M v The Queen
[2000] TASSC 18
•10 March 2000
[2000] TASSC 18
CITATION: M v R [2000] TASSC 18
PARTIES: M
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CA 95/1999
DELIVERED ON: 10 March 2000
DELIVERED AT: Hobart
HEARING DATE: 10 March 2000
JUDGMENT OF: Cox CJ, Underwood J and Evans J
CATCHWORDS:
Criminal Law - Appeal and new trial and enquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Application to reduce sentence - When granted - Particular offences - Offences against the person - Generally - Assault - Whether 12 months' imprisonment for 17 year old is manifestly excessive.
Aust Dig Criminal Law [1010]
REPRESENTATION:
Counsel:
Appellant: C J Gibson
Respondent: C J Rheinberger
Solicitors:
Appellant: Trezise & Partners
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 18
Number of paragraphs: 7
Serial No 18/2000
File No CA 95/1999
M v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
(DELIVERED ORALLY) COX CJ
UNDERWOOD J
EVANS J
10 March 2000
Order of the Court:
Appeal dismissed.
Serial No 18/2000
File No CA 95/1999
M v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
(DELIVERED ORALLY) COX CJ
10 March 2000
A sentence of 12 months' imprisonment for a single count of assault consisting of one hard punch which resulted in fractures of the jaw of the victim is a relatively heavy sentence. When it is imposed upon a youth of 17 years, it can be termed an unusually severe penalty. Nevertheless, though towards the top end of the range of previously imposed sentences for similar attacks and though it is uncommon for a youthful offender to be the recipient of such a sentence, the Crown contends that the circumstances of this particular case fully justified its imposition.
The circumstances in which the blow was struck are unfortunately not unusual. They are in fact too common. A large group of youths picked out two other youths and the girlfriend of one of them as the target of their abuse. The smaller group were innocently walking through the Brisbane Street Mall in Launceston and prudently ignored the comments. Not satisfied, the larger group of young men repeated their abusive comments and followed their target into St John Street. Stung by the abuse, the complainant turned towards the group and unceremoniously told them to leave. He was then pushed by one of the group, forcing him to step back onto the road. He continued to retreat with his companions into the Quadrant Mall where he was again pushed and struck in the face by one of the larger group. In this Mall the appellant joined the larger group and involved himself in their harassment of the complainant and his companions, asking the complainant did he want a real punch in the head. The complainant continued on his way, with some pushing and shoving between himself and the appellant. Then the complainant was struck a heavy blow to the face by the appellant, fracturing his jaw and spinning him round 360 degrees. It was outrageous behaviour. The complainant was a totally innocent pedestrian going about his own business and was a complete stranger to the appellant who joined the group already outnumbering the complainant and his two companions.
The learned sentencing judge's comment to the effect that the public are entitled to walk in the streets and other public places free from molestation and thuggery was entirely appropriate. A sentence sending a clear message to groups of thugs minded to behave in this manner was justified on the grounds of general deterrence. But in the circumstances of this case, there was an additional reason for severity in the form of a deterrent directed to this offender because, a mere 12 days earlier, he had been convicted and sentenced for an attack which bore striking similarity to the present one. A group of youths, of which he was one, set upon two other young men walking innocently through a city park. The appellant was found to have participated in the assault by punching and kicking both men. The learned sentencing judge on that occasion did not impose an immediate term of imprisonment but imposed a suspended sentence of three months' imprisonment. Admittedly that assault had occurred some two years earlier when the appellant was 15; but to have offended again in similar circumstances so promptly after being dealt with by the Court demonstrated a total indifference to the constraints of the law and a contempt of its processes.
In the circumstances, there was no basis for the grant of any leniency. Veen v R (No 2) (1987 - 1988) 164 CLR 465 reminds us that punishment cannot be disproportionate to the gravity of the offence in question and that a persistent disregard for the law by an offender or the reasonable apprehension that if not deterred, the offender will re-offend, cannot justify a sentence beyond that which the actual offence deserves. But in those circumstances, retribution, deterrence and protection of society may all indicate that a more severe penalty than might otherwise be imposed is warranted.
In my view, the outrageous behaviour of the appellant fully justified a sentence of 12 months' imprisonment, notwithstanding that at the same time the appellant was ordered to serve the previously imposed suspended sentence of three months in addition. The attack was unprovoked and although no weapon other than the appellant's fist was used, the blow inflicted was very forceful and caused injuries requiring surgical intervention. In my opinion the appeal should be dismissed.
File No CA 95/1999
M v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
(DELIVERED ORALLY) UNDERWOOD J
10 March 2000
I agree with the reasons of the learned Chief Justice and the order that he proposes be made.
File No CA 95/1999
M v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
(DELIVERED ORALLY) EVANS J
10 March 2000
So do I.
0
0
0