R v. Crompton

[2009] QCA 19

SUPREME COURT OF QUEENSLAND

CITATION:

R v Crompton [2009] QCA 19

PARTIES:

R
v
CROMPTON, Damien Anthony
(applicant)

FILE NO/S:

CA No 259 of 2008
SC No 924 of 2008
SC No 925 of 2008
SC No 929 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2009

JUDGES:

Keane, Holmes and Fraser JJA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to and was convicted on four counts of assault occasioning bodily harm, one count of wounding and two counts of supplying a dangerous drug to a prisoner – where applicant sentenced to nine months imprisonment for each assault count, to be served concurrently; three years imprisonment for the wounding count; and twelve months imprisonment for each supply count, to be served concurrently – where sentences cumulative so that overall sentence equals four years and nine months – where applicant has a criminal history involving violent offending and offending whilst on bail – whether sentence is manifestly excessive – whether the sentencing judge should have structured the sentence to conform with an offer made by the prosecution to defence counsel – whether the sentencing judge should have set a parole release date or, alternatively, an earlier parole eligibility date

Penalties and Sentences Act 1992 (Qld), s 155, s 156, 159A, s 160A, s 160C(5)

R v AAF[2008] QCA 235, cited
R v Carter[2008] QCA 226, cited
R v Clements (1993) 68 A Crim R 167, cited
R v Cole [1998] QCA 205, cited
R v Devon[2004] QCA 216, cited
R v Friday[2005] QCA 440, cited
R v McDonald[2003] QCA 439, cited
R v Reardon[2006] QCA 225, cited
R v Walsh[2008] QCA 391, cited

COUNSEL:

The applicant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

1. KEANE JA:I agree with the reasons for judgment prepared by Fraser JA and with the order proposed by his Honour.

1. HOLMES JA: I agree with the reasons of Fraser JA and with the order proposed.

1. FRASER JA: On 15 September 2008 the applicant was convicted on his own plea of guilty in the District Court to four counts of assault occasioning bodily harm and one count of wounding.  On 16 September 2008 the applicant was convicted on his plea of guilty in the trial division of this Court to two counts in an ex-officio indictment of supplying a dangerous drug to a prisoner in a correctional facility.  The judge in the trial division sentenced the applicant on those two counts of gaol offences to twelve months imprisonment, each imprisonment to be served concurrently; on the four assault charges, to imprisonment for nine months on each count, such imprisonment to be served concurrently but cumulatively upon the imprisonment ordered upon the ex-officio indictment; and on the wounding count, to imprisonment for three years, such imprisonment to be cumulative upon the imprisonment ordered in relation to the assault charges. 

1. The overall term of imprisonment was thus four years and nine months.  The judge declared that 440 days was time already served under the imprisonment, that being the period the applicant had been in custody on those charges from 4 July 2007 until sentenced.  The sentencing judge fixed 3 June 2009 as the applicant’s parole eligibility date, so that (taking the pre-sentence custody into account) the applicant was required to serve a minimum of about 40 per cent of the overall term in custody.

1. The application for leave to appeal against sentence contends that the head sentence is manifestly excessive.

Circumstances of the offences

1. The applicant arranged for a woman to smuggle methylamphetamines and marijuana to a prisoner in the Sir David Longland Correctional Centre at Wacol on 6 December 2002.  When the applicant was interviewed by police on 12 December he made full admissions of the offence.  There were 1.8 grams of cannabis and 1.875 grams of powder containing some amphetamine and methylamphetamine, in each case for the prisoner’s personal use.  The sentencing judge rejected the applicant’s assertion that he arranged for the woman to supply the prisoner with the drugs because of a fear of reprisals by the prisoner.  The applicant was granted bail on the resulting charges and in breach of bail failed to appear in the Magistrates Court.  A warrant for his arrest was unable to be executed for over four years. 

1. The applicant committed the four assaults between 13 January 2003 and 2 June 2006.  In the first, without any warning the applicant hit Mr Marshall, a bar manager in the face, causing his nose to bleed.  The applicant evaded pursuit.  In the second, a little over a month later on 9 February 2003, the applicant attacked Mr Herodes, a man with whom the applicant lived in a communal dwelling.  The applicant hit Mr Herodes from behind, grabbed him, held him tightly around the neck, threatened to kill him, and after a struggle bit him on his face causing extreme pain and leaving a 3 cm by 3 cm bruise on the man’s right cheek, two puncture marks and a lineal bruise.  On the same day the applicant was charged with that assault and with the earlier assault in January.  The applicant was given bail but failed to appear in court on 27 May 2003.  Another warrant was issued for his arrest.

1. On 24 January 2004 at a hotel the applicant, again without warning, assaulted Mr Hansen, a man with whom the applicant had been playing pool.  The applicant put his right hand around the back of Mr Hansen’s neck, pulled him forward, bending him over so that his head was near his groin, and punched him five or six times to the right side of the head.  Mr Hansen suffered bruising, a displaced and bloody nose and a cut below his right eye which required suturing.  He also needed pain relief medication and antibiotics.  The applicant was not immediately apprehended for this offence.

1. Nearly two and a half years later, on 2 June 2006, the applicant assaulted Mr Sunderland, a young man celebrating his 18th birthday in a nightclub.  The applicant, who was inebriated, punched this young man very hard on the nose, again without warning.  The complainant blacked out and when he woke up he vomited.  Again the applicant was not immediately apprehended for this offence.

1. It is clear that alcohol played a part in each of the assault offences and that in each there was no sensible explanation for the applicant’s violent attacks. 

1. The remaining charge was that of unlawful wounding on 5 August 2006.  At that time the applicant was in a rented house, in a relationship with one Ms Murray.  The complainant, Mr Hames, also lived there.  In the course of a discussion the complainant touched Ms Murray gently on the shoulder, in the course of making a point.  The applicant then attacked the complainant, wounding him in his back and head with a knife, and punching him.  The head wound was superficial but the back wounds were relatively deep.  The applicant went outside and told Ms Murray to call an ambulance, but he then left the scene and could not be located.  The applicant was charged with this offence after he was arrested in June 2007. 

1. By chance the applicant was located and the warrants outstanding for his arrest were executed on 29 June 2007.  On 3 July 2007 he was sentenced in the Magistrates Court on counts relating to his failure to appear.  On one of the counts he was sentenced to imprisonment for five days and it was declared that the five days he had spent in pre-sentence custody from 29 June to 3 July 2007, was time already served under that sentence.  On the other counts he was sentenced to a total of two months imprisonment, suspended for 18 months. 

The applicant’s personal circumstances

1. The applicant was born on 18 November 1979, so that he was 23 years of age at the time of the first offences (supplying dangerous drugs with a circumstance of aggravation) and he was 28 years of age when sentenced. 

1. The first entry on the applicant’s criminal record concerns assaults occasioning bodily harm and wilful damage in January 1999, for which he was fined.  Subsequently in 1999 he was convicted of a series of offences, breaking and entering and stealing in 1996 and breaching bail conditions in 1999.  There were further breaches of the Bail Act in 2000.  In May 2001 he was sentenced to imprisonment for two years for a large number of offences including fraud, entering a dwelling with intent, breaking and wilful damage. 

1. The applicant obtained treatment for his addiction or drug habit while in jail and the sentencing judge was told that by the time of his release in October 2002 he was clean.  But shortly thereafter, on 6 December 2002, he committed the first of the offences for which he was sentenced in this matter.

1. The applicant’s counsel told the sentencing judge that whilst he was imprisoned and before he was sentenced for these offences he undertook a course that enabled him to learn about the effects of alcohol.  It was submitted that the applicant had prospects of rehabilitation. 

Sentencing remarks

1. The sentencing judge described in detail and took into account the circumstances of the offences, the applicant’s personal circumstances, his co-operation with the administration of justice particularly concerning his admissions to the police, his indications of intent to plead guilty to the charges of assault, his request for an ex-officio indictment in relation to the gaol offences, and the fact that he pleaded guilty to the charge of wounding.  The judge observed that the applicant was entitled to some mitigation of the penalty on the wounding charge because he changed his plea to guilty, thereby saving the complainant the trauma of having to relive the events by appearing as a witness, but that it was a very late plea.  His Honour also took into account the adverse feature that all but the first of the offences were committed by the applicant whilst he was on bail, in the later cases whilst he was on bail granted a number of times. 

1. The sentencing judge rejected a submission by defence counsel that the penalty should be structured so that it did not exceed three years, thereby creating a situation in which there would be a fixed parole release date rather than merely a parole eligibility date.  The sentencing judge’s view was that to accede to the submission would distort the sentencing process. 

1. The judge observed that there was, in strict theory, no connection between the applicant’s offending at the gaol, his individual assaults, and the wounding, although it was possible to regard the four assaults as part of a pattern of behaviour.  After referring to the matters that justified mitigation of the sentence, the judge said that “as a matter of principle, it seems to me necessary to impose cumulative sentences in respect of the gaol offending, the assaults and the wounding.”

1. The sentencing judge then referred to the submissions in which the Crown had suggested, and defence counsel had concurred in the suggestion, that the wounding charge merited a sentence of about three years and that the assault charges merited an additional, cumulative punishment of about one year.  The sentencing judge indicated that he would be inclined to act on those figures and that the appropriate punishment for the gaol offences was 18 months, producing a total imprisonment of five and a half years.  Because the sentencing judge regarded that overall sentence as crushing and too long having regard to the overall criminality, the sentencing judge reduced the penalties to the sentences I described earlier (a total imprisonment of four years and nine months).

Discussion

1. I do not understand the applicant to challenge the conclusion that the four assault offences merited notional concurrent one year terms of imprisonment (which his counsel at the sentence hearing conceded were appropriate) or the judge’s reductions of those notional terms to nine month concurrent terms as part of the overall reduction to avoid the total sentence being crushing or too long for the applicant’s overall criminality.  The applicant does challenge the sentences for the gaol offences and I have assumed that he challenges the sentence for the wounding.  He also challenges the structure of the sentence.

1. As to the gaol offences, the applicant’s co-offender, Wilson, was sentenced to 18 months imprisonment, wholly suspended.  The applicant argued that his sentence should have been more lenient because it was the co-offender who actually supplied the drugs.  However the applicant was sentenced on the uncontroversial factual basis, which he also accepted in his argument in this Court, that he arranged for Wilson to supply the drugs.  The sentencing judge was informed that particular mitigating circumstances were taken into account in Wilson’s sentence.  She apparently suffered from a disability and was subject to the applicant’s influence.  The applicant also contends that he did not receive any benefit for requesting an ex-officio indictment.  It is clear, however, that the sentencing judge did take that into account. 

1. The applicant cited R v Reardon [2006] QCA 225, in which an offender, who had a criminal history associated with her drug use, was sentenced to six months imprisonment for supplying heroin to a prisoner in a correctional facility. However the Court there decided only that the sentence was not manifestly excessive. In so deciding the Court referred to R v Cole [1998] QCA 205, in which a 22 year old who supplied 1.3 grams of cannabis to her brother on a visit to him in a correctional facility as “a late Christmas present” and entered an early plea of guilty was sentenced to 18 months imprisonment suspended after three months.

1. No error has been demonstrated in the judge’s conclusions that these offences merited notional sentences of concurrent terms of imprisonment for eighteen months and that it was appropriate to reduce that to concurrent one year terms as part of the overall reduction of the total sentence.  In so concluding, I have taken into account the parole eligibility date and the applicant’s argument concerning the structure of the sentence, to which I will return.

1. As to the wounding offence, in light of the concession at the sentence hearing by the applicant’s counsel that the three year term of imprisonment proposed by the prosecutor was appropriate, the applicant must face significant difficulty in making good a contention that this aspect of the sentence was manifestly excessive: see R v Carter [2008] QCA 226 at [19]; R v AAF [2008] QCA 235 at [11]; R v Walsh [2008] QCA 391 at [23]. In these circumstances it is necessary to observe only that, subject to consideration of parole and the orders for cumulative terms to which I will return, the three year term of imprisonment was within the range for similar offending suggested by decisions of this Court: R v Friday [2005] QCA 440 (three years suspended after nine months), R v Devon [2004] QCA 216 (at [13]-[15]) (four years) and R v McDonald [2003] QCA 439 (three years suspended after 12 months).

1. In relation to the structure of the sentence, the applicant contends that the sentencing judge should have sentenced in conformity with what the applicant contends was an offer by the prosecutor to defence counsel that, if the applicant pleaded guilty to the wounding offence, the prosecutor would seek a sentence of three years imprisonment with a fixed parole release date set between three and six months from the date of sentence (which would take into account the approximately fifteen months spent by the applicant in pre-sentence custody in relation only to these offences), thus giving the applicant the certainty of a definite release date rather than mere eligibility for release on parole.  The applicant evinced a sense of grievance arising out of the circumstance that, so his submissions suggested, he had pleaded guilty to the wounding offence because of the prosecutor’s intimation of the sentence the Crown would seek.  The applicant’s concern is that he believes that he will not be released on the parole eligibility date of 3 June 2009. 

1. The first difficulty with this submission is that it overlooks the fact that what the prosecutor did say to defence counsel, according to the transcript in the sentence hearing in the trial division, concerned only the matters then pending in the District Court.  The respondent’s counsel informed the sentencing judge that the Crown’s submission in relation to the District Court matters alone was going to be that the appropriate head sentence was four years imprisonment with the applicant to serve one third of that period of time; that if the District Court matters were dealt with before the Supreme Court matters, then the Crown submission was going to be that the head sentence should be reduced to three years imprisonment to take into account the time served by the applicant in custody which could not be declared; that then a release date could be set three to six months from the date of sentence; that after the sentence proceedings started in the District Court the District Court judge expressed the view that the Supreme Court matter should be dealt with first; and that if all matters were dealt with together at the one time in the Supreme Court then the whole of the pre-sentence custody could be declared.

1. Accordingly, the applicant could not reasonably have construed what the prosecutor said to defence counsel as having any application if, as ultimately occurred, the District Court matters were dealt with together with the gaol offence in the Supreme Court.  The statements attributed to the prosecutor took no account of the effect on the overall sentence of the sentence to be imposed for the gaol offences.  The applicant’s real complaint is that he was sentenced for all of the offences at one time in the Supreme Court with the result that his lengthy pre-sentence custody could be taken into account as time served under a sentence rather than going towards the reduction of the sentence itself.  However the applicant does not seek to challenge the process by which the sentencing judge came to sentence the applicant for the offences on the indictments originally presented in the District Court.

1. More fundamentally, it was ultimately the responsibility of the sentencing judge to determine the appropriate sentence. I can see no ground for interfering with the sentencing judge’s decision to declare that the 440 days of pre-sentence custody was time served under the sentence: that was a conventional exercise of the discretion conferred by s 159A of the Penalties and Sentences Act 1992. And if, as the sentencing judge concluded, an overall sentence exceeding three years was the appropriate term of imprisonment, it was outside the power of the sentencing judge to fix a parole release date. The effect of sections 160A and 160C(5) of the Penalties and Sentences Act 1992 in those circumstances was that the sentencing judge was empowered only to specify a parole eligibility date.

1. That analysis assumes that the sentencing judge did not err in imposing cumulative terms of imprisonment resulting in an overall term of imprisonment exceeding three years. If, by the sentencing judge’s observation in the sentencing remarks that it was “as a matter of principle…necessary to impose cumulative sentences in respect of the gaol offending, the assaults and the wounding”, the judge intended to convey that the circumstances of these offences left the court with no discretion to exercise I would respectfully disagree. The discretionary character of orders imposing cumulative terms of imprisonment under s 156 of the Penalties and Sentences Act 1992, and the necessity for a clear justification for making an exception to the general rule under s 155 of that Act that imprisonment is to be served concurrently with imprisonment imposed for any other offence, were emphasised in R v Clements (1993) 68 A Crim R 167 at 172-173.

1. Although the sentencing judge’s observation, which reflected similar remarks made by the sentencing judge during the sentence hearing after the judge was apprised of the relevant facts, are capable of being construed as inappropriately confining the discretion, I have concluded that there was no error such as to justify the interference of this Court.

1. Reading the sentencing remarks as a whole, I construe the sentencing judge’s observation as conveying his Honour’s strong view that this was a clear and compelling case for ordering imprisonment to be served cumulatively, provided that the resulting total term was appropriately reduced to ensure that it reflected no more than the overall criminality and was not crushing.  That view was open to the judge in these circumstances: the cumulative terms were imposed for offences which were unconnected and separated by substantial periods of time; the gaol offences were entirely different in character from the assaults and the wounding; in comparison with the assault offences, the subsequent wounding offence involved a significant escalation in violence in the use of a knife; all of the offences committed after the gaol offences were committed whilst the applicant was on bail and in breach of his bail conditions; and the applicant’s counsel conceded that it was appropriate to impose a three year term for the wounding offence cumulatively upon the one year term for the assault offences.  

1. As to the parole eligibility date, having regard to the circumstances earlier outlined and particularly the applicant’s criminal record, his repeated violent offending, the fact that he committed the later offences whilst on bail, and the lateness of his plea to the wounding charge, it cannot be said that the sentencing judge exceeded the limits of his discretion by ordering parole eligibility after the applicant had served about 40 per cent of the overall term.

1. Accordingly I conclude that it was within the sentencing judge’s discretion to decline to devise a sentence of the character now advocated by the applicant.  There was no error that justifies interference in the sentence by this Court.

Order

1. I would refuse the application for leave to appeal.