R v S

[2003] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION:	R v S [2003] QCA 25
PARTIES:	R v S (applicant/appellant)
FILE NO/S:	CA No 419 of 2002 DC No 11 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bowen
DELIVERED EX TEMPORE ON:	7 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2003
JUDGES:	Davies and Williams JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1.    Application for leave to appeal against sentence       granted 2.    Appeal allowed only to the extent of:       (a)   setting aside the sentence of 18 months detention              and in lieu thereof inserting a sentence of three              months;       (b)  setting aside the order recording a conviction
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER - where applicant convicted of doing grievous bodily harm - where applicant sentenced to 18 months detention accompanied by an immediate release order for three months - where applicant had no previous criminal history, expressed remorse and proffered apology - whether sentence was manifestly excessive
COUNSEL:	K M McGinness for applicant/appellant D L Meredith for respondent
SOLICITORS:	Legal Aid Queensland for applicant/appellant Director of Public Prosecutions (Queensland) for respondent

DAVIES JA:  The applicant pleaded guilty in the District Court on 19 August 2002 to doing grievous bodily harm to Brenton Jefferey Locke on 26 October 2001. 

On 12 November 2002, he was sentenced to 18 months detention accompanied by an immediate release order pursuant to section 176 of the Juvenile Justice Act for a period of three months.  Compensation of $500 was ordered to be paid. 

At the time this offence was committed, the applicant was 15 years of age having been born on 15 November 1985.  The complainant was 17. 

The complainant was a former boyfriend of the applicant's girlfriend, Rebecca Candish.  It seems that shortly after Ms Candish ended the relationship with the complainant there commenced some animosity between the complainant and the applicant in which discussion of a fight occurred.  According to the applicant's version of events, over a period prior to the commission of the offence, he was harassed and provoked by the complainant and his friends picking on him and calling him names because he would not fight the complainant.  Amongst other things, he was called a "chicken", he said.  His father said that, in the Samoan culture from which the family came, to be called that was shameful.  On the other hand, the complainant was heard to say on one occasion, "I don’t want to fight."  And the complainant's cousin said that he warned the applicant not to go starting a fight.

On the evening of the offence, the complainant emerged from nightclub premises at approximately 2 a.m. and started walking towards the service station intending to ring a cab.  Two cars pulled up at the roadside and the applicant and another person approached the complainant.  There was a fight between the applicant and the complainant, it seems initiated by the applicant, in which the applicant punched the complainant a number of times in the head including to his jaw which resulted in two fractures of his jaw requiring the insertion of plates.  The medical procedure was successful and the complainant has made a full recovery.

The applicant pleaded guilty immediately, expressed remorse and proffered an apology to the complainant.  At the time of sentencing, he was undergoing an apprenticeship in Brisbane and favourable references from his employer and members of his extended family were tendered.  He had no previous criminal history.

There is no doubt that the offence was a serious one or that the fight, such as it was, was initiated by the applicant.  On the other hand, on the applicant's version of events, there had been some conduct by the complainant which, though it by no means justified what occurred, is some explanation for it in a person as young as the applicant.

When one accepts the complete absence of prior convictions, the applicant's extreme youth and good history and the commission of this isolated offence in the circumstances outlined, I think that a non custodial sentence was open.  In those circumstances, on the authorities of this Court a sentence involving custody such as was imposed was manifestly excessive.  Nevertheless, it seems that the applicant has successfully served almost all of the period covered by the immediate release order.  That ends on 12 February and that is next Wednesday, and no good cause can be served now by interfering with that part of the order.

On the other hand, what we can interfere with, consistently with the order which was imposed and the term that has been served, is to interfere with the sentence of 18 months detention which, on any view of the matter, is manifestly excessive.  It also seems plain to me that the learned sentencing judge erred in recording a conviction on one so young in the circumstances which I have related.

I would therefore grant the application and allow the appeal to the extent of setting aside the sentence of 18 months detention and, in lieu, imposing a sentence of three months detention and setting aside the order recording a conviction for this offence.

WILLIAMS JA:  In my view, it was appropriate in this case to impose a sentence of detention coupled with an immediate release order but the period should not have been longer than approximately three months.  Subject to that, I agree with what has been said by Justice Davies and the orders proposed.

CULLINANE J:  I agree with what was said by Justice Davies and with the orders he proposes.

DAVIES JA:  The orders are as I have indicated.

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