R v Johnson

[1993] QCA 300

IN THE COURT OF APPEAL [1993] QCA 300

SUPREME COURT OF QUEENSLAND

C.A. No. 206 of 1993

Brisbane
[R. v. Johnson]

BETWEEN:

T H E Q U E E N

v.

JAMES MELROSE JOHNSON

(Applicant)

The President
Mr Justice Davies

Mr Justice Moynihan

Judgment delivered 17/08/93
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL ALLOWED AND THE SENTENCE OF IMPRISONMENT IMPOSED UPON THE APPLICANT IS SET ASIDE. IN LIEU THEREOF, A PROBATION ORDER IS MADE RELEASING THE APPLICANT UNDER THE SUPERVISION OF AN AUTHORISED OFFICER OF THE QUEENSLAND CORRECTIVE SERVICES COMMISSION FOR A PERIOD OF THREE YEARS COMMENCING FROM THE DATE OF THIS ORDER ON THE CONDITIONS STATED IN SECTION 93 OF THE PENALTIES AND SENTENCES ACT, AND ON THE FURTHER CONDITION THAT THE APPLICANT PERFORM UNPAID COMMUNITY SERVICE FOR 200 HOURS WITHIN ONE YEAR FROM THE MAKING OF THIS ORDER. THE APPLICANT MUST REPORT TO THE AUTHORISED COMMISSION OFFICER AT BRISBANE WITHIN FOURTEEN DAYS OF THIS ORDER.

CATCHWORDS:	CRIMINAL LAW - Sentence - 18 year old assaulted girl - intoxicated - unblemished record and in permanent employment - 3 years probation and 200 hours unpaid community service ordered.
Counsel:	Mr. T. Rafter for the applicant Mr. D. Meredith for the respondent

Solicitors: Messrs. Robert Bax and Associates for the

applicant

Director of Prosecutions for the respondent

Hearing Date: 12/08/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A.No. 206 of 1993

Before The President

Mr Justice Davies

Mr Justice Moynihan

[R. v. Johnson]

BETWEEN:

T H E Q U E E N

v.

JAMES MELROSE JOHNSON

(Applicant)

REASONS FOR JUDGMENT - THE COURT

This is an application for leave to appeal against a sentence imposed in the District Court on 24 June 1993. The applicant was sentenced to imprisonment for six months after he pleaded guilty to an offence of assault on 1st April 1989.

At 12.05 a.m. that day, the complainant and the applicant both alighted from a train at the Buranda Railway Station. The complainant was then aged 19 years and the applicant was 18 years of age. The applicant, who had consumed alcohol, followed the complainant for some distance and then grabbed her from behind. There was a dispute concerning whether the applicant slapped the complainant on the face, placed a hand over her mouth or pulled her to the ground. The applicant denied doing so, but admitted putting his hands across the complainant's eyes for about 10 seconds and that the complainant fell down although he tried to hold her up. The complainant, who was understandably terrified, struggled and screamed loudly. A male who was in the vicinity saw what had occurred and transported the complainant to a nearby hall in his motor vehicle. Shortly afterwards, he saw the applicant walking along the street and told him that he had better come to the hall and talk to the police. The applicant did so and waited until the police arrived. He told the police constable who attended that he "was just playing an April Fool's joke" and confirmed that in a later record of interview.

The applicant was charged and admitted to bail which he failed to answer. Subsequently, he ascertained that a warrant was outstanding and surrendered himself and pleaded guilty. However, he was not convicted and sentenced until more than four years after the offence, by which time he was 23 years of age.

The sentencing judge correctly remarked that the offence was serious, that women must be protected and that the deterrent aspect of sentencing played an important role in determining the appropriate sentence for the applicant. This Court endorses those remarks.
However, there are other factors also to be taken into account. The applicant was young and immature and had been drinking at the time. Apart from this single offence, his record is unblemished both before and after this incident. He is in permanent employment as a computer drafter, and has completed a number of TAFE courses to qualify him for his position. He has excellent character references, which emphasise that the offence was totally out of character.
Under sub-section 9(4) of the Penalties and Sentences Act 1992, the Court is forbidden to impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously convicted unless, having considered all other available sentences and taken into account the desirability of not imprisoning a first offender, the Court is satisfied that no other sentence is appropriate in all circumstances of the case.

While recognising the disgraceful nature of the applicant's conduct and the fear it must have caused the complainant, the Court cannot be so satisfied. As the Penalties and Sentences Act recognises, it is against the public interest to impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted if that course can be avoided. Consistently with that policy, if the Court were to consider that no sentence other than imprisonment were appropriate, it would be open to it to suspend the term of imprisonment pursuant to section 144.

However, the Court considers that the community's interests would be better served if its disapproval of the applicant's wholly unacceptable conduct were marked by a period of probation coupled with a community service order. By his Counsel, the applicant consented to such a course. Having regard to the matters referred to in section 12 of the Penalties and Sentences Act, the Court considers that a conviction should not be recorded.

The application for leave to appeal against sentence is granted, the appeal is allowed and the sentence of imprisonment imposed upon the applicant is set aside. In lieu thereof, a probation order is made releasing the applicant under the supervision of an authorised officer of the Queensland Corrective Services Commission for a period of three years commencing from the date of this order on the conditions stated in section 93 of the Penalties and Sentences Act, and on the further condition that the applicant perform unpaid community service for 200 hours within one year from the making of this order. The applicant must report to the authorised Commission Officer at Brisbane within fourteen days of this Order.