R v Tapuaka

[1994] QCA 346

[1994] QCA 346

COURT OF APPEAL
FITZGERALD P
DAVIES JA

WILLIAMS J

CA No 192 of 1994
THE QUEEN
v.

SIONE TAPUAKA Applicant

BRISBANE
..DATE 03/08/94
DAVIES JA: On 20 May 1994 the applicant pleaded guilty to
having unlawfully done grievous bodily harm to Gusto David
Zettel on 14 May 1993. He was sentenced for that offence to
two and a half years' imprisonment, with a recommendation that
he be eligible for parole after serving 12 months of that
sentence. The appeal is against that sentence on the ground
that it is manifestly excessive.

The applicant was born on 13 May 1975. Consequently, when he committed this offence, he had only just turned 18 and when he was sentenced, he had only just turned 19. He had no previous convictions of any kind. It will therefore be necessary for this Court to consider, and apply, section 9.4 of the Penalties and Sentences Act 1992, which provides, in effect, that a Court may impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted only if the Court, having considered all other available sentences and taken into account the desirability of not imprisoning a first offender, if satisfied that no other sentence is appropriate in all the circumstances of the case.

The offence consisted of a vicious and totally unprovoked assault on a 19-year-old male student. At about 11.00 a.m. on the day of the offence, he was walking through a pedestrian subway on his way to Oxley Railway Station, where he intended to catch a train to the city.

As he walked through the subway, he became aware of the

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presence of two people who appeared to be following him.

Without warning, the applicant set upon him, punching him several times in the head. When the complainant asked him to stop because he thought by then he had lost a tooth, the applicant continued to strike him, including hitting him, after the complainant had been felled.

The applicant apparently told the police that he only desisted from hitting the complainant when his companion pulled him away. He had by this time struck the complainant in and about the face ten or eleven times with his closed fists.

The applicant was quite a large young man, the complainant of small stature. The applicant was in company and the offence occurred in a public place. In the assault, the complainant suffered a double fracture of his jaw which required open surgical reduction and the insertion of titanium plates.

He also, of course, had quite an amount of bruising and contusions. The main injury caused continuing pain and interfered with his studies. He was so frightened, subsequently, of meeting the applicant again, that he no longer used Oxley Railway Station, at some considerable inconvenience to himself.

Fortunately, the main injury is unlikely to result in any
permanent disability. Although the assault was totally
unprovoked, the learned sentencing Judge was prepared to
sentence on the basis that the applicant may have believed
that he heard the complainant utter some insulting words.
Of course, that cannot excuse the very serious and cowardly
attack upon the complainant, but it is of some relevance to
the appropriateness of the sentence. The applicant, who is of
Tongan race was born in Tonga, but his family lived in New
Zealand shortly after his birth. His father died when he was 10
and a few years later, his mother married his late father's
brother.

Until his stepfather's death in 1992, the applicant's life appears to have been stable and happy. He and his sister came to Australia in 1990 and stayed with relatives in Sydney and then in Brisbane until they were joined by his mother, stepfather, and other siblings, about eight months later.

When his stepfather died, the applicant, as the elder son, was
expected in accordance with Tongan tradition, to assume the
responsibility of the head of the family. He was by then
having trouble with his schooling, due it was thought by his
minister and counsellor, to the death of his stepfather, and its
consequences and to the numerous moves by his family and
consequent changes of school.

He was unable to obtain employment. The applicant was described by his minister - a minister of the Uniting Church of the south side, inner city parish - as a cheerful, responsible and trustworthy person, who became terribly lost between two cultures and from overwhelming expectations from both his Tongan way of life and the pressures of his Australian peer group.

He has also received favourable references from community
workers for whom he has worked voluntarily on worthwhile
projects since the commission of this offence. However, the
reference from the minister refers to a previous violent
outburst and one of the other references notes that he is
quick to anger. The applicant pleaded guilty at the earliest
opportunity.

It should also be mentioned in his favour that he appears to have some prospects of obtaining remunerative employment. Notwithstanding the provisions of section 9.4 of the Penalties and Sentences Act, I think that the offence in the present case was so serious as to justify the imposition of a term of imprisonment.

However, in view of the applicant's previous unblemished record, his extreme youth, and the favourable references and prospects of work, both indicating some prospect of rehabilitation, I think that the term of imprisonment should be a short one, followed by a lengthy term of probation, if the applicant consents to the imposition of a probation order.

In that event, I would grant the application, allow the
appeal, set aside the sentence imposed below, and substitute
for it a sentence of six months' imprisonment and order that at
the end of that term, the applicant be released under the
supervision of an authorised Commission officer for the
remainder of a period of three years, commencing from
20 May 1994.
THE PRESIDENT: I agree. Offences like these raise a variety
of competing factors. I mention some only. From the point of
view of the victim and his family, retribution is called for.
The general community also thinks that punishment is required
for mindless violence, yet imprisonment imposed on a young first
offender can irredeemably damage or even destroy his life
and adversely to the public interest, perhaps turn a
young person who can be rehabilitated, into a long term
criminal.

In balancing all the factors, and giving effect to the plain legislative intent manifested by the Penalties and Sentences Act, the Court strives to avoid imprisonment for young first offenders and where a sentence of imprisonment is imposed, no longer period is given than can be avoided and cannot be avoided.

There is obviously scope for differences in opinion as to what
is appropriate in individual cases. However, I agree with
Mr Justice Davies as to the outcome for this application and
with his reasons for his decision.

WILLIAMS J: I am persuaded for the reasons given by Mr Justice Davies and the President that the term of imprisonment here was manifestly excessive, but I have come to that conclusion not without some hesitation. In my view, the salient features of the case are that it was a serious, unprovoked assault in a public place in broad daylight, and the applicant persisted with the assault after he had knocked the complainant to the ground.

The serious nature of the assault could well justify a sentence such as was imposed in the Court below. However, given the applicant's background more particularly referred to by Mr Justice Davies, I am prepared to agree with the orders proposed.

THE PRESIDENT: What's the position in relation to consent to probation, Mr Rafter?

MR RAFTER: The terms of the probation order have been explained to the applicant; he understands them, and would consent to a probation order being made.

THE PRESIDENT: I order that the application be granted and the appeal allowed, the sentence of imprisonment imposed below be set aside and in lieu, a sentence of imprisonment for six months, commencing from 20 May 1994 and that the applicant be admitted to probation for a term of three years on the usual terms and conditions. The Court so orders.

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