R v Perkins

[1998] QCA 145

COURT OF APPEAL

[1998] QCA 145

FITZGERALD P
McPHERSON JA
DOWSETT J

CA No 461 of 1997

THE QUEEN

v.

JUSTIN LEWIS PERKINS

BRISBANE

..DATE 25/03/98

JUDGMENT

THE PRESIDENT:  The applicant has applied for leave to appeal against sentences imposed upon him in the District Court at Mt Isa on 11 December 1997.  On the previous day, he had been convicted of two offences.  The indictment charged him with unlawful assault occasioning bodily harm to Colin Edward Rido while in the company of another and unlawfully assaulting Bernard William Griffin and causing him bodily harm.

He was acquitted of assault occasioning bodily harm in company and assault occasioning bodily harm but convicted of assaulting Rido and he was convicted of assaulting Griffin and causing him bodily harm.  He was sentenced to imprisonment for two months for the assault on Rido and imprisonment for three months for the assault on Griffin causing him bodily harm and the sentences were ordered to be served concurrently.  He was imprisoned for eight days prior to his release on bail.

At the time of the offences, the applicant was aged 24 years and, under subsection 9(4) of the Penalties and Sentences Act 1992 in its then form, he was entitled to a non-custodial sentence unless a custodial sentence was the only appropriate sentence in the circumstances.

The applicant, who has no prior criminal history and a good work record, submitted that, at worst, the sentence should have been wholly suspended but that a more appropriate course would have been to order community service.  Reference is made to the decision of this Court in Mahoney, Court of Appeal 132 of 1997 unreported, 5 August 1997, although, in my opinion, that case provides little useful guidance in the present matter.

The assaults of which the applicant was convicted occurred in the early hours of the morning on 9 June 1996 outside a Mt Isa nightclub.  After an argument inside the nightclub between the applicant's brother and a friend of Rido and Griffin, the applicant and Rido became involved and Rido was knocked unconscious or semi-conscious by a security officer employed by the nightclub.  Rido was then carried out of the nightclub by the security officer and placed on the footpath.  Griffin, who was concerned about Rido's condition, bent over him.  The applicant kicked Rido a number of times while Rido was lying on the footpath and at least one of the kicks was to Rido's head.

Further, while Griffin was bent over Rido, the applicant punched Griffin once to the left-side of the face.  Griffin suffered a broken nose, a two or three centimetre laceration along his left nostril and a one to two centimetre laceration across the bridge of his nose.  Deviated right nasal bones had to be repaired and he required a general anaesthetic. He still has problems, or at the time of sentencing, he still had problems breathing at night.

The applicant was plainly entitled to defend the charges and do so successfully in relation to the more serious charges.  However, he concocted a false account as his defence and the sentencing Judge concluded that he had shown no remorse.  He is a well built, fit young man, aware of his own strength who has previously been employed as a security officer.  Griffin was a smaller man and Rido was lying on the footpath, at best, semi-conscious when assaulted. 

The sentencing Judge described the assaults as vicious and cowardly and pointed out that the kick to Rido's head could have had serious consequences.  His Honour also noted the concern in the community about violence in public places often by young men with fighting skills and said that sentences which reflected the community's disapproval and acted as a deterrent were called for.  In His Honour's opinion, no sentence other than imprisonment was appropriate.

It was submitted for the applicant that he was not the instigator of the wider conflict in which he participated and that the assaults appear to have been opportunistic rather than pre-meditated.  It is said that the applicant's offences were out of character which seems consistent with the fact that he has no prior criminal history.  Consolation was also sought in the circumstances that the assault upon Griffin consisted only of a single punch and that the assault upon Rido did not cause him bodily harm.

Reference was made to the applicant's youth and his employment as a fitter and turner. Although it was submitted that the applicant's job would be lost if he was imprisoned and that similar opportunities in Mt Isa are likely to be limited, there was no evidence of these matters. 

The argument for the applicant, shortly stated, was that, in the circumstances, actual imprisonment was not required and that there were lenient sentencing options which, to quote the written outline, "Could have done justice to the case".

I find myself unable to agree. I have read the sentencing Judge's remarks carefully and it is plain that they involve no error in principle. It is also plain that His Honour gave serious consideration to the requirement in subsection 9(4) of the Penalties and Sentences Act that the applicant should not be imprisoned if some sentence other than a custodial sentence was appropriate. I agree with His Honour that such a course was not open to him. Accordingly, I would dismiss the application.

McPHERSON JA:  I agree.

DOWSETT J:  I also agree.

THE PRESIDENT:  The application is refused.

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