R v Yanner

[2003] QCA 427

SUPREME COURT OF QUEENSLAND

CITATION:	R v Yanner [2003] QCA 427
PARTIES:	R v YANNER, Murrandoo Bulanyi Mungabyi (applicant)
FILE NO/S:	CA No 146 of 2003 DC No 06 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Townsville
DELIVERED EX	25 September 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2003
JUDGES:	Davies and Jerrard JJA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where applicant convicted of assault occasioning bodily harm - where sentenced to six months imprisonment wholly suspended for two years - where, at time of conviction, applicant serving wholly suspended sentence of 18 months imprisonment - where learned sentencing judge ordered applicant to serve nine months of this suspended sentence - where criminal history of applicant one of intermittent violence of varying degrees - whether learned sentencing judge erred in exercise of his discretion in requiring the applicant to serve nine months of the wholly suspended sentence
Penalties and Sentences Act 1992 (Qld), s 147
COUNSEL:	M J Byrne QC for applicant M J Copley for respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for respondent

DAVIES JA: On 10 April 2003 the applicant was convicted after a trial by jury of assault occasioning bodily harm on 8 December 2001. He was sentenced to six months imprisonment, wholly suspended for a period of two years. However at the time of his conviction, the applicant was serving a wholly suspended sentence of 18 months imprisonment, imposed for four assaults occasioning bodily harm, one of which had the aggravating circumstance of being committed in company. In respect to those sentences the learned sentencing judge on 10 April 2003, acting pursuant to Part 8 of the Penalties and Sentences Act, ordered that the applicant serve nine months of the suspended sentence. The applicant does not contest the wholly suspended sentence of six months imposed for the offences of which he was convicted on 10 April 2003, but seeks to contest the order by the learned sentencing judge pursuant to s147(1)(c) of the Act, that he serve nine months of his suspended sentence. In order to consider that question it is necessary to say something of the circumstances in which the offences the subject to the now activated suspended sentence were committed and also of the applicant's prior criminal history.

The offences the subject of activated suspended sentence, were committed in May 1997 and the suspended sentences were imposed after a trial on 30 July 1999. They were imposed, as I have already said, for four offences of assault occasioning bodily harm, one of them being in company.

At about the same time as the applicant committed these offences he also, apparently in a separate incident, assaulted police and behaved in a threatening manner for which he was convicted and fined in August 1999. His earlier offences consisted of possession of a weapon in a public place in a manner likely to cause alarm in 1993, failing to take precautions to secure weapons in 1993, wilful and unlawful damage to property in 1995, disturbing the peace on two occasions in 1995 and possession of police property in 1996.

Then in October 1997 he committed a common assault and assaulted and obstructed a police officer in the performance of his duty, for which he was sentenced in 1997. He was convicted of receiving property in 1997, for which he was fined in 1999 and in 2000 he was convicted of wilful damage in 1999.

The assaults the subject of the activated suspended sentence arose out of a suspected theft by another man, Bruce Yanner, and another from the Bourketown Hotel. They were apparently apprehended in the act of stealing some goods from the hotel by a barmaid, Ms Portch, and her husband Mr Rice, who then followed their car to a point where it stopped on a dirt track. An argument then ensued which developed into a minor fight between Mr Rice and Mr Bruce Yanner. Mr Rice and Ms Portch then returned to the hotel and Mr Rice left with a police officer to find the vehicle and recover the stolen property, leaving Ms Portch behind. As she waited there with her children (she and Mr Rice were resident at the hotel) the appellant and Bruce Yanner arrived and started to argue and jostle with her. Mr Rice returned and came to her aid, whereupon the appellant and Bruce Yanner joined in assaulting Mr Rice together. Mr Rice fell to the ground whereupon they each proceeded to kick and punch him including kicks to the throat and face slitting his top lip. When Ms Portch came to her husband's aid, the appellant punched her in the face, causing a laceration and swelling to the eye.

A little time later Mr Wallaston a nurse at the local health clinic, arrived to provide assistance to any injured person, whereupon the appellant approached him aggressively and, when Mr Wallaston explained his presence, the appellant, without warning, punched him in the forehead knocking him to the ground. He later required three stitches to a laceration on his forehead. These events were witnessed by a police officer.

There were further acts of destruction of property by the appellant and his brother, including throwing a 44 gallon drum through the window of the office of the Bourketown Hotel and damaging Mr Rice's car. Another bystander was then assaulted by the appellant who knocked him to the ground a number of times, picked him up and knocked him down again. Even while he was on the ground the appellant punched him at least once to the head. These assaults were all unprovoked.

The sentence which was ultimately imposed by this Court was on an Attorney's appeal, a major difficulty with which, according to the majority view of this Court, arose from unwarranted concessions made by the Crown prosecutor in the Court below conceding, in effect, that a suspended term of imprisonment would have been appropriate. But for that, it is plain that this Court would have imposed a sentence on the appellant which required him to serve a period of actual custody. Indeed the Chief Justice, who dissented, would have imposed a sentence of 18 months suspended after six months, thereby requiring him to serve a period of six months actual custody.

The protracted violence by the appellant on four persons, including innocent bystanders, was described by the majority in this Court as truly an outrageous exhibition. They endorsed the learned sentencing judge's remarks that to attack someone who is coming to render injured persons assistance was really appalling.

Had it not been for the unfortunate concessions wrongly made by counsel for the Crown on the original hearing and the two and a half years which had elapsed since the commission of this appalling conduct, it is plain that the majority of this Court would have imposed a sentence of 18 months imprisonment with either three or six months actual custody to be served.

The assault committed by the appellant on 8 December 2001, the subject of his conviction after a trial on 10 April 2003, was much less serious, as the wholly suspended sentence of six months imprisonment indicates. It consisted of one blow, involving no serious injury to the complainant and in circumstances in which, although there was no legal provocation there was, according to the learned sentencing judge, some “level of provocation” by the complainant. What it does show, however, is that notwithstanding the imposition on him of a suspended sentence the applicant was unable to curb his aggressive instinct.

In the circumstances facing the learned sentencing judge by reason of the commission of this offence during the operational period of the earlier suspended sentence, his Honour was obliged to make an order that the appellant serve the whole of the suspended imprisonment unless he was of the opinion that it would be unjust to do so. His Honour reached that opinion after considering the matters which he was required to consider under s147(3). His Honour thought it was unjust to require the applicant to serve the whole of the suspended sentence, substantially because of the efforts which he had made to improve his conduct since the imposition of that sentence. He had held important positions in the Aboriginal community and, it was said, had much to offer that community. His Honour also took into account the spontaneity of the appellant's conduct on the occasion of the commission of his offence on December 2001.

I do not think it could be said that the learned sentencing judge erred in requiring the applicant to serve part of a sentence suspended in 1999. Indeed, as I have already pointed out, he was fortunate in not having been required to serve part of it when it was first imposed, for it seems that if the Crown prosecutor had not made unwarranted concessions on the sentence hearing, a sentence requiring three to six months to be actually served would have been imposed by this Court.

The question now is whether, in those circumstances, after the commission of a further offence of assault occasioning bodily harm, and balancing against that the applicant's potential for beneficial service in the community, a requirement that he serve nine months of that suspended sentence was manifestly excessive. In considering that question it is necessary to have regard not only to the offence committed on 8 December 2001 but also his assault offences in October 1997.

The totality of the applicant's criminal history from about May 1997 is one of intermittent violence of varying degrees with varying periods in between acts of violence. In those circumstances, notwithstanding the applicant's apparent potential to do good, I cannot be satisfied that the learned sentencing judge erred in the exercise of his discretion in now requiring the applicant to serve nine months of the sentence which was wholly suspended on 30 July 1999. I would therefore dismiss the application for leave to appeal against that order.

JERRARD JA: I agree.

HOLMES J: I agree.

DAVIES JA: The order is as I have indicated.