R v Wilder

[1998] QCA 102

IN THE COURT OF APPEAL	[1998] QCA 102
SUPREME COURT OF QUEENSLAND

C.A. No. 53 of 1998

Brisbane

Before	Pincus JA Davies JA White J
[R v Wilder]

THE QUEEN

v

ANDREW LANCE TIATO WILDER

(Applicant) Appellant

JOINT REASONS FOR JUDGMENT - PINCUS JA and WHITE J

Judgment delivered 22 May 1998

The applicant seeks leave to appeal against the sentence imposed upon him on 2 March 1998 in the District Court at Southport on the ground that it is manifestly excessive. On 2 March 1998 he pleaded guilty to one count of unlawful wounding, one count of assault occasioning bodily harm in company and one count of common assault. On each count he was sentenced to 6 months imprisonment and placed on probation for 3 years. He has no previous criminal history. He spent 9 days in custody prior to being released on bail pending appeal. The applicant was born on 24 October 1979 and at the time the offences were committed on 12 October 1997, he was almost 18.

The difficulty in determining this appeal is to understand the factual bases upon which the applicant was sentenced and upon what substratum of facts he pleaded guilty. Whilst the submissions of the prosecutor and the solicitor for the applicant below refer to a record of interview between the police and the applicant and statements by the complainants and other witnesses, none of this material was placed before the learned sentencing judge. In some circumstances a detailed reference by the prosecution or defence to the contents of such documentary evidence may make it unnecessary to place them before the court. Here, however, the somewhat cryptic references to the contents of the record of interview and the contents of the statements of the complainants provide no useful indication of their actual contents.

This was an offence, according to the applicant and the two complainants, involving two offenders - the applicant and his companion, one Kennedy. Although Kennedy has been charged he declined to give a record of interview and has pleaded not guilty. It is not clear if his committal has been held. The applicant would have it that he was merely a passive participant in the offences, being extremely drunk. Indeed, on such a view, it is of some surprise that he pleaded guilty. But this serves merely to highlight the problem on appeal. In order to demonstrate the difficulty in arriving at a view as to whether the sentence imposed was manifestly excessive, the factual matters which were put before the learned sentencing judge need to be examined and, as we have said, there are some serious gaps.

According to the prosecutor, at about 4 a.m. on 12 October the two complainants, a young man and woman, had left a nightclub in Surfers Paradise and were on their way back to the female complainant’s car on the 2nd level of a car park. They became aware of the applicant and his co-offender behind them. To the complainants they appeared to be very drunk and were aggressive and argumentative. They asked the male complainant for a cigarette and apparently became annoyed when he hesitated and demanded that he take a drink from a bottle of bourbon from which they were drinking. The prosecutor said “I think, on my instructions, [the male complainant] took a drink in order to be sociable” [R.3], and explained to the two offenders that he had to go home. His female companion was already in the car and had started it. As the male complainant turned to get in he was hit twice over the head with the, by then, empty bottle.

The prosecutor said:

“As Your Honour will appreciate, the witnesses’ statements are somewhat confused. It’s not entirely clear which of the two actually struck these blows, but it’s obviously the Crown’s case that they were in company and in concert. The now accused certainly was associated with that action, whether he actually struck those two blows or not.” [R.3].

He went on to tell the learned sentencing judge that the male complainant fell to the ground “in what was already a pool of blood” and was kicked several times as he lay on the ground. The female complainant got out of the car and began screaming for help. She was pushed to the ground by one of the two and the offenders ran off down the access ramp. She chased after them still screaming and was heard by two security guards who alerted foot patrol police.

An ambulance conveyed the injured complainant to the Gold Coast hospital where he was found to have sustained a base fracture to the skull, various lacerations to his face, right torso and back which required stitches. At sentence the prosecutor had no up to date information about the condition of the complainant, only a statement taken some 4 or 5 days after the attack in which he complained of considerable pain, short term memory loss, confusion and slurred speech. The prognosis from the hospital was that there would be no long term sequelae.

The applicant returned to the night club where it was suggested by his associates that he exchange his shirt with a friend in order, the Crown submitted, not to be identified. The shirt had blood stains on it which the Crown submitted were likely to be those of the injured complainant (although this was not known to the exchangee at the time).

The applicant was eventually identified following enquiries. He took part in an interview with the police and, according to the prosecutor below, “in fairness to him, he did make a full confession. He also named his co-offender and he claimed - and it won’t come as a surprise to Your Honour - that they’d both been drunk at the time”. [R.4].

The prosecutor then went on to discuss appropriate sentences without further referring to

the facts.

The applicant’s solicitor told the learned sentencing judge that the applicant was in the company of his older brother and youths who had travelled to the Gold Coast from Brisbane for a night out.

“... it appears, from what was put to my client in his interview, that his co-accused had stolen the bottle of bourbon from behind the bar in the night club, and that it had been taken outside where it had been passed around to my client, the other males that were there, and the co-accused.”[R.6].

Further reference was made to the record of interview. The solicitor said,

“He, quite probably, told the police that his memory was very bad but he does have no
recollection of even having seen the bottle on that evening.

What is abundantly clear from all of the other witnesses whose versions were put to my client in his interview, that he was grossly affected by alcohol.” [Ibid].

The defence solicitor told the learned sentencing judge that the applicant was going to the car park because he had been told by his brother that he needed to be put to sleep in the car and the co-accused was nominated to take him there. He said “he wasn’t acting violently or aggressively. He was on the other end of the scale. He was so groggy and affected that he was almost asleep on his feet” [Ibid]. He then went on to tell the court inconsistently with what had been said by the prosecutor:

“He was taken by the other person, he says - and these are the versions of the complainants, that they were asked for a cigarette by the co-accused, and things escalated from there. I believe that what the complainant himself, or the complainant’s girl friend, has identified from a photo board that it was the co-offender and not my client who at least at the initial stage was holding the bottle, and it appears that my client did not have the bottle, nor did he smash it over the head of the complainant.” [Ibid].

He submitted that the applicant had made no attempt in his record of interview to disassociate himself from the unlawful conduct. His Honour asked whether the victims could say that both the young men were involved in the kicking. The prosecutor answered that the male complainant was by then rapidly becoming unconscious but that his girlfriend “was, I think” running around the front of the car, saw blows being landed “and she is unable to say clearly - I have looked at the statement very carefully - she says that as far as she believes they were both involved, but I think it would be unfair to the accused to positively state that he was actually kicking, but he was certainly, in the Crown’s submissions, associated with it and I think his actions later indicated some sort of guilty conscience; exchanging the shirt.” [R.7].

In his sentencing remarks the learned sentencing judge said:

“When interviewed by the police, you confessed your involvement and the Crown put your involvement on the basis of your being present and acting in concert with your co- offender.” [R.9].

His Honour indicated that he was sceptical about the applicant’s degree of intoxication because he was alert enough to flee from the scene and to swap his shirt, but made no positive findings as to the applicant’s involvement.

We are of the view that it is simply not possible on that unsatisfactory state of the evidence to appreciate the degree of the applicant’s culpability so that the sentence may be assessed on the merits. This difficulty was conceded by Mr Chowdhury for the Crown, and Mr Donaldson for the applicant and they agreed that the better course might be to remit the matter for re-sentencing. The question then is whether this court has the power to do so. Its general jurisdiction and powers are to be found in ss.8 and 29 of the Supreme Court of Queensland Act 1991. It is empowered to remit a proceeding to a District Court by virtue of Part 5 of that Act. Until 1997 that power was limited to remission to the Trial Division of the Supreme Court. By virtue of s.130 of the Courts Reform Amendment Act 1997, which came into operation in August 1997, the power to remit was extended to a District Court. Section 68(3) as amended provides:

“If a proceeding is pending before the Court of Appeal, the Court of Appeal may, on application by a party or of its own motion, order that the whole or a part of the proceeding be remitted to another court for determination (by trial or otherwise) of the proceeding or any question of fact or law arising in the proceeding”.

“Another court” means the Trial Division or a District Court, s.130(7).

“Proceeding” is defined in s.2 of the Supreme Court of Queensland Act 1991 to mean:

“... a proceeding in a court (whether or not between parties), and includes -

(a)	an incidental proceeding in the course of, or in connection with, a proceeding; and
(b)	an appeal or stated case.”

The power is not confined to civil proceedings. What is presently before the court is an application for leave to appeal against sentence, s.668D(1)(c) of the Criminal Code, not the appeal itself but it is “a proceeding in court” and in our view encompasses the present application.

In R v Evans ex parte Attorney-General of Queensland (C.A. No. 172 of 1994, 4 August 1994) this court set aside a sentence imposed in the Trial Division after the receipt of fresh evidence on an Attorney-General’s appeal and remitted the proceedings to the Trial Division for determination of the proper sentence. That, of course, being an Attorney-General’s appeal was not an application for leave to appeal. The court considered its jurisdiction to remit to the District Court on an application for leave to appeal against sentence in R v T (C.A. No. 181 of 1994, 5 September 1994). That decision was prior to the recent amendments to s.68 of the Supreme Court of Queensland Act 1991. McPherson JA considered that the court had jurisdiction under the general law or by virtue of s.47(4) of the Judicial Review Act 1991 to set aside a sentence imposed below and remit the matter back to the District Court. Ambrose J concluded that the proper basis of the exercise of the power to remit was Part 5 of the Judicial Review Act while Pincus JA thought that the desired result of remitter could be achieved by a combination of the powers conferred by O.70, rr.11, 12, and 25 RSC. In light of the amendment to s.68 of the Supreme Court of Queensland Act it is not, we think, necessary to follow that difficult path. In any event the same issues do not arise here. The sentencing court below in that case had proceeded to sentence a juvenile to detention without obtaining a report of the kind contemplated by s.164 of the Juvenile Justice Act 1992. The decision under consideration was therefore a nullity and the power to quash lay in certiorari under the general law, or pursuant to s.28 of the District Court Act 1967 or by Part 5 of the Judicial Review Act. We are of the view that this court should set aside the sentence imposed below and may remit the proceedings to the District Court at Southport, for hearing and determination of the proper sentence to be imposed on the applicant based upon findings as to his participation in and culpability for the unlawful acts to which he pleaded guilty.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 22 May 1998

I agree with the orders proposed by Pincus J.A. and White J. that the sentence imposed be set aside and that this matter be remitted to the District Court of Southport for hearing and determination of the proper sentence to be imposed and with her reasons for that conclusion. Not only was this a case in which, because of the absence of findings of fact by the learned sentencing Judge, this Court is unable to assess the merits of an appeal against the sentence imposed; it is also one in which, on the facts placed before him, the learned sentencing Judge was unable to determine what was an appropriate sentence and perhaps even whether a plea of guilty ought to be accepted. This was because there were a number of inconsistent versions of the facts placed before him with no rational basis for selecting one rather than any of the others. The possibilities included:

1.          that the applicant was actively involved in kicking the male complainant whilst he was on the ground and may or may not have been actively involved in the other offences;

2.          that he was not actively involved in any of the offences but, by encouraging his co- offender to commit them, was a party to all or some of them; and

3.          that he was too drunk to be involved either by physical participation or encouragement in any of these offences, in which case, of course, the learned judge ought not to have accepted pleas of guilty.

As to the first offence the solicitor for the applicant below submitted that he did not have the bottle or smash it over the head of the complainant but it is unclear whether there was any factual basis for this submission; and this does not appear to have been accepted by the prosecutor who said that it was not clear whether the applicant or his co-accused did this. As to the second, the prosecutor was unwilling to assert that the applicant was actively involved in kicking the male complainant when he was on the ground; yet it appears that there may have been some evidence that he was. Perhaps the learned sentencing Judge accepted the submission for the applicant in respect of the first offence and the prosecutor's apparent concession in respect of the second. But that is not clear. His Honour made no findings as to the applicant's involvement in these or the third offence.

So it is unclear what facts formed the basis of the sentencing Judge's sentence and what facts could have formed that basis in the absence of some agreement.

On a sentencing hearing where an accused has pleaded guilty the parties should try to agree on the facts on which he or she has so pleaded; and where they cannot agree they should make clear their area of disagreement and tender such evidence as may enable the sentencing judge to make findings of fact. And a sentencing Judge, in imposing sentence, should state the facts upon which that sentence is imposed. Unless that is done the person sentenced cannot know whether he or she has received a fair sentence and an appellate court cannot determine that question.