R v Ingui

[1994] QCA 516

[1994] QCA 516

COURT OF APPEAL

McPHERSON JA
DAVIES JA
DERRINGTON J

CA No 365 of 1994

THE QUEEN

v.

WILLIAM BILLY INGUI  Applicant

BRISBANE

..DATE 26/10/94

JUDGMENT

DERRINGTON J:  On 29 August 1994, the applicant was convicted of an offence of assault occasioning bodily harm whilst in company on 28 August 1994, that is, the day before he pleaded guilty in the Magistrates Court in Cairns.

He was a couple of weeks past his 17th birthday at the time and a sentence of six months' imprisonment was imposed upon him.  The circumstances of the offence were that the complainant was walking along a footpath fairly late at night in Cairns when he was approached by the applicant and his accomplice.  The accomplice requested a cigarette from the complainant who said he did not intend to give them anything and abused the applicant and his accomplice.

The accomplice then hit the complainant and a fight ensued.  The accomplice was losing the fight when the applicant joined in and hit the complainant.  As the result of the fight the complainant suffered some bruises and lacerations.  The Magistrate, in imposing a sentence on such a young offender and recognising that he had no previous convictions, was moved by the express belief that the Court cannot sit by and see the creation of a situation where a citizen who has, as he called it, "the effrontery to venture into the streets of Cairns late at night is in real danger of being set upon"; and the Magistrate regarded the attack as cowardly because of the presence of two persons engaged in the attack.

The respondent concedes, and with respect I agree, that the sentence imposed was manifestly excessive.  That is so taking into account a number of features, the most important of which is the youth of the applicant, that he pleaded guilty at the first opportunity, that so far as the Magistrate was concerned he had no previous convictions, and, very importantly, that he was not the person who accosted the complainant in the first instance nor did he engage in assaulting the complainant in the first instance but merely came in at the end to help his friend.  In fact he did have some prior criminal convictions; three of entering a dwelling house with intent, and he was placed on a good behaviour bond on 7 October 1993.

MR BULLOCK:  Your Honours, I apologise for interrupting but could I be heard on that?

DERRINGTON J:  Yes.

MR BULLOCK:  It appears that the Magistrate was told that he had no previous convictions.

DERRINGTON J:  Yes.

McPHERSON JA:  Yes.

MR BULLOCK:  And that he accepted that and the police prosecutor's affidavit which we filed had one previous conviction on it.  The first two did not result in convictions.  Now, it appears that the Magistrate was not told about that conviction and accepted that he had no previous.

DERRINGTON J:  As a matter of fact I do not think I was either.

DAVIES JA:   No, we were not.  Both outlines, I think, say that there were no previous convictions.

DERRINGTON J:  Yes. 

McPHERSON JA:  Well, I don't know precisely what follows from that.  There is a provision in the Code which says that you cannot increase a sentence by using further evidence on appeal but that is not this case.  There is no suggestion of increasing it but you do not suggest any different an attitude, on your part, in the light of this from what it was when you addressed us this morning?

MR BULLOCK:  No, I don't.

DERRINGTON J:  However the Magistrate was not told of that criminal record.  Nevertheless, the age of the applicant and his early plea of guilty associated with the fact that he was certainly not the primary mover in the transaction all go to suggest, very strongly, that at least a different approach should have been adopted towards him compared with that which might be adopted towards his accomplice, who had failed to appear at that time.

Accordingly, the view of the respondent is appropriate, that the appeal should be allowed, that the sentence imposed below should be set aside and in lieu thereof an order be made that the applicant be placed on probation for a period of two years and that he perform 120 hours of community service. 

It should be mentioned that they are a suitable substitute taking into account that the applicant served about six weeks' imprisonment under the Magistrate's sentence before he was admitted to bail.  At the time of the sentence he had spent a night in the watch-house. 

Accordingly, the application should be granted, the appeal allowed and the sentence as suggested substituted for that imposed by the Magistrate.

McPHERSON JA:  I agree.

DAVIES JA:  I agree.

McPHERSON JA:  Mr Bullock, the Registry at some stage suggested to me, as they sometimes do that one needs to ensure when imposing a sentence of this kind that one intends the conviction to be recorded.  I am not quite sure that I know the reason why; probably because I did not attend to what was said to me but is it necessary that we direct that a conviction be recorded in a case like this where we are varying the sentence and substituting community service?

MR BULLOCK:  Probably be better to, Your Honour.

MR COLLINS:  Your Honour------

McPHERSON JA:  I think it would follow; that's my view but I am told that in this case or perhaps it is the case where one is imposing parole in lieu of a sentence one has actually to say that the conviction is to be recorded.  Frankly, I cannot see why you would not in this case but you can tell us why we should not if you like?

MR COLLINS:  No, Your Honour, in view of his other previous convictions of which I was unaware - in fact, had checked only recently.

DERRINGTON J:  Yes.  If he had no previous convictions I would have thought twice about it but-----

MR COLLINS:  Yes, but I - if one is talking hypothetically I can see where a serious injustice could well be wrought if the person has been - I'm not saying this particular one but a person has been - had a sentence imposed upon them which was manifestly excessive and they have no previous convictions and surely they should be permitted to - shall we say embark in their employment and so forth without having a conviction registered against them.

McPHERSON JA:  Well, that's another matter perhaps and hopefully we do not have to consider it at present.

MR COLLINS:  No, but I have merely commented on it in case a precedent - but this would be different-----

McPHERSON JA:  Well, we will call on you in that case when we get it, Mr Collins.  Thanks very much.

MR COLLINS:  Sorry, Your Honour.

McPHERSON JA:  That's all right, Mr Collins.  In case there should be any doubt about it we intend that a conviction should be recorded in this case.

DAVIES JA:  I agree.

MR BULLOCK:  Sorry to complicate things but he would have to consent to the probation order and the community service order.

McPHERSON JA:  Yes.

MR COLLINS:  I can indicate that that consent has been obtained in anticipation.

DERRINGTON J:  I am sorry, I assumed that that was so when you agreed to it, Mr Collins.

McPHERSON JA:  The orders of the Court are:
(1)  the appeal is allowed and the sentence imposed below is   set aside;
(2)  the conviction is recorded;
(3)  the applicant perform 120 hours of community service;
(4)  the applicant, having signified his consent, is admitted to probation for a period of two years subject to:
     (a)  the supervision of a community correction officer,
         and
     (b)  the requirements numbered (1) to (6)(i) contained in          Form 29 of the Corrective Service Regulations 1989. 

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