R v Packer; ex parte

[1998] QCA 173

COURT OF APPEAL

[1998] QCA 173

DAVIES JA
McPHERSON JA
DERRINGTON J

CA No 62 of 1998

THE QUEEN

v.

JEFFREY GRAHAM PACKER  Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND             Appellant

BRISBANE

..DATE 06/05/98

JUDGMENT

DAVIES JA:  This is an appeal by the Attorney-General against a wholly suspended sentence of 18 months imprisonment effectively imposed for one count of assault occasioning bodily harm whilst armed, one of assault occasioning bodily harm and one of common assault, all committed on 16 August 1997.

The respondent is 28 years of age having been born on 3 March 1970.  He has quite a substantial, though in some respects minor, criminal history which includes, however, a number of prior convictions for assault.  In 1991 he was convicted of assaulting police and fined $120.  He was convicted in the Coolangatta Magistrates Court on 24 November 1994 of aggravated assault on a female for which he was fined $750 and ordered to pay compensation of $250.  And he was convicted in the Hervey Bay Magistrates Court on 19 March 1997 of assault occasioning bodily for which he was fined $1,000 and ordered to pay compensation of $500.

In the early hours of the morning of 16 August 1997 the respondent and some companions arrived at a suburban home where a party was still in progress for school students.  It had commenced after a school concert.  The respondent was not invited to the party but his girlfriend, who was then only in grade 10, had been.  She had been present but had left prior to his arrival.  Notwithstanding being told this the respondent kept calling out for her and said that he was not leaving until he spoke to her.  He was abusive and aggressive.

His first victim was a 17 year old school boy whom he struck on the head a number of times with a stubby of beer which he was carrying.  The injury to the boy's head required three sutures. 

A scuffle then broke out between one of the respondent's companions and another boy whose mother was the hostess of the party.  She then came to her son's aid and attempted to pull the person assaulting him away from him.  Someone then punched her with a closed fist in the stomach causing her to double up with pain and then threw a plastic chair at her.  The respondent pleaded guilty to these offences on the basis that he was a party under s.8 of the Criminal Code.  The host of the party, who had been asleep when these events commenced, was awoken by the commotion, came outside and ordered the respondent to leave.  The respondent then head-butted him in the mouth area causing some of his teeth to loosen, one of which needed to be replaced.  This victim also had lacerations to his gums.  The respondent continued to abuse people at the party for some time and eventually left. 

When questioned by police several days later the respondent denied knowledge of the events I have described, said he was intoxicated that night and said he could not remember what had happened. 

He pleaded guilty to these offences though it does not appear to have been a prompt plea.  The learned sentencing Judge, however, rightly took the plea into account as a mitigating factor.

There is no doubt, on the facts which I have related so far, that a sentence greater than 18 months could have been imposed but, as appears to have been conceded by the appellant today, a sentence of 18 months imprisonment was within the appropriate range.  The main complaint of the Attorney is against the order wholly suspending the term of imprisonment.  There were a number of related factors which, according to the learned sentencing Judge, justified this course and his Honour thought that these factors placed before him showed that the respondent was making a genuine effort to turn his life around, as his Honour put it.  Part of the material relevant to this, and in fact it appears a main part of the material which his Honour relied on, was a relationship which he had formed with a young woman, presumably the young woman who was at the party on the night I have described, and that that woman had become pregnant as a result of that relationship.  However, it should be mentioned that, as I have already said, this girl was only in grade 10 and unsurprisingly her parents were opposed to the relationship with the respondent.  The other factor referred to by his Honour as indicating some turn around in his attitude to life was that he was in employment and was caring for and supporting the young woman.  Those factors alone, of course, could not have justified the course which the learned sentencing Judge took. 

Of much greater importance however was assistance which the respondent gave to the police put before the Court pursuant to s.13A of the Penalties and Sentences Act 1992. That information was received in closed Court and has not been disclosed although counsel today had the opportunity of perusing that information. In consequence of providing that assistance the respondent, it appears, has had to move house on two occasions in order to avoid coming into contact with certain people and they have threatened him and his family. As a result of that it appears he attempted suicide and, according to a report which was received by his Honour, was admitted as an in-patient of a psychiatric hospital and was still in a state of anxiety and fear because of the threats of violence in retribution for his offer to give evidence. I have viewed this material also and, in my opinion, it justified a substantial reduction in the sentence which would otherwise have been appropriate.

It is not clear to me why the learned sentencing Judge failed to act under s.13A. His Honour said he was aware of that section but said he would not follow the procedures of it but would take into account the matters contained in the documents put before him. In my view it was an appropriate case for the Court to act under s.13A. As this Court has said on more than one occasion a substantial discount should be given where assistance of this kind has been promised. See Thompson (1994) 76 Australian Criminal Reports 75.

It follows from what I have said that his Honour was correct in making a substantial discount to the sentence which would otherwise have been imposed which, as I have said, would have been one of 18 months to two years imprisonment without any early recommendation or suspension such as his Honour imposed but not, in my opinion, one which entitled the respondent in this case to avoid a period of actual custody.  The conduct was so serious and his previous criminal history so bad that notwithstanding the substantial assistance which it appears he has given the overall sentence should have included one which required a term of actual custody.  I would therefore allow the appeal and set aside the sentence imposed below only to the extent of suspending it after a period of four months imprisonment.

McPHERSON JA:  I agree.

DERRINGTON J:  I agree.

McPHERSON JA:  The order of the Court will be that the appeal is allowed, the sentence is varied to the extent of suspending the sentence only after the respondent has served four months of it.  Is that satisfactory?

MR MEREDITH:  Yes, Your Honour.  I ask that a warrant issue.

McPHERSON JA:  Well, the Court will order that a warrant issue.  Do you want it to lie in the registry?

MR HUNTER:  If the Court pleases, for seven days.

McPHERSON JA:  The Court further orders that the warrant lie in the registry for seven days or until further order.

‑‑‑‑‑