R v Smith

[1999] QCA 86

99.86

COURT OF APPEAL

DAVIES JA
PINCUS JA
WHITE J

CA No 480 of 1998

THE QUEEN

v.

DAVID SMITH

BRISBANE

..DATE 22/03/99

JUDGMENT

DAVIES JA:  This was an appeal against conviction and an application to appeal against sentence.

We were told by Mr MacSporran who appears for the appellant that the appeal against conviction is not to proceed and so consequently I would dismiss it. 

The sentence which was imposed was one of six months imprisonment effectively for one offence of assault occasioning bodily harm and one of wilful damage.  However the applicant had on 16 August 1995 been convicted of offences of entering a dwelling house with intent to commit an indictable offence, and assault occasioning bodily harm whilst armed with an offensive weapon and in company for which he had been sentenced to two years imprisonment, the whole of which had been suspended and on the occasion of sentencing the applicant on this occasion, that suspended sentence was activated.

By the time of this offence 20 months of the 24 months operative period of the earlier suspended sentence had expired.  So the effective sentence which the applicant is now serving is a period of two and a half years.

The circumstances of the earlier offence are not clear either from the remarks made by the sentencing Judge in this case or in the outline which was given to the sentencing Judge by the applicant's counsel or indeed from the original sentencing remarks of the sentencing Judge who imposed the suspended sentence in 1995.

However the remarks of the original sentencing Judge indicate that the offences consisted of a home invasion. Apparently it was a mistaken home invasion in the sense that it was on the wrong house, but the complainant was seriously assaulted in his own home and the substantial reason why the sentence was wholly suspended appears to have been that both the applicant and his co-offender who also got a wholly suspended sentence were very young men and neither had any previous convictions.

The applicant is now 26 years of age having been born on 18 October 1972.  Of the offences the subject of the present appeal, the assault is by far the most serious.  The assault occurred on a security officer, commonly called a "bouncer" at a night club in Stanthorpe.

The applicant had attended the night club with his brother and he was, so his counsel said, looking after his brother who had recently broken off with his girlfriend.  The brother however appeared to be intent on going to this night club because he suspected that his girlfriend was there apparently with another man. 

That turned out to be the case and at the night club the brother on a number of occasions had an altercation with the other man and challenged him to a fight which the other man declined.
The brother in fact was in the process of being peacefully escorted from the night club when the applicant then apparently became aggressive and abused the bouncer who was escorting his brother from the night club and a fight then ensued.  The aggression by the applicant included several kicks to the bouncer including when the bouncer was on the ground, at least one kick to his head which required, I think, seven stitches to his head.

Mr MacSporran who appeared for the applicant before us submitted that although a six months term of imprisonment, the effective term imposed for this offence was not too high, that when taken into account with the activation of the suspended sentence, the total term of imprisonment was too high.

The offences in my view which were committed by the applicant both on the first occasion and on the second were quite serious offences and the sentences which were imposed in each case, that is ones of two years and six months imprisonment were appropriate sentences for those offences.

However the factors which justify the learned sentencing Judge on the first occasion in suspending wholly the sentence which he imposed in my view ought to have justified the learned sentencing Judge in the present case in making an order under section 147 of the Penalties and Sentences Act having been satisfied, as I am, that it would be unjust to order that the whole of the suspended sentence be served.

The main factors which in my view justify that order are the absence of any prior criminal conduct on the part of this man, that is prior to the commission of the first of the offences which I have described, his youth - he is still a young man - and the fact that 20 months of the 24 months operational period had expired before these offences occurred.

For all of those reasons, I think that the learned sentencing Judge erred in ordering that the whole of the suspended sentence be served.  I would therefore grant the application and allow the appeal, set aside the sentence imposed below and order that 12 months of the original suspended sentence be served and order that the sentence of six months imprisonment imposed for this offence be served cumulatively upon that activated term of imprisonment.

PINCUS JA:  I agree and would add only that the difficulty in the case appears to be that the information we have relating to the earlier offence for which the applicant received a suspended sentence is rather scanty.

There seems to be one difficulty about suspended sentences, that when the section 147 discretion comes to be exercised, the second Judge, so to speak, may not have as much information as the first Judge had, although he has to take into account the seriousness of the first offence in exercising that discretion.

In the circumstances of the present case, despite the slim information we have, it seems to me clear that the learned primary Judge erred in activating the whole of the suspended sentence and I agree with the order proposed by the presiding Judge and His Honour's reasons.

WHITE J:  I agree with the orders proposed for the reasons that the learned presiding Judge has given.

DAVIES JA:  The orders are as I have indicated.

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