R v White
[1995] QCA 198
•26/05/1995
IN THE COURT OF APPEAL
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; separate 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
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
C.A. No. 92 of 1995
Before : Pincus J.A.
de Jersey J.
Ambrose J.
[R. v. White]
T H E Q U E E N
v.
MARTIN THOMAS WHITE
Applicant
REASONS 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 thisdrinking 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.
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