proceed upon the basis of the assault having occurred in the circumstances outlined by the applicant's solicitor, although it is not possible to be certain of this.

On a plea of guilty where, as here, there is a substantial difference between the circumstances concerning the commission of the offence as placed before the Court by the prosecution on the one hand and the defence on the other, and no attempt is made to resolve the matter by evidence, it is accepted that in the absence of special circumstances, that view of the facts most favourable to a defendant ought to be accepted.

The applicant is 19 years of age and a single unemployed woman. She is a Torres Strait Islander. She has not previously been convicted.

The learned Stipendiary Magistrate in passing sentence referred to the principles contained in the Penalties and Sentences Act 1992 as amended, and summarised some of these. He went on to say:

"A sentence of imprisonment is the last resort and wherever a sentence not involving the removal of an offender from the community can be honestly and properly imposed after a realistic consideration of the particular case such a sentence will always be imposed."

There are undoubtedly features of the offence which make it a serious one. The most important of these is the age of the complainant and the hospitalisation which the assault necessitated.

However, making due allowance for these, a consideration of the circumstances of the commission of the offence, taking the essential features to be those outlined by the applicant's solicitor together with the absence of any criminal history on the part of the applicant, would, in our view, lead to the conclusion that a custodial sentence was not, applying the principles of the Act, called for.
We were told that the applicant has spent approximately five weeks in custody. This fact is significant in terms of identifying the appropriate sentence to be imposed by this Court in substitution for the term of imprisonment which should be, in our view, set aside.

There was an order made that the applicant pay $2,500 by way of compensation within two years, in default of which she was to serve a term of six months imprisonment.

The applicant according to the material before the Court, is in receipt of Social Security benefits. According to the affidavit of her solicitor, the learned Stipendiary Magistrate was told that she had no capacity to satisfy any order for compensation.

It appears that a little under $2,200 of the $2,500 ordered by way of compensation represents hospital fees, the cost of which was met by an insurer.
In the circumstances, we do not think it appropriate that the order for compensation stand.

We would grant leave to appeal against sentence and allow the appeal. We would set aside the sentence imposed by the Stipendiary Magistrate and substitute therefore an order that the applicant be released upon entering into an recognisance in the sum of $200 conditioned that she appear to be sentenced if called upon within a period of two years and that she in the meantime keep the peace and be of good behaviour. We would order that a conviction be recorded.