R v Dai

[2004] QCA 472

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAI [2004] QCA 472

PARTIES:

R
v
DAI
(applicant)

FILE NO/S:

CA No 372 of 2004
DC No 51 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gladstone

DELIVERED EX TEMPORE ON:

2 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2004

JUDGES:

McMurdo P and Mackenzie and Philippides JJ
Separate reasons for judgment of each member of the Court, McMurdo P and Philippides J concurring as to the orders made, Mackenzie J dissenting

ORDER:

1.   Grant the application for leave to appeal against sentence

2.   Allow the appeal

3.   Vary the sentence imposed at first instance by substituting a sentence of three months imprisonment

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN GRANTED – OTHER OFFENCES – applicant convicted of assault occasioning bodily harm and sentenced to 80 hours community service and three years probation – whilst on probation convicted of minor assault and resentenced for original offence to six months imprisonment – original assault involved applicant biting cousin while trying to remove her from applicant's property – second assault involved pushing policeman in the chest when he entered her premises – applicant had benefit of many previous community-based orders – applicant pregnant at time of sentencing for first assault – applicant had only completed 17 hours of community service, but learned sentencing judge at first instance had envisaged that she would not be able to undertake community service for a number of months due to the birth of her child – whether sentence imposed was manifestly excessive

COUNSEL:

M Green for the applicant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  The applicant was sentenced to 80 hours community service and three years probation on 28 April 2004 in the Brisbane District Court for the offence of assault occasioning bodily harm.  On 2 September 2004 at the Gladstone Magistrates Court she was convicted and fined $600 for assaulting a police officer in the performance of his duties on 2 August 2004, breaching the orders of 28 April 2004.  On 24 September 2004 she was dealt with in the District Court of Gladstone for that breach.  The community-based orders were revoked and she was resentenced for the original offence to six months imprisonment with a recommendation she receive counselling in prison for her addiction and any psychiatric problems.  The learned sentencing Judge also indicated that she may be able to keep her young baby with her in prison.  This Court has not been informed whether or not that has happened.  The applicant contends the sentence is manifestly excessive. 

She is 28 years of age and has a significant history, commencing in 1994 when she was fined for receiving.  In 1995 she was convicted and fined for minor drug matters.  She later obtained a fine option order of 53 hours community service in respect of that fine.  The following year that fine option order was revoked after she had performed only three hours.
In 2000 she was convicted and fined for obstructing a police officer.  In 2001 she was placed on 12 months probation without conviction and ordered to pay compensation of $250 for one count of fraud and one count of stealing.  In 2002 she was convicted of wilful damage between April and September 2001, that is during the probation period, and was sentenced to three months imprisonment wholly suspended for one year.  On
6 November 2003 she was placed on a good behaviour bond for 12 months with no conviction recorded for using a carriage service to menace or harass.  On 9 March 2004 a fine option order in respect of some traffic matters was revoked after she had completed 13 of its 26 hours. 

Despite her lengthy record, she has never before been sent to prison.  Her criminal record will now contain these additional assaults.  It is obvious that if she continues to commit offences she cannot expect further leniency from community- based orders and is likely to serve further periods of imprisonment.

The circumstances of the original offence of assault occasioning bodily harm are as follows.  The applicant had an altercation with a 17 year old complainant, her female cousin, who refused to leave her premises when requested.  The complainant left the house but remained on the lawn.  In her efforts to remove the complainant, the applicant used excessive force by biting her hard on the arm causing a superficial laceration.  As the learned sentencing Judge noted, the concerning aspect was that biting can spread very serious diseases such as hepatitis and HIV/AIDS.  She was, at the time of that sentence, heavily pregnant with her fifth child.  The learned sentencing Judge noted that in his view the appropriate sentence was imprisonment but because of the special circumstances, he would offer another community-based order, warning her in these very strong terms:

"But remember, it is one of my orders and if you breach it, you come back before me and if that happens, you might anticipate finishing up in a very unpleasant place for nine months."

Despite the sentencing Judge's stern words, the objective circumstances of the offence, her personal circumstances and her early plea, did not, as the learned counsel for the respondent here today very fairly conceded, warrant a sentence of nine months imprisonment.  No doubt his Honour was trying to impress firmly on the applicant the importance of finally complying with these community-based orders.  The learned sentencing Judge told her that she had 12 months to complete the community service but because of her pregnancy he did not anticipate she would start it for about four or five months.

The report dated 9 September 2004 from the applicant's  Community Corrections officer tendered at the breach proceedings noted the following.  She has found it difficult to comply with the order, reporting four weeks late and giving the explanation that she had a four week old baby.  She has five children but the older four are in the care of the Department of Communities.  She has supervised access to them twice a week for one hour.  She claims she was sexually assaulted when a minor but her mother does not accept these allegations and they are estranged.  She has had abusive turbulent relations with her three ex-partners.  She has a problem with substance abuse and is a chronic user of marijuana.  Providing assistance to [the applicant] for these various problems has been difficult.  She refuses to work with the police who were investigating her claims of sexual assault.  She is in conflict with the Department of Communities who have care of her older children.  She is also in conflict with the counsellor at Anglicare.  Whilst she said she could work with counselling services at Women's Health and Alcohol, Tobacco and other Drug Services she has not done so.  She has not submitted to urine analysis, admitting that it would continue to prove positive for illicit substances.  She seemed stressed and depressed and was referred to Mental Health who assessed her as not suffering from any diagnosed mental disorder and recommended counselling which [the applicant] had not taken up.  At the time of the report, the applicant had completed only four hours of community service, despite a request to her to perform five hours each week.  Because she had been unable to comply with the requirements of her order, the report recommended her probation order be revoked and that she be resentenced for the original offences and that she was unsuitable for any further community-based orders.

The offence constituting the breach occurred when the police executed a search warrant at her home at 9 am on 2 August 2004.  She refused to open the door to them, even after they identified themselves as police.  They forcibly entered the premises.  The applicant pushed one police officer in the stomach with her two hands.  The police told her to calm down and she was later charged.

Her lawyer at sentence on the breach emphasised that she had the sole care of her youngest child who was four and a half months old.  She was now willing to comply with community- based orders originally made.  Her life had been in turmoil, not only with the birth of the baby but because of the allegations of sexual assault she had made against her father who was the respondent to a domestic violence protection order she had taken out.  She now recognises that she has a problem with abuse of cannabis.  She planned to move from Gladstone to a country town where she thought she could start afresh, away from peer group and family pressure.  She said that she pushed the police officer because she thought that when he pushed her she might fall on her baby, although she accepted by her plea that she reacted inappropriately.  Her lawyer contended that a fully suspended sentence should be imposed for the resentence on the original offence and emphasised that since her community corrections officer prepared her report, she had completed a further 12 hours of community service making 17 hours in all.

The learned sentencing Judge referred to the applicant's unfortunate personal and criminal history, understandably concluding that it was useless to impose another community- based order.  He thought, however, that a wholly suspended sentence would not assist in solving her problems.  His Honour was certainly entitled to so conclude.

The applicant's counsel now contends that the sentence is manifestly excessive considering the nature of the original offence, her plea of guilty and co-operation with the administration of justice, her personal circumstances and the fact that she had performed 17 hours of community service within the first five months of the order, during which time she had given birth to a child and the original sentencing Judge did not anticipate she would be able to perform very much community service in that time in any case.

On the other hand, the applicant has so consistently continued to breach community-based orders I can understand why the learned sentencing Judge felt he was left with no option other than to impose a prison sentence.  A short term in custody has at least provided her with a period of abstinence from cannabis and a time to reflect on, and hopefully reorder, her life, so that when she is released from prison she will be able to be law-abiding.

There is merit, however, in the submissions of the applicant's counsel.  I am finally persuaded that the sentence imposed was manifestly excessive and that the learned sentencing Judge gave insufficient weight to the factors emphasised by her counsel in this Court today.

I would grant the application for leave to appeal, allow the appeal and vary the sentence imposed at first instance by substituting a sentence of three months imprisonment.

MACKENZIE J:  Many of the personal circumstances of the applicant have been set out in the reasons delivered by the President.  It was not vigorously submitted that six months was excessive although it may be thought that it was towards the top of the range for this sort of offence.

There is some concern in my mind as to whether the factor that the applicant had not performed much community service was given too much weight by the sentencing Judge and whether the community service that she had actually performed was properly allowed for.  She had only done four hours community service up to the 9th of September 2004, the date of the Community Services report and had subsequently done only another 12 hours up to the date of sentence.  She did, however, have 12 months to complete the 80 hours community service.

The learned sentencing Judge, who was not the same Judge who gave the probation and community service orders, sentenced her to six months imprisonment saying that it reflected a failure to comply with previous community based orders and gave her the opportunity to break away from the drug scene.  That sentence was less than the original sentencing Judge thought would be appropriate.

The District Court Judge who made the orders originally, treated the case for which he was sentencing as one where, while the victim had become a trespasser and the applicant was entitled to use reasonably necessary force to remove her, the force used was excessive and aggravated by the risk of disease transmission by biting.  That is, I think, an important factor in sentencing for this kind of offence.

He noted the personal circumstances and the plea of guilty and decided in the special circumstances of the case to give a community based order, notwithstanding that he believed actual imprisonment was appropriate.  It is apparent from his warning to the applicant of the consequences of failing to comply with the probation order that he had a sentence of nine months imprisonment in mind as an appropriate sentence.

It should also be noted that the breaching offence was committed when she was resisting authorised entry by the police officers to her premises.  The fact of the matter is that she had been less than satisfactory in performing her obligations under the probation order.  She failed to report initially for four weeks although there was perhaps an extenuating circumstance in that she would have been close to having her child for the first part of that period and then a fairly obvious reason why she may not have reported after that, having just given birth.

Subsequently, when she did make contact, assisting her to address the issues in her life with an aim of reducing the risk of recidivism proved problematical.  She severed her connections with a variety of agencies where she may have gained help, either because she said she could not work with them, or for no assigned reason at all. 

When urine analysis was suggested to minimise substance abuse, she refused to engage in it because of the probability she would fail.  She refused counselling for stress and depression.  That pattern suggests that it would be futile to continue with community based orders and that was the view taken by the learned sentencing Judge. 

Since I apprehend that I am in the minority in relation to the matter, it is sufficient for me to say that I do not, in the circumstances, think that a reduction of the order proposed is justified on the basis that the sentence was manifestly excessive and I would have refused the application.

PHILIPPIDES J:  I agree with the reasons given and the orders proposed by the President.

THE PRESIDENT:  The orders are as I have set out.

-----