R v Chadwick; Ex Parte

[2001] QCA 94

[2001] QCA 94

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA
MOYNIHAN J

CA No 302 of 2000

THE QUEEN

v.

BENJAMIN RICHARD CHADWICK  Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND                  Appellant

BRISBANE

..DATE 14/03/2001

JUDGMENT

MOYNIHAN J:  This is an Attorney-General's appeal against sentence.  The respondent pleaded to counts of assault occasioning bodily harm, inflicting grievous bodily harm and attempting to pervert the course of justice.

The circumstances giving rise to the offence are these.  The respondent is a young man born on 12 February 1974.  On 7 June 1998 he was drinking in a hotel in his home town Kingaroy.  There were other people there.  He followed one of those people to the hotel toilet shortly after midnight and without any provocation or any other occasion of apparent justification assaulted him, punching him a number of times to the head and face, causing him to suffer pain and a swollen eyeball and black eye.

Other persons at the hotel intervened and put an end to the assault.  In the course of that the respondent himself was struck a number of blows and, as might be expected, treated somewhat roughly by the interveners.  The people who had intervened and the victim then went back out into the bar.  The respondent returned and punched one of them on the jaw fracturing it and making it necessary for surgery to be carried out to repair the fracture and to insert a plate.

As I say, the intervention had been completed and the interveners had returned to the bar when the respondent pursued them, in effect, and inflicted the second assault. 

The offence of attempting to pervert the course of justice relates to an approach to the man Barton whose jaw was fractured and an offer of $10,000 to drop the charges.  Nobody treated that as a serious consideration.  Although, of course, the offence itself is serious the sentence sought is not of major concern in this appeal. 

One of the consequences of the events that I have just described was to activate a sentence which had been imposed on the respondent on 29 April 1996.  That was a sentence of six months imprisonment suspended immediately for a period of two and a half years. 

The sentencing Judge imposed a sentence in relation to the assault occasioning bodily harm of six months.  In respect of the offence of grievous bodily harm, 18 months with a recommendation of eligibility for consideration for parole after serving six, and as to the attempt to pervert the course of justice three months imprisonment.  The suspended sentence of six months was activated.  All the sentences were ordered to be served concurrently. 

It will be apparent from what has already been said that the respondent had a criminal history because of the suspended sentence.  In fact, he had convictions for of the order of 12 assaults; two of them involving the infliction of bodily harm; one with the circumstance of aggravation that he was in company.

In addition to those the respondent has a substantial criminal history involving offences of being drunk in a public place, insulting language, unlawful use of a motor vehicle, behaving in a disorderly manner, resisting police, unlawful and wilful damage to property.

Therein lies the immediate difficulty the respondent faces in respect of this appeal.  There was evidence, in terms of a pre-sentence report, suggesting that he may have some genetic or inherent disposition to act in a rash manner but the difficulty is, as I say, that he has a criminal history which indicates that he is a menace to members of the community in which he belongs.  He probably should not use  alcohol because one has the impression that his offences
are directly related to an excessive consumption of alcohol in circumstances where, at least at the time of the pre-sentence report, he was not in employment and had not been for some time and so has time on his hands.

The head sentence flowing from the events on 7 June is a period of 18 months.  Having regard to the criminal history and the other factors that is arguably at the bottom end of the range and of itself probably cannot be said to be outside the exercise of a sound sentencing discretion. 

It seems to me that the real difficulty arises with the provision that the six months of the suspended sentence being made concurrent.  In my view it ought to have been cumulative reflecting the separate and distinct nature of the offence to which it related. 

It will be apparent from what I have already said that that was a much earlier and distinct occasion falling into the pattern of behaviour that is reflected in the criminal history.

I bear in mind that, and it has been urged on his behalf that the respondent had gone for some considerable time of the suspended period without engaging in criminal activity which led to his being convicted of offences but that is of little consequence in the overall pattern of his activities so far as the necessity to make the six months sentence cumulative is concerned.

In saying that the 18 months was probably within the acceptable range I ought to say that the respondent pleaded guilty and was, himself, subjected to some violence which however he brought on himself.

I would therefore set aside the order below, order in terms of the assault occasioning grievous bodily harm, the assault and the attempt to pervert justice sentence as were imposed but order that the suspended sentence six months period be cumulative on the period to be served for those sentences.

I can see no reason for a recommendation for early eligibility for parole in the case of an offender with the history of this offender.  I am inclined to the view that that consideration for a timely plea is more appropriately reflected in the head sentence which as I have said is at the lower end of the range. 

I am not inclined to make a recommendation for early consideration.

McPHERSON JA:  I agree with what has been said by Justice Moynihan and with the order he proposes.

WILLIAMS JA:  I agree.

McPHERSON JA:  The appeal will be allowed on the terms that have been stated by Mr Justice Moynihan.

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