R v White

[1995] QCA 480

IN THE COURT OF APPEAL [1995] QCA 480

SUPREME COURT OF QUEENSLAND
Brisbane

C.A. No. 92 of 1995

[R. v. White]

T H E Q U E E N

v.

MARTIN THOMAS WHITE

Applicant

Pincus J.A.
de Jersey J.

Ambrose J.

Judgment delivered : 26/05/1995

Joint Reasons for Judgment of de Jersey J. and Ambrose J;

s	eparate concurring reasons of Pincus J.A.
Order:	Adjourn the further hearing of the application to a date to be fixed to enable a pre-sentence report to be furnished to this Court.
CATCHWORDS:	CRIMINAL LAW - Leave to appeal against sentence - incorrect to impose a penalty based upon criminal activity arguably constituting elements of offences with which the applicant had not been charged and which attract significantly higher penalties than the charge upon which the applicant was convicted - applicant had an alcohol problem - insufficient material to determine whether feasible to make a probation order.
Counsel:	Mr A.C. Smith for the applicant. Mr B. Campbell for the respondent.
Solicitors:	Legal Aid Office for the applicant

Director of Public Prosecutions for

the respondent

Hearing date: 26 April 1995

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 26/05/1995

I have read the joint reasons of de Jersey J and Ambrose J.

I agree that the further hearing of the application should be

adjourned as set out in those reasons.

The sentencing judge remarked, in the course of explaining the basis on which the applicant was to be sentenced.

"I am satisfied you produced that knife outside the hotel when you were involved in a fight with one security officer. You endeavoured to stab that security officer in the stomach. The publican grabbed your arm and stopped you. I have no doubt that within one or two seconds the security officer would have been stabbed in the stomach and seriously injured".

The charge was that the applicant without lawful occasion went armed in public in such a manner as to cause fear to one Pulford, the security officer mentioned in the remarks I have quoted. The applicant was only charged with going armed so as to cause Pulford fear; he was not charged with attempting unlawfully to wound Pulford or with assaulting him. It has been said (Teremoana (1990) 54 S.A.S.R. 30 at 38) that some uncharged offences of lesser gravity may be taken into account as part of the circumstances surrounding the offence of which an accused has been convicted; an example might be an assault on a victim of a rape, after its completion. But the general rule is that the offender cannot be punished for offences of which he has not been convicted: De Simoni (1981) 147 C.L.R. 383 at 389; see also Kingswell (1985) 159 C.L.R. 264 at 278. It does not seem to me possible to justify taking into account, on sentencing on a charge of going armed so as to cause fear, an allegation that the offender actually used the weapon with which he was armed, in an attempt to wound; that must surely be, if relied on by the Crown, charged and proved as a distinct offence. The alleged attempted stabbing would I think be a more serious matter than merely having the knife in possession so as to cause fear. If one ignores the alleged attempted stabbing, then in my view the sentence imposed appears to be excessive, considering the youth and relatively minor criminal record of the applicant. As I have said, I agree with the order proposed.

R EASONS FOR JUDGMENT - de JERSEY J AND AMBROSE J.

Judgment Delivered: 26/05/1995
This is an application for leave to appeal against a sentence of six months imprisonment imposed upon the applicant in the District Court at Dalby when he was convicted upon trial of a charge of going armed in public in such a manner as to cause fear to one Steven Neal Pulford.

At the time of the commission of the offence the applicant was just under 19 years of age. Between October 1992 and August 1994 he was convicted of a number of offences. On one he was granted probation for 9 months and ordered to make restitution at $650. A number of fines were imposed and fine option orders were made permitting him to perform community service work in lieu of paying those fines.

The circumstances of the offence may be stated shortly.
Prior to the time of the offence the applicant had been barred
from entry to a hotel in Dalby. Shortly prior to the commission
of the offence he arrived at the hotel premises with a knife in
his pocket. A brawl erupted in the hotel premises in which some
of his acquaintances were involved; he entered the premises and
was evicted by hotel security officers and it was after his
eviction that he produced a knife from his pocket. He said he
brandished the knife in an attempt to frighten off one or more
of the hotel security men who were out on the road near him.

Shortly after the knife was produced he was overpowered and

disarmed.
In imposing sentence the learned sentencing judge made the following observations:

"I have little doubt you intended to cause trouble. You entered the hotel. You were evicted by the hotel security officers. I am satisfied no more force was used than was reasonably necessary to evict you from the premises. I am satisfied you produced that knife outside the hotel when you were involved in a fight with one security officer. You endeavoured to stab that security officer in the stomach. The publican grabbed your arm and stopped you. I have no doubt that within one or two seconds the security officer would have been stabbed in the stomach and seriously injured."

The learned sentencing judge referred to the previous convictions of the applicant and expressed the view that he had shown no remorse at any time with respect to the offence of which he had been convicted. He observed that the applicant had previously been treated with leniency and he had been given every chance to change his ways; he had been given the benefit of probation and community service and he had continued to offend "and in a very serious way". His Honour referred to the applicant's "alcohol problem" and observed:

"I note that about ninety per cent of the crimes of violence coming before the Criminal Courts are alcohol related. Unless you overcome your alcohol problem you will spend the next 20 years or so of your life drifting in and out of gaol. That will be a terrible waste of your life.

No civilised society can tolerate the use of a knife to settle fisticuffs. If you use a knife again you will go to gaol for a very long period of time. You would be wise never to carry a knife again."

Counsel for the applicant in making submissions upon his sentence informed the Court that the applicant had a drinking problem and that the various offences which he had committed had occurred as a result of that problem. It was observed that he drank out of boredom. He was then unemployed. He played touch football and had represented the Darling Downs Premiers in 1990, 1991 and 1992. He had represented South Western Rugby League and had represented Marumba at a touch carnival held at Cherbourg. He was a member of the Marumba Aboriginal Housing Co-operative and Goodna Medical Service. He had worked seasonally as a labourer and had trained as a clerical assistant with the Marumba Aboriginal Housing Co-operative. His father had been with Dalby Town Council for 14 years and had worked as a community worker for 6 years. His mother was employed as a shop assistant. The Court was informed that he had had some counselling in relation to his drug and alcohol problem at the Dalby Base Hospital and:

"it is proposed that he will get further drug and alcohol rehabilitation starting whenever he can get out at Cherbourg. There is an elder of the community out there, Berte Button, who is a counsellor in drug and alcohol rehabilitation and he has offered to put him up in his home and try and break the back of this drinking problem that he has."

Reference was also made to support which the applicant received from a field officer with the WAKKA WAKKA Legal Aboriginal Corporation and a reference from that man was placed before the Court.

It was perhaps the "assistance" given by this Corporation to the applicant that led to the Crown's contention that:

"the prisoner has shown no remorse at all in relation to this offence. All of the witnesses or the majority of the witnesses called in this trial were called at the committal proceedings and cross-examined."

Counsel for the applicant suggested that he might be given:

"a suspended sentence because if you do he can then go and undertake alcohol counselling at Cherbourg and that would perhaps in the long run serve his rehabilitation better than anything, whereas the prison sentence will punish him for the offence that he has committed."

Unfortunately, no effort appears to have been made to obtain a pre-sentence report before the applicant was sentenced to imprisonment. He had already undergone probation for a period of nine months nearly two years earlier. Whether that order was conditional upon his receiving treatment and assistance for his problems with alcohol did not emerge. Whether he had been assessed as needing any particular treatment that would have been available to him either at Dalby or Cherbourg, was also not shown.

Although assertions were made from the bar table that Mr Button, a counsellor in drug and alcohol rehabilitation at Cherbourg had indicated that he was willing to give assistance to the applicant with a view to his overcoming his dependence upon alcohol, it does not seem that any firm proposal was made to achieve this result.

The applicant seems to have come from a good family involved to some extent in community affairs. He had worked seasonally and had received clerical training at the Marumba Aboriginal Housing Co-operative and Goodna Medical Service.

In our view it is a great pity in this case that more effort was not made to place before the sentencing judge material from Mr Button as to the facilities available at Cherbourg to assist the applicant in overcoming his problems with alcohol which seem to have led to various outbursts of anti-social activity over a period of a little under two years from the time of his commission of the first recorded offence.
It was open to the learned sentencing judge to infer from the evidence that indeed the applicant had after consuming a good deal of alcohol gone up to the hotel, from which he had been barred between 12.30 a.m. and 1 a.m. on the Saturday morning in question, with a knife in his pocket. If he was not looking for trouble, he was certainly not taking any steps to avoid becoming involved in trouble which might develop in the circumstances.
It was open upon the evidence for the learned sentencing judge to conclude that not merely was Mr Pulford put in fear because the applicant went armed with a knife in public but that indeed he was put in fear by an effort made by the applicant, which nearly succeeded, to stab Mr Pulford in the stomach with that knife.

It must be kept in mind however that the applicant was not charged with any offence of which an attempt to stab or wound Mr Pulford with the knife was an element. It would have been quite wrong for the learned sentencing judge to impose a sentence on the applicant designed to punish him for attempting to stab Mr Pulford. A sentencing judge may not take into account circumstances of aggravation which would have warranted conviction of a more serious offence; R v. Boney Ex Parte A.G. (1986) 1 Qd R 190. That is not to say of course that the

circumstances in which the knife was produced or exhibited by the applicant in public was not relevant in determining what was the appropriate penalty to be imposed. It was not permissible, however, to take into account that the applicant attempted to commit an offence with the knife with which he was never charged when fixing upon a penalty.

We suspect from his sentencing remarks, to which we have referred, that the learned sentencing judge gave weight to what use the applicant made or attempted to make of the knife at the time of the commission of the offence of which he was convicted; if he did not, the remarks would be irrelevant to the sentence imposed.

The applicant in this case was charged under s.69 of the Criminal Code with going armed in public so as to cause fear. This offence is a misdemeanour punishable by up to two years imprisonment.
He was not charged with nor convicted of attempting to stab the security officer or with "using" the knife to settle fisticuffs.
On the basis that intending to stab to Pulford, the applicant attempted to do so, he could have been charged with common assault and under the provisions of the Code, if found guilty, would have been liable to imprisonment for one year. The Crown may have proceeded summarily on a charge of assault had it so desired. It did not do so.

Under s.323 of the Code, upon conviction of a charge of unlawful wounding the applicant would have been liable to imprisonment for a period of seven years and it follows from the provisions of s.537 that conviction of an attempt to unlawfully wound have attracted a penalty of imprisonment for three and a half years.

Under s.320, conviction upon a charge of unlawfully doing grievous bodily harm attracts a penalty of 14 years imprisonment. Conviction of the applicant of an attempt unlawfully do grievous bodily harm would, under s.535, have attracted a penalty of seven years imprisonment.

The elements of the offence of which the applicant was convicted are not elements of the offences of unlawful wounding or doing grievous bodily harm.
It is clear that the maximum penalties for the offences of attempting unlawfully to wound or attempting unlawfully to do grievous bodily harm greatly exceed the maximum penalty for going armed in public to cause fear.
In our view, it would be quite wrong to impose a penalty upon the applicant based upon criminal activity arguably constituting elements of an offence or offences with which he had not been charged and which attract significantly higher penalties than the charge upon which he was convicted.

On the material contained in the record and placed before this Court upon the application for leave to appeal against sentence it is not possible to determine with any confidence whether it would be useful to make a probation order conditional upon the applicant receiving examination, treatment, counselling and advice from either or both the Dalby Base Hospital or the Drug and Alcohol Rehabilitation Unit at Cherbourg with which Mr Berte Button is a counsellor. It emerges from the rather imprecise information contained in the record that there may be an elder or perhaps elders in the Cherbourg Aboriginal community who may be able to exercise some influence over the applicant with the object of assisting him to overcome his problems with alcohol which have led to his anti- social conduct, to which we have referred, and which ultimately have led to his conviction of the offence for which he was sentenced in the Court below. As well as "Aboriginal elders" at Cherbourg reference was made by counsel to "a specialist facility" at that place from which the applicant might benefit.

The applicant spent 10 days in custody before obtaining bail on 27 February 1995 pending the determination of this application. He is still on bail. It is clear he has made efforts to obtain assistance for his alcohol dependence problem, either at Cherbourg or at the Wunjuada Aboriginal Corporation for Alcoholism and Drug Dependence Services at Murgon, since he was released on bail. Upon this application a report from Wunjuada Aboriginal Corporation for Alcoholism and Drug Dependence Services dated 12 April 1995 was tendered indicating that he had been admitted to a programme conducted by that body on 6 March 1995. The bail granted on 27 February 1995 was conditional upon the applicant admitting himself within 24 hours to the Cherbourg Drug and Alcohol Rehabilitation Centre and residing with and being subject to the directions of Mr Berte Button.

These are all matters which in our view ought properly to be investigated to enable this Court to determine whether it is feasible to make a probation order conditional upon the applicant obtaining assistance for his alcohol dependence at Dalby Base Hospital and/or "the special facility" at Cherbourg or at some other centre at Murgon or elsewhere, and whether and to what extent he might reasonably be placed under an obligation to take counselling and directions from Mr Berte Button or other persons connected with the Cherbourg Aboriginal community.

No effort seems to have been made to place any of this material before the learned sentencing judge. Indeed, it was not suggested on his behalf that the applicant might benefit from the making of a probation order which would assist him to overcome his dependence upon alcohol. What was suggested by counsel for the applicant was that he might be given "a suspended sentence, because if you do he can then go and undertake alcohol counselling at Cherbourg". In our view, if upon the facts of this case it is appropriate to make a probation order, it would not really be appropriate to make an order for imprisonment whether or not that imprisonment were to be suspended.

In our view, this is a case which, on material in the record, required serious consideration to be given to the making of a probation order of the sort to which we have referred. Additional material from Wunjuada Aboriginal Corporation for Alcoholism and Drug Dependence Services not available to the sentencing judge confirms the need for such consideration. No consideration appears to have been given to the making of such an order which, indeed, was not even sought.

From the sentencing remarks of the learned sentencing judge, it seems that he may have given undue weight to the inference he drew that the applicant attempted to stab Mr Pulford in the stomach and that the offence involved "the use of a knife to settle fisticuffs". Neither of those matters were elements of the offence of which he was convicted and it would not be right to have regard to them when imposing a sentence of imprisonment on a young man not quite 19 years of age convicted of going armed in public to cause fear and not even charged with, let alone convicted of, attempting to stab somebody in the stomach with that knife or attempting to use that knife to settle fisticuffs. If that was the gravamen of the anti-social behaviour for which the Crown sought punishment of the applicant, it ought to have proceeded upon other charges in which an attempt to unlawfully wound or to do grievous bodily harm was an element.

For our part, we would adjourn the further hearing of this application for leave to appeal against sentence and request the preparation of a pre-sentence report touching on the matters to which we have referred concerning possible counselling and assistance available to the applicant from Dalby Base Hospital and/or from the "special facility" at Cherbourg and/or from other facilities for the treatment of alcohol dependent persons. It would also be of assistance if a report could be obtained concerning what assistance the applicant might receive from Mr Button and/or other "elders" in the Cherbourg Aboriginal community and in particular the nature of any directions and counselling which might reasonably be given by Mr Button or other persons connected with that "special facility" at Cherbourg and/or by elders in that Aboriginal community, compliance with which might be of assistance to the applicant.

Should it be thought desirable to make a probation order conditional upon the applicant complying with conditions appropriate to his obtaining assistance from Dalby Base Hospital and/or from some other facility or facilities or from elders in the Cherbourg Aboriginal settlement the applicant would be required to consent to the making of an order subject to those conditions.

We would adjourn the further hearing of the application to a date to be fixed to enable a pre-sentence report to be furnished to this Court as expeditiously as possible.

REASONS FOR FURTHER ORDER - THE COURT

Judgment delivered 26/05/1995

F urther Order delivered 04/08/1995

Two sets of reasons were delivered in this application on 26 May 1995 and it was ordered that the further hearing be adjourned to a date to be fixed to enable a pre-sentence report to be furnished. This has now occurred and we have read the report. Although it is unnecessary to summarise its contents the report reinforces the view which we have been inclined to adopt, that there should be a probation order; we also propose to make a community service order. Each of these is subject to the applicant’s agreement and of course it is necessary to comply with ss. 95 and 105 of the Penalties and Sentences Act 1992 by explaining or causing to be explained to the applicant the matters set out in those sections.

We also note that each order requires specification of the place at and the time within which the applicant must report to an authorised commission officer; since we are not sure of the applicant’s present place of residence this will be dealt with when judgment is delivered.

The orders are as follows:-

1.    Grant leave to appeal.

2.   Allow the appeal and set aside the sentence of imprisonment imposed.

3.   With the agreement of the applicant make the following orders:

(i) That the applicant serve a period of three years probation on the terms set out in s.93 of the Penalties and Sentences Act 1992 with the following special conditions:

That the appellant undergo such medical, psychological, psychiatric and other examination, treatment, counselling and advice as may reasonably be required by his authorised commission officer to assist him to overcome his dependency upon and/or his disposition to consume alcohol to the extent that it results in his anti-social behaviour and conduct.

Such treatment, counselling and advice to include, if thought necessary by the authorised commission officer, treatment:

(a)  as an in-patient or an out-patient at "Wunjuada" Aboriginal Corporation for Alcoholism and Drug Dependent Service, Cherbourg; and/or

(b)  at the residence of Mr Button at 5 Farm Street, Cherbourg or at such other place as he may appoint; or

(c)  at such other place as may reasonably be specified and required by the authorised commission officer having regard to the appellant's place of residence or work from time to time during the period of his probation.

(ii) That the applicant report to the authorised commission officer at Cherbourg within 72 hours of delivery of this judgment.

(iii) that a community service order be made requiring performance of 240 hours community service and subject to the requirement set out in s.103 of the Act.

It is recommended that if feasible such community service work be of a kind which will, inter alia, support any psychological or other counselling designed to assist the appellant to overcome his tendency to engage in anti- social activity as a consequence of consuming alcohol.