R v Rowe and Talbott

[1996] QCA 243

IN THE COURT OF APPEAL	[1996] QCA 243
SUPREME COURT OF QUEENSLAND
Brisbane

C.A. No. 149 of 1996
C.A. No. 152 of 1996

[R. v. Rowe & Talbott]

T H E Q U E E N

v.

ELI ROWE

AND:

DERREK DOUGLAS TALBOTT

(Applicants) Appellants

Williams J
Ambrose J

Byrne J

Judgment delivered 23/07/1996

Separate reasons for judgment of Williams, Ambrose and Byrne JJ. All concurring as to the orders made.

1.Application for leave to appeal allowed. Appeal allowed. The sentence passed set

aside.

2.In lieu upon each of the applicants order a sentence of 12 months imprisonment.

Conviction to be recorded in each case.

3.In each case an intensive correction order be made in respect of the period of imprisonment imposed. As a requirement of the intensive correction orders each offender (a) not consume alcohol during the period of the order; and (b) pay to the complainant compensation for personal injury he suffered as the result of the assault committed upon him fixed in the sum of $3,000.

CATCHWORDS:	CRIMINAL LAW - assault - Penalties and Sentences Act 1992 Part 6 - suspended sentences - intensive correction order condition on abstinence from alcohol and payment of compensation more appropriate than suspended sentence.
Counsel:	Mr A. Rafter for the applicant Rowe
Ms K. McGinness for the applicant Talbott
Mr M. Byrne Q.C. for the respondent
Solicitors:	Mr D. McMillan for the applicant Rowe
Legal Aid Office for the applicant Talbott
Director of Public Prosecutions for respondent
Hearing date:	11 July 1996

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered the 23rd day of July 1996

I have had the advantage of reading the reasons for judgment prepared by Ambrose J; I agree with what he has said and the orders he proposes.

REASONS FOR JUDGMENT - B.W. AMBROSE J

Judgment delivered: 23/07/1996 guilty on 23 April 1996 to assault occasioning bodily harm whilst in company. At the time of the offence each of the applicants was 17 years of age.

The victim of their assault was a school boy aged 16 years.

The applicants, the complainant and other young people attended a birthday party at a sporting club. All connected with the assault had consumed alcohol. Indeed it seems on the material that the complainant had consumed so much alcohol that his physical capacities were very significantly affected.

During the course of the evening the complainant met a girl who had attended the party with her brother. The brother and the girl were known to the applicants. The complainant was not known to them prior to that evening.

In the course of the evening the complainant and the girl to whom I have referred moved some distance away from the social activities of the party to a relatively secluded area where they became involved in consensual amorous activities. There is a dispute between the complainant and the girl involved as to the extent to which those activities progressed. The learned sentencing judge found it impossible to resolve the dispute on the material before him. In my view, having regard to the evidence generally, the resolution of that dispute in any event is unnecessary in determining the culpability of the applicants for the assault which they jointly perpetrated on the complainant.

The complainant and the girl had been together for a significant period of time when the two applicants approached that area where they were lying on the grass. The girl then moved away from the complainant, leaving him sitting on the ground in the position where they had been lying together in the course of their amorous activities. It seems clear that the complainant at this time was severely affected by the liquor he had consumed. Both applicants then proceeded to assault the complainant by punching and kicking him about the head and body, particularly in the vicinity of his kidneys. The assault was a particularly brutal one and the injuries were described by the doctor as indicating "one of the worst assault cases I guess I saw in my three months stint down in accident and emergency". One of the complainant's teeth was kicked out and three others badly loosened. He needed suturing of a laceration of his chin. He spent several days in hospital and his kidney injury prevented him from participating in sporting activities for three months. The complainant, in spite of counselling, has been psychologically affected. He is fearful and apprehensive about what might happen to him and he often has nightmares.

The learned sentencing judge proceeded on the basis that the complainant was simply sitting on the ground when he was brutally and violently assaulted with fists and feet. He did not strike or attempt to strike a blow. The assault was apparently perpetrated without warning. The evidence indicates that in fact the complainant probably lost consciousness, awaking in the night time in a then deserted area in a confused state. He made his way home without really being aware that he had been assaulted. It was not until next morning when he saw very bad injuries to his face and body which led to his being taken to hospital for treatment that he realised that he had been assaulted.

After the applicants had finished assaulting the complainant, they walked away laughing and said to the girl with whom the complainant had spent some time "We bashed him. That is what people get if they fuck around with girls".

It was strenuously contended before the learned sentencing judge that the age of the two applicants was such that it was inappropriate to impose upon them a custodial sentence. The learned sentencing judge appears from his sentencing remarks to have given careful consideration to this contention and in the course of his sentencing remarks observed:

"I regard this as a case of serious violence. One should not have exclusive regard to the personal considerations of the offenders, important though they obviously are. The impact of the crime on the victim and his family is not an unimportant consideration also. The difficulty with these cases is one has to balance the various interests involved and I would be the first to concede that the balancing act is enormously difficult."

His Honour then observed that there had been a hardening of attitude by the courts relating to offences of serious personal violence. He expressed the view that the public needs protection from violent offenders and that in the cases of violence the court must keep at the forefront of its mind the principle of general deterrence.

The sentencing judge observed that on the facts of the case the applicants pursued a common purpose assisting each other in the serious assault of the complainant and that it would not be productive to attempt to determine the precise participation of each of them in the infliction of the serious injuries suffered by the complainant. He rejected suggestions made that the complainant had offered any violence to either of the applicants and indeed referred to evidence that the applicant Rowe had received a black eye from a fight that he had had with somebody else earlier in the evening.

The girl with whom the complainant spent time prior to the assault stated that she did not make any complaint to either of the applicants of anything that the complainant had done or attempted to do prior to the assault. On the other hand, both applicants maintained that the principal reason they had for assaulting the complainant was to make retribution for his conduct with the girl. The learned trial judge specifically rejected the excuse of retribution offered by the applicants and found that the girl had made no complaint concerning the complainant before the applicants assaulted him.

The learned sentencing judge imposed upon each of the applicants a sentence of 18 months imprisonment to be suspended after serving three months ordering that the suspension remain operational for a period of two years. He recorded a conviction in each case.

The applicants served two days imprisonment before each was released upon

In the course of an interview he gave to investigating police officers the
applicant Talbott said that he had hit the complainant in the face and then "in the gut a
couple of times." He said he just kicked him. It could have been around the shoulder
and neck area and around his ribs. He conceded that he had kicked the complainant
while he was lying on the ground. He said that after he and Rowe had ceased kicking
and hitting the complainant they just went home leaving him on the ground. He said
they did not check the complainant and were unable to say whether he was breathing.
He said he could not say anything of the appearance of the complainant they left
lying on the ground because it was dark. They did not know if he was bleeding. He
said that his companion, the applicant Rowe told him that he had checked the
complainant's pulse, though he did not know why his pulse had been checked.
It is clear therefore on the material before the sentencing judge that the
applicants without any warning or any explanation set upon the complainant when
he was sitting on the ground in a very intoxicated condition, punching and kicking
him about the head and body until he became insensible. One of them apparently
checked the pulse of the complainant but then they both went home together leaving
the complainant alone in the dark apparently unconscious.
In my view it is difficult to conclude in the circumstances that the learned
sentencing judge erred in the exercise of his discretion to impose a sentence other than
a community based one. In spite of the age and apparent good character of the
applicants, the assault they committed upon the complainant was unprovoked and
brutal. They abandoned him unconscious in a darkened area on the edge of a playing
field, quite late at night when for all they knew he may have been critically injured
and in need of urgent medical attention. The only explanation they gave to the girl
with whom the complainant was earlier involved as they walked away laughing as he
lay insensible on the grass in the dark was that "We bashed him. That is what people
get if they fuck around with girls". The only real alternative to the suspended
sentence imposed upon the applicants by the learned sentencing judge in my view
was the imposition of an intensive correction order pursuant to Part 6 of the Penalties
and Sentences Act 1992.
It seems clear from the sentencing remarks and the transcript of the
proceedings upon sentence that the making of such an order was not canvassed before
the learned sentencing judge. Had it been canvassed it seems to me likely that he
would have given serious consideration to making such an order. Under s.112 of the
Act, such an order may be made only if a term of imprisonment of not more than one
year is imposed.

bail pending outcome of this appeal. must serve the imprisonment "by way of intensive correction in the community and not in a prison".

The general requirements of an intensive correction order are set forth in s.114 ages and the likelihood that in their immaturity and lack of adult supervision at the time they succumbed to the effects of the alcohol which they had consumed, I have come to the conclusion that a term of imprisonment of one year accompanied by an intensive correction order for each of the applicants would avoid the dangers inherent in requiring them to serve terms of three months in custody before the balance 15 months of the terms imposed are suspended. Neither of the applicants has any criminal antecedents and the prospects for their development as gainfully occupied law abiding members of society could only be lessened by their incarceration for a period of three months in prison where they would inevitably be subjected to pressures to maintain and develop anti-social attitudes by some of the persons with whom they would come into contact in that environment. of the Act. Under s.114(1)(c) a person in respect of whom the order is made must report to
and receive visits from an authorised commission officer at least twice in each week
that the order is in force and under (d) must take part in counselling and satisfactorily
attend other programs as directed during the period of the order and under (e) must
perform in a satisfactory way such community service that an authorised commission
officer directs during the period of the order.
Those obligations however are subject to s.114(2) which provides that an
authorised commission officer must not direct the offender to attend programs or to
perform community service for more than 12 hours in any one week.

Under s.113(2) of the Act a term of imprisonment for 12 months with an intensive correction order will not be subject to remission.

If up to 12 hours per week for each of 52 weeks be devoted to receiving counselling and the performance of community service, it means that during that 12 month period each applicant must spend up to 624 hours receiving counselling and performing community service work as required. That is the equivalent of 15.6 forty hour weeks.

In my view it is likely that such a sentence would impose a significant punishment on each applicant and be of significantly more benefit in his rehabilitation than the imposition of a simple custodial sentence which would involve imprisonment for three months with a suspension of the balance 15 months without any counselling or other supervised activity directed to his making recompense for the offence to which he pleaded guilty.

Under s.115(1)(b) of the Act an intensive correction order may require that the applicants not consume alcohol during the period of the order and under 1(e) that they pay compensation for the personal injury suffered by the complainant.

Of course the making of such an order under s.117 is conditional upon each of

Under s.119(2) an intensive correction order may be revoked under s.120(1).
Under ss.126(4) and 127 of the Act the court is given wide powers to enforce
compliance with an intensive correction order should an offender fail to comply with
the obligations imposed by it.
Were it not for the availability of an intensive correction order on the facts of
the present case, I would take the view that it could not be said that the learned
sentencing judge erred in the exercise of his sentencing discretion.
However, having regard to the availability of an intensive correction order and
keeping in mind the youth of the applicants and their previous good history, I have
come to the conclusion that the failure to draw the attention of the learned sentencing
judge to the availability of an intensive correction order on the facts of this case
resulted in his overlooking the suitability of such a penalty.

the applicants agreeing to it being made. correction order to operate during that period of time necessitates the recording of a conviction.

I would allow the application for leave to appeal, allow the appeal and set aside the sentence passed.

In lieu of that sentence I would impose upon each of the applicants a sentence of 12 months imprisonment.

In each case I would make an intensive correction order in respect of the period

I would impose as a requirement of the intensive correction orders that each
offender (a) not consume alcohol during the period of the order; and (b) pay to the
complainant compensation for personal injury he suffered as the result of the assault
committed upon him fixed in the sum of $3,000.
It is clear from the record of the sentencing proceedings that the complainant
then intended to apply for compensation for the personal injury he suffered at the
hands of the applicants. It is clear of course that any compensation for personal injury
paid by the applicants to the complainant pursuant to a requirement of an intensive
correction order under s.115(1)(e) would be taken into account should any further
assessment be made.
I would order that the compensation to be paid by each of the applicants for
personal injury suffered by the complainant as the result of the offence they
committed upon him be paid to the Sheriff of this Court who is to receive it for the
benefit of and to pay it to the complainant Lake Rennison Howell.
I would make the intensive correction order subject to the special requirements
(a) and (b) to which I have referred, conditional upon each of the applicants agreeing
to the order being in the terms indicated and agreeing also to comply with such an
order. Counsel for each applicant indicated that he would consent to the making of
such an order, subject however to the amount of compensation ordered to be paid. I
would therefore make the order proposed conditional upon each of the applicants
agreeing in writing within one week to the making of such order and to his
compliance with it.

of imprisonment imposed. 1996. Having regard to the constraint contained in s.114(2) of the Penalties and Sentences Act and having regard to the fact that only two days were spent in custody pursuant to that sentence before the applicants were released on bail pending the outcome of their application for leave to appeal against it, I would impose a sentence to operate from today so that there will be an operational period of 52 weeks during which the general requirements of the intensive correction order referred to in s.114 of the Act may operate.

REASONS FOR JUDGMENT - BYRNE J

Judgment delivered: 23/07/1996

In each case I would record a conviction.

I agree with Ambrose J.