R v Nona

[1998] QCA 312

IN THE COURT OF APPEAL	[1998] QCA 312
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No.273 of 1998
[R. v. Nona]

THE QUEEN

v.

STEPHEN NONA

(Applicant) Appellant

Thomas J.A.
Shepherdson J.

Jones J.

Judgment delivered 16 October 1998
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SET ASIDE THE SENTENCE BELOW AND IN LIEU THEREOF SENTENCE THE APPLICANT TO 1 YEARS IMPRISONMENT AND DECLARE THAT THE APPLICANT BE ELIGIBLE FOR CONSIDERATION FOR PAROLE FROM TODAY. DECLARE THE APPLICANT HAS SPENT 129 DAYS IN PRE-SENTENCE CUSTODY BETWEEN 20 MARCH 1998 AND 27 JULY 1998, AND FURTHER DECLARE THAT THE TIME OF 129 DAYS BE TIME ALREADY SERVED UNDER THE SENTENCE.

CATCHWORDS: CRIMINAL - sentence application - applicant convicted of 2 charges of assault occasioning bodily harm whilst armed - whether a sentence of 18 months imprisonment for each offence, to be served concurrently is manifestly excessive.

Mill v The Queen (1988) 166 CLR 59

Counsel:	The applicant/appellant appeared on his own behalf Mr. W. Clark for the respondent
Solicitors:	The applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	7 October 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16 October 1998

1. On 27 July 1998 the applicant pleaded guilty before a learned District Court judge in Townsville, to 2 charges of assault occasioning bodily harm whilst armed. The offences were committed on the night of 1 December 1997 in the Flinders Street Mall at Townsville. On 27 July 1998 the applicant was sentenced to 18 months imprisonment for each offence, such sentences to be served concurrently - pre-sentence custody of 129 days was declared time served under the sentences.

2. The applicant has sought leave to appeal against those sentences on the ground that they are manifestly excessive.

3. The circumstances giving rise to the offences were as follows.

4. The complainant in count 1 was a male Korean tourist who had fallen asleep in the Flinders Mall, whilst waiting for a bus. He awoke at 11.30 p.m. to find a person attempting to steal tobacco from his pocket. The applicant, who was not the thief, was standing nearby and began throwing rubbish bin lids at the complainant. The first missed but the second struck him on the right elbow which he had raised in front of his face for protection. The applicant and the other male then walked off. The complainant in this count received a cut and bruising to his elbow. He was fearful of further attack and walked off quickly but was pursued by the applicant, who continued to throw rubbish bin lids at him. The lids were made of fibreglass and were the offensive instruments alleged in each of the two charges. The complainant sought assistance from occupants of a nearby vehicle, one of whom became the second complainant. The applicant struck the second complainant s vehicle with a rubbish bin lid before striking the second complainant in the face with the same lid which he had recovered and thrown again. The second complainant suffered a cut and bruising over his nasal passage and neck pain.

5 The applicant said to the second complainant Do you like that? do you want

some more? before running off with his companion.

1. The applicant was arrested the following morning and subsequently identified by the second complainant. He was not interviewed because he claimed to be too intoxicated to recall committing the offences. At the sentence hearing the applicant s counsel referred to his client s intoxicated state and submitted effectively what he was doing was using these rubbish bin lids, throwing them in the manner of a frisbee. It would appear it was more an exercise in hi-jinks than an effort to seriously injure anybody .

2. The applicant was born on 31 March 1971 and was 26 years old at the time of these two offences. He had a fairly extensive criminal history, predominantly for house breaking and burglary, but including also other offences of dishonesty, wilful and unlawful destruction of property, and damage of property as well as drug offences. None of the offences appearing in his criminal history appear to have involved offences of violence against the person. It is true to say that between 14 March 1989 and 30 March 1992 (both dates inclusive) in six appearances before courts the applicant had been sentenced to terms of imprisonment ranging from 1 month up to 4 years, and that on 30 March 1992 in the District Court at Townsville, on the last of these occasions, he was sentenced to terms of imprisonment for a number of offences the highest sentence being 4 years imprisonment.

3. Reading the applicant s criminal history leaves one with the clear impression that for most of the last 8 or so years this applicant has been in custody, and that soon after his release into the community on each occasion he reoffended.

4. The learned sentencing judge took into account matters including the applicant s guilty pleas, his extensive criminal history, his apparent intoxication at the time of the offences, his arrogant, violent and completely anti-social behaviour towards innocent law abiding people going about their business in a public place - the Flinders Street Mall, the prevalence of the offences to which the applicant had pleaded guilty and the need for general deterrence.

5. Before this Court the applicant submitted that the learned sentencing judge had before him at the time the applicant was sentenced the file of Sydney Nona ; he identified Sydney Nona as another person. The transcript of the sentencing proceedings shows this submission to be incorrect. The record shows the learned sentencing judge had before him the criminal history of the applicant, Stephen Nona. In addition, the applicant suggested that the offences in his criminal history are not correctly shown. The existence of such alleged errors was never suggested to the learned sentencing judge. His counsel at the sentencing procedure agreed the criminal history before his Honour was that of the applicant. The applicant appeared for himself in this Court. No material was submitted to this Court which would enable it to act on a different basis than that shown by the criminal history Exhibit 1. Perhaps most importantly the criminal history of the applicant which was before the learned sentencing judge showed that before committing the subject offences he had no prior criminal history which disclosed any crime of violence against a person.

6. The applicant has submitted that the sentences imposed are manifestly excessive considering that he has no prior conviction for offences of violence to the person.

7. The learned sentencing judge s comments show that the applicant was in pre-sentence custody between 20 March 1998 and 27 July 1998 [the date of his sentence] - a total of 129 days. However, an examination of his criminal history further shows the following:-

   (a)      the 2 offences for which he was sentenced on 27 July were committed on 1 December 1997;

   (b)      on 22 January 1998, he appeared in the Townsville Magistrates Court on a charge of having breached a bail undertaking (on 16 December 1997) for which he was sentenced to 3 months imprisonment, and on the same day, in the same court, a suspended sentence of 1 month, which had been imposed on 7 January 1997 was activated.

8. The criminal history sheet shows that on 22 January 1998, the Magistrates Court took into account pre-sentence custody of 33 days - the commencement of such custody must have been on or about 20 December 1997.

9. The inference that can be drawn from these entries is that after he was arrested on the present charges he was granted bail and on 16 December 1997 breached that bail undertaking. A further inference to be drawn is that service of the sentences imposed on 22 January 1998 ended on 19 March 1998, and thereafter he was in custody solely in relation to the two offences for which he was sentenced on 27 July.

10. Effectively then, the applicant, before he was sentenced on 27 July had been in custody from about 20 December 1997 for a number of offences committed at about the same time. In our view the learned sentencing judge was called on to apply the totality principle as stated in Mill v The Queen (1988) 166 CLR 59.

11. In that case the High Court described the totality principle as a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences (p.62). The Court then quoted the following succinct description of the totality principle in Thomas, Principles of Sentencing. 2nd Ed. (1979) pp.56 and 57:-

    The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is just and appropriate . The principle has been stated many times in various forms: when a number of offences are being dealt with and specific punishments in respect to them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [ ]; when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences .

12. The principle equally applies when a second sentencing court deals with an offender who has already been dealt with by another sentencing court. (Mill, above at pp.62-64; R v Knight (1981) 26 SASR 573, 576; Todd (1982) 2 NSWLR 517).

13. In the present case, the learned sentencing judge was confronted with the applicant who, as we have said, had been in custody from about 20 December until 20 March, as a result of sentences imposed by the Townsville Magistrates court and thereafter in custody on remand for the two present offences.

14. Here we have the applicant committing a series of offences. In our respectful view, the learned sentencing judge should have been referred to Mill v The Queen and the totality principle. Effectively, one must ask oneself - what was the appropriate sentence for all the offences which were apparently committed in December 1997? Little is known of the conduct that led to the custody in which he was kept between 20 December 1997 and 20 March 1998, but it all seems to be based on breaches connected with his bail obligations. Effectively, this applicant has been sentenced to about 21 months imprisonment, and in our respectful view when the totality principle is applied such a sentence was manifestly excessive. The applicant, despite his unenviable prior criminal history has no prior convictions for offences of violence against a person or persons. The two present offences were out of character for him and alcohol played some part in them. These matters strongly suggest that the sentences of 18 months were in themselves excessive. Not only that, but the applicant was not recommended as eligible for parole before the statutory half way mark i.e. 9 months of the 18 months. One result of this is that in respect of this group of offences committed in about December 1997, this applicant will have served approximately 12 months continuously before being eligible for parole. This aspect of the case makes it abundantly clear that the 18 months sentences were manifestly excessive.

15. We would grant leave to appeal against the sentences, allow the appeal, and set aside the sentences of 18 months imposed on 27 July 1998. In lieu, we would on each charge sentence the applicant to 1 years imprisonment and declare that the applicant be eligible for consideration for parole from today. We would further declare the applicant had spent 129 days in pre-sentence custody between 20 March 1998 and 27 July 1998, and further declare that that time of 129 days be time already served under the sentences.