R v Mckinnon

[2000] QCA 79

[R v McKINNON]
  [2000] QCA 79

COURT OF APPEAL

McMURDO P
THOMAS JA
ATKINSON J

CA No 392 of 1999

THE QUEEN

v.

JOHN DEAN McKINNON  Applicant

BRISBANE

..DATE 16/03/2000

JUDGMENT

THOMAS JA:  The applicant, along with his co-offender Gardner, pleaded guilty to one count of assault occasioning bodily harm in company.  He was sentenced to two years' imprisonment cumulative upon sentences of two years which he was already serving.  At the time of sentence the earliest date for consideration of his release on parole was 3 March 2000.  The learned sentencing Judge ordered that that date be extended by eight months to 3 November 2000.

The co-offender was also sentenced to two years' imprisonment cumulative.  In his case the sentence which he was serving at that time was one of 15 months and his earliest date for release on parole was 5 January 2000.  This was extended by a period of six months to 5 July 2000.

At the time of the offence, 7 July 1999, the applicant was 24 and Gardner was 20. 

The complainant was an older inmate of the Rockhampton Correctional Centre.  He was physically stronger than the applicant or Gardner.  Gardner had been the recipient of unwanted homosexual advances from the complainant which had been occurring for a significant time.  The incident in question was described as a pre-emptive strike by Gardner aimed at preventing further sexual harassment and assault upon him by the complainant.  The applicant and Gardner agreed that they would assault the complainant.  Gardner went to the doorway of the complainant's cell and caused hot water to fall on him resulting in burning to the complainant's neck, face, shoulder, arm and leg.  It is unclear where the hot water came from but it may well have been in the complainant's cell.  The complainant pushed Gardner out of the doorway into the hallway and at that point the applicant joined in.  The fight ended with all three parties exchanging blows whilst still on their feet.

The burns would have been painful but the learned sentencing Judge expressed the view that the complainant's injuries would have subsided in a fairly short space of time.  The complainant also sustained bruising around the left eye and tenderness over the left cheekbone.  He claims to have subsequently suffered from dizzy spells and headaches and to have felt increased concerns over his safety in prison. 

It was accepted that the applicant acted out of a sense of misplaced loyalty to his young companion.  

The grounds of appeal, including a ground raised by amendment, raise two issues, namely excessiveness and parity. 

It is perhaps surprising that the applicant was dealt with more severely than the co-offender.  No doubt this proceeded from the fact that the applicant is a little older than the co-offender and also has a considerably more serious criminal history.  However, it is difficult to see that these matters outweigh the circumstance that the co-offender was the instigator and the principal actor in the assault and was personally responsible for the most reprehensible part of the assault, namely the use of scalding water.

The matter is best considered by initially considering whether the sentence was too heavy.  The applicant has numerous convictions for offences of dishonesty and also some convictions for destruction of property, assault and assault of police.  The learned sentencing Judge, however, remarked that the offences involving violence had resulted in sentences of 21 days and 14 days' imprisonment and that they were not by any means offences at the upper end of the scale. 

In the context of cases of assault which occur in prisons the present case is at the less serious end of the spectrum.  It has the feature of being a response by a relatively young prisoner in a misguided attempt to prevent further unwanted homosexual advances.  A person in the position of Gardner deserves the protection of the authorities from such dangers.  Unhappily, such protection is not always forthcoming.  The learned sentencing Judge noted that in the circumstances existing in the prison it was not easy for Gardner to distance himself from the complainant and the complainant's advances. 

His Honour went on to observe that persons such as the complainant deserve protection from attack just as much as any person in the community and there is some substance in this.  But however the matter is analysed the situation is analogous to an excessive response following provocation by a complainant.  In the picture which has emerged one can understand an element of panic or hysteria in Gardner's consideration of how he could best protect himself.  In turn, the applicant when questioned by a prison officer the same evening said,  "What do you expect?  I couldn't let that kid fucker do that to my mate." 

In my view, the sentence that was imposed on this applicant is considerably higher than the appropriate level of punishment required for the actions of the applicant.  He did not play the major role, he made an early confession to the correctional officer followed by an early plea of guilty. 

A sentence of two years might be appropriate for more serious assaults as for example where more serious injury was caused or where the motivation of the offender was more heinous than that shown here.  We were referred to a number of decisions involving assaults in prisons where sentences of two years or greater have been upheld including R v. Neuendorf CA No 199 of 1999, 26 July 1999, and R v. Doyle,
CA No 454 of 1993, 6 April 1994.  However, the situation involving assaults upon prison officers is, in my view, somewhat distinguishable from an assault of the present kind.  We were also referred to R v. Riley CA No 23 of 1999, 14 April 1999, where two assaults were committed on a prison officer and a nine month sentence cumulative resulted.  I do not, however, think that any of the cases to which we were referred were truly comparable. 

In my view a cumulative sentence of 12 months with an extension of the parole period by four months represents an adequate response from the Court to the present circumstances.  It therefore becomes unnecessary to consider any question of parity in that the sentence I propose to substitute is less than that of the co-offender who has not to this point applied for leave to appeal.

I would grant leave to appeal, allow the appeal against sentence, set aside the sentence below and substitute a sentence of 12 months' imprisonment with consideration for parole after serving four months of that term.  The new parole recommendation date will be 3 July 2000.

THE PRESIDENT:  I agree.

ATKINSON J:  I agree.

THE PRESIDENT:  The order is as proposed by Justice Thomas.

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