R v Thacker

[1996] QCA 326

IN THE COURT OF APPEAL	[1996] QCA 326
SUPREME COURT OF QUEENSLAND

C.A. No. 269 of 1996

Brisbane

[R. v. Thacker]

THE QUEEN

v.

GLENN THACKER

(Applicant) Appellant

Davies J.A. Pincus J.A. Thomas J.

Judgment delivered 06/09/1996
Judgment of the Court.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. SENTENCES IMPOSED AND ORDERS MADE BELOW SET ASIDE. SENTENCE OF EIGHTEEN MONTHS IMPRISONMENT IMPOSED FOR ASSAULT OCCASIONING BODILY HARM WHILST ARMED WITH AN OFFENSIVE WEAPON. SENTENCE OF FOUR MONTHS IMPRISONMENT IMPOSED FOR ASSAULT OCCASIONING BODILY HARM. SENTENCE OF ONE MONTH'S IMPRISONMENT IMPOSED FOR ASSAULT. ALL SENTENCES TO BE CONCURRENT, BUT TO BE CUMULATIVE UPON SENTENCES WHICH THE APPELLANT WAS THEN REQUIRED TO SERVE WHICH, IN TOTAL, AMOUNTED TO SIX MONTHS AND THREE DAYS. ELIGIBILITY DATE FOR PAROLE IN RESPECT OF ALL SENTENCES FIXED AS 9 FEBRUARY 1997. THE APPELLANT TO PAY COMPENSATION OF $1,000 TO MICHAEL TEECE AND $300 TO WAYNE TEECE WITHIN TWO YEARS, IN DEFAULT ONE MONTH'S IMPRISONMENT.

CRIMINAL LAW - application for leave to appeal against sentence - three errors in sentencing below - applicant not given an opportunity to be heard on question of sentence - failure to take into account the fact that sentences would be cumulative on those which the applicant was already serving and consequent failure to fix non-parole period by reference to total term of imprisonment - default period imposed in respect of payment of fines greater than that permitted by s.182A Penalties and Sentences Act 1992.

Counsel:	Applicant/Appellant appeared on own behalf Mr. W. Clark for the respondent
Solicitors:	Applicant/Appellant appeared on own behalf Queensland Director of Public Prosecutions for the respondent
Hearing Date:	29 August 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 6th day of September 1996

The appellant was convicted in the Magistrates Court on 21 May last of assault, assault occasioning bodily harm and assault occasioning bodily harm whilst armed with an offensive weapon all on 15 June 1995. On the first of these he was sentenced by the imposition of a fine of $200, in default six months imprisonment. On the second he was sentenced to four months imprisonment with a recommendation for parole after one month, and on the third he was sentenced to 18 months imprisonment with a recommendation that he be eligible for parole after nine months. In addition he was ordered to pay compensation totalling $1,300 within two years, in default six months imprisonment cumulative upon the other sentences.

He appeals against his convictions and seeks leave to appeal against his sentences. His grounds of appeal against his conviction are that the Magistrate erred on a number of points of law thus hampering his right to a fair trial, that there is a fair and reasonable belief that provocation occurred, that the Crown failed to call a material witness Nicole Flavell and that the evidence of a witness Anna O'Gorman should not have been admitted.

The events giving rise to the alleged commission of offences occurred at Indooroopilly Shopping Town on the afternoon of 15 June 1995. The case before the learned Magistrate, both as to the prima facie proof of the offences and as to the defence of provocation, depended entirely upon her findings of credit. Each of a number of eye witnesses to the relevant events of that afternoon gave evidence which was generally both internally consistent and consistent with that of the others but which contradicted the evidence of the appellant. It is not surprising that in those circumstances the learned Magistrate accepted the evidence of those witnesses and rejected that of the appellant. The effect of their evidence, taken together, was as follows.

The appellant created a disturbance in the Mall of the Shopping Town by shouting abuse and using threatening language to some female students. They complained to security staff and he was requested to leave. He left but almost immediately returned and behaved in much the same way. Another group of students then notified a passing teacher and she caused another member of the security staff to be called. Whilst that teacher was talking to that security guard, Wayne Teece, the appellant approached the group and asked aggressively who it was who had complained about him. The security guard then motioned the appellant to leave the store and as they left together the witnesses saw the appellant elbow Mr. Teece in the ribs by a substantial blow from his left arm. Teece grabbed his stomach and fell to the floor but managed to call one of his colleagues on his two-way radio. The blow to Mr. Teece's ribs constituted the offence of the assault.

The appellant claimed that he was provoked into this assault by Teece asking him to leave the Mall and hitting him in the back of the head. His evidence that Teece hit him was contradicted by that of independent eye witnesses and was disbelieved.

The appellant was then escorted to a trolley-minding centre where it was intended to call the police. Whilst Wayne Teece was attempting to ring the police the appellant punched him in the nose with his left fist causing blood to flow onto his shirt. This constituted the offence of assault occasioning bodily harm.

After a "scuffle" the appellant was then placed in a chair but seized an electric fan heater from a shelf, held it above his head and brought it down onto the forehead of another security guard, Michael Teece. This constituted the assault occasioning bodily harm whilst armed with an offensive weapon. This officer later received medical treatment, experienced nausea and continuing headaches, required medical treatment, including some injections of pethidine and lost some days work. When apprehended by the police the appellant claimed that he had picked up the fan to defend himself as he was then being beaten by the guards. His evidence as to being beaten was contradicted by witnesses whom the Magistrate believed. He also said that he was provoked by the sudden arrival of a third security officer and by the way in which the officer looked at him. This claim was, in our view, rightly rejected by the learned Magistrate.

It follows from what we have already said that there is no substance in the defence of provocation. The Magistrate was entitled to accept the evidence of the other witnesses in preference to that of the appellant.

During the course of a trial of these charges before another Magistrate the appellant absconded requiring the commencement of the trial anew. The appellant complains that initially he was not provided at the trial, with a copy of the transcript of evidence of the earlier aborted trial and that, when he was provided with it, he was limited by the learned Magistrate in his cross-examination of witnesses. The first of these complaints is correct. However the appellant was, during the course of the hearing, provided with a copy of the transcript of the earlier part heard trial and invited by the learned Magistrate to consider whether he wished to have any of the witnesses who had already given evidence recalled. He exercised his right to have some witnesses recalled and there is not the slightest indication that any injustice occurred in the way in which he was allowed to examine those witnesses.

Nor do the grounds of appeal with respect to the failure to call or the calling of a witness have any substance. The evidence of the witness Ms. O'Gorman was of only marginal relevance but it had no prejudicial value and it assisted in giving a complete picture of the whole incident. On the other hand the evidence of Ms. Flavell, had she been called, would have been of less relevance than that of Ms. O'Gorman. Certainly it would not have assisted the appellant.

There is no substance in this appeal and it should be dismissed.
As to sentence the appellant is a 34 year old man with a number of previous convictions

including two of assault one of them occasioning bodily harm. He has undergone a number of prison sentences though none, in recent years, were either for serious offences or for long periods of imprisonment.

As the learned Magistrate pointed out the assault with the fan was of a particularly vicious kind. All assaults were totally unprovoked and against persons charged with maintaining the peace in a busy shopping centre.

There are no mitigating circumstances either in the commission of the offences or in the personal history of the appellant. Moreover he has demonstrated no remorse for his conduct. We were referred to a number of comparable cases by counsel for the respondent. These demonstrate, in our view, that the sentence of 18 months imposed for the most serious of the offences was appropriate for that offence.

However in imposing the sentences which she did the learned Magistrate made a number of errors. The first one was in not giving the appellant an opportunity to be heard on the question of sentence. This alone would have been sufficient to justify setting aside the sentences which she imposed. Secondly she failed to take into account that these sentences would be cumulative upon those which the appellant was then serving and that consequently she was required to fix a non-parole period by reference to the total term of imprisonment. And thirdly the default period which the learned Magistrate imposed in respect of the fine was greater than that permitted by s.182A of the Penalties and Sentences Act 1992. Those matters require this Court to set aside the sentences and orders made below and to resentence the appellant.

We have already said that the sentence of 18 months imprisonment for the offence of assault occasioning bodily harm whilst armed with an offensive weapon was, in the circumstances of this case, an appropriate sentence. It is one which we would also impose. Similarly we think that the sentence of four months imprisonment for the assault occasioning bodily harm is the correct sentence and that is the one which we would impose for that offence. For the offence of assault we would impose a term of one month's imprisonment. All of those sentences should be concurrent. They will however be cumulative upon sentences which the appellant was then required to serve which, in total, amounted to six months and three days. The first of these earlier sentences, one of four months imprisonment, was imposed on 9 February 1996. As a result of the sentences which we would now impose the appellant would be required to serve a term of imprisonment of a little over two years from 9 February 1996. We would therefore fix as the eligibility date for parole in respect of all sentences 9 February 1997. As it happens, that is a little less than nine months from the date on which the sentences in this case were imposed.

We would also make compensation orders of $1,000 to Michael Teece and $300 to Wayne Teece, to be paid within two years, in default one month's imprisonment.