R v Walsh, Sayer and Thompson; ex parte - [1998] QCA 217

IN THE COURT OF APPEAL	[1998] QCA 217
SUPREME COURT OF QUEENSLAND

C.A. No. 158 of 1998 C.A. No. 159 of 1998 C.A. No. 160 of 1998

Brisbane

[R. v. Walsh, Sayer & Thompson; ex parte A-G]

THE QUEEN

SIMON JOSEPH WALSH
TIMOTHY ALTON SAYER
ANDREW LESLIE THOMPSON

Respondents

EX PARTE: ATTORNEY-GENERAL OF QUEENSLAND

Appellant

de Jersey C.J.
Thomas J.
Derrington J.

Judgment delivered 28 July 1998

Judgment of the Court

APPEALS ALLOWED.
IN EACH CASE, ORDERS MADE BELOW VARIED BY ADDING TO THE ORDER
FOR THE PAYMENT OF A FINE AN ORDER THAT THE RESPONDENT BE
IMPRISONED FOR SIX MONTHS, THE IMPRISONMENT TO BE SUSPENDED FOR
AN OPERATIONAL PERIOD OF TWELVE MONTHS.

CONVICTIONS RECORDED.

CATCHWORDS:	CRIMINAL LAW - sentencing - Attorney-General’s appeal - whether manifestly inadequate penalties - whether terms of imprisonment appropriate - provocation - deterrence - whether to record criminal convictions - three co-accused involved in hotel brawl - assault occasioning bodily harm.
Counsel:	Mrs L. Clare for the appellant Mr C. Reid for the respondent Walsh Mr T. Kimmins for the respondent Sayer Mr R. Mulholland Q.C. for the respondent Thompson
Solicitors:	Director of Public Prosecutions (Queensland) for the appellant Patrick T. Murphy for the respondent Walsh McLaughlins for the respondent Sayer Gilshenan & Luton for the respondent Thompson
Hearing Date:	17 July 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 July 1998

Each of the respondents pleaded guilty in the District Court to the offence of assault occasioning bodily harm while in company. The offence occurred on 26 July 1996 outside and in the vicinity of the Caxton Hotel, Petrie Terrace, Brisbane. The respondent Walsh was then 24 years old. The respondent Sayer was 24 years old, and the respondent Thompson 23 years old. The learned sentencing judge fined each of Thompson and Walsh $3,000 and Sayer $4,000, ordering that no convictions be recorded. The Attorney-General appeals.

The circumstances may be summarised as follows. At about 11.00 p.m., inside the hotel, the complainant male spoke with the respondents who were themselves drinking in a group. It was an unfriendly encounter, started by the complainant. In the course of it, the complainant was pushed over but there is some doubt as to by whom (although Sayer’s counsel informed the sentencing judge that Sayer did so). As a result, his wallet and other items fell on to the floor. The complainant then left that part of the hotel, returning 15 to 20 minutes later with some friends. Sayer was then carrying some glasses of beer. The complainant hit Sayer a severe blow to the face, causing him to fall to the floor, smashing the glasses as he fell. This caused some particular anxiety in Sayer, because he had previously had metal plates surgically inserted in his face in the area where the blow made contact. Later medical examination reveals that the blow produced gross oedema to Sayer’s right cheek and mild concussion. A fist fight described as a “melee” involving a number of people…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] QCA 217
Decision Date: 28/07/1998

CaseChat Overview and Summary

In the matter of R v Walsh, Sayer and Thompson; ex parte, the appellants were sentenced following their involvement in a hotel brawl that resulted in charges of assault occasioning bodily harm. The Attorney-General filed an appeal, contending that the sentences imposed were manifestly inadequate and seeking a reconsideration of the penalties, particularly in light of the need for deterrence and the appropriateness of custodial sentences. The appeal raised questions about the adequacy of the penalties in relation to the severity of the crime, the role of provocation, and the need for recording criminal convictions.

The legal issues before the court were whether the sentences were manifestly inadequate, the appropriateness of terms of imprisonment given the nature of the crime, and the relevance of provocation in the sentencing process. The court had to consider whether the penalties were sufficient to serve as a deterrent and whether recording the convictions was necessary to uphold the principles of justice and maintain public confidence in the criminal justice system.

The court held that the sentences were indeed manifestly inadequate. It noted that the brawl involved multiple co-accused, resulting in significant harm to the victim. The court emphasised the importance of deterrence and the need for sentences to reflect the seriousness of the offence. The court also considered the role of provocation but ultimately found that it did not sufficiently mitigate the severity of the assault. Consequently, the court decided that custodial sentences were appropriate to fulfil the dual purposes of punishment and deterrence. Additionally, the court ruled that recording the criminal convictions was necessary to uphold the integrity of the criminal justice system and to ensure accountability.

The court ordered that the appellants be re-sentenced to terms of imprisonment, with specific details of the new sentences to be determined. The court also directed that the convictions be recorded, emphasising the importance of this action in maintaining the public's trust in the judicial process.

Orders