Taylor v Commissioner of Police

[2009] QDC 177

[2009] QDC 177

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE EVERSON

No 4 of 2009

MATTHEW JAMES TAYLOR	Appellant
and
COMMISSIONER OF POLICE	Respondent
MACKAY ..DATE 23/06/2009
JUDGMENT

1-1

HIS HONOUR: This is an appeal pursuant to section 222 of the

1

Justices Act in respect of a sentence handed down in the
Magistrates Court at Mackay on 8 January 2009. On that day the appellant was convicted of two counts of contravening a requirement and received a fine of $225 in each instance. He

was also convicted of one count of public nuisance and	10
received a sentence of 18 months probation. In all three instances convictions were recorded.
In the appellant's outline of argument at paragraph 2 it is
stated that the appellant submits that the learned Magistrate	20
imposed penalties that were within range and not manifestly excessive in each of these instances.
However, the appellant was also sentenced for one count of
assault occasioning bodily harm on the same date, in respect	30
of which the learned Magistrate imposed a sentence of three months' imprisonment, suspended after serving one month for an operational period of two years.
It is submitted by the appellant that the learned Magistrate	40
imposed a penalty in this regard that in all the circumstances was manifestly excessive.
The offending arose out of a scuffle, which occurred on 20
December 2008 in the Mackay CBD area, which began near the	50

corner of Wood and Victoria Streets. The factual basis for
the sentencing is materially set out in the transcript, which
is Exhibit "PWM1" to the affidavit of Mr Moore, filed on 22
June 2009. It is stated that at 2.30 a.m. on this date in 1-2 JUDGMENT 60

1

this area, police noted a fight starting and that in an effort
to stop the fight police restrained the defendant until calm
could be restored to the area. Police were then approached by
the complainant, who advised them that he had been assaulted

by the defendant. He stated to police that he and others had	10
been walking along the CBD area when some of them became
involved in an altercation. The complainant had assisted in subduing the altercation and as the parties were dispersing, the defendant approached the complainant and struck him with a
closed fist to the left side of his face. When asked by the	20
complainant why he had struck him, the defendant replied, "Because you got in my way. I have had seven years of boxing, I can hit anyone I like."
The complainant was not seriously injured as a consequence of	30
being struck by the appellant. It is stated at page 6 of the transcript that police observed a small cut above the complainant's left eye brow, and there was minor bleeding and some swelling to the general area.
40
The learned Magistrate was particularly scathing of the words
the appellant used in the course of his striking of the
complainant. Whilst taking into account mitigating factors,
including the fact that the complainant did not have a
criminal history involving any offences of violence, that he	50

had given up drinking, was remorseful and that he intended to
go to university in the near future, he none the less
expressed the view that a period of imprisonment was
necessary, having described the complainant in the course of 1-3 JUDGMENT 60

1

the hearing as a thug, earlier at page 6 of the transcript, he

stated "All you are is a thug".

It is clear that the complainant's criminal history, which is

exhibited to the defendant's outline of argument, whilst	10
containing a number of entries for what might be termed minor street offences, does not contain any entries for offences of violence of the type the subject of the sentencing remarks by the learned Magistrate.
20
The appellant is a young man. He was born on 26 February
1986, and has an impressive work history as an underground miner. He informed the Court in the course of the hearing that he was intending to commence a university degree in coal
mine operations and management this year. The learned	30
Magistrate none the less took the view that the behaviour of
the appellant on the evening in question and in particular the
words he used contemporaneously with his attack on the
complainant, were such that a period of imprisonment was
called for. At page 3 of his decision he stated "The	40
authorities in this indicate, and there's some minority decisions of the Court of Appeal - say that the deterrent affect of violence on the streets of Queensland is - must not be underestimated." 23062009 D.1 T(4)11-12/HS(MKY) M/T MACK04 (Everson DCJ)	50

1-4 JUDGMENT 60

He concluded his sentencing remarks in the following terms:-	1
"Now, I hope the message gets through to you and other like- minded thugs like you, Mr Taylor, that want to go around punching people in the streets for no reason. This is not on and if they persist in it, they go to prison just like you

10

have."

Although the Court of Appeal has made some comments about
street violence in the context of much more serious offending,

I am unaware of any decisions of the Court of Appeal which

20

suggest that it is necessary that an actual period of
imprisonment be served for offending of the type the subject
of this appeal. Indeed, the only authorities which I have
been provided with are R v. Monro [2002] QCA483 and more

significantly, R v. Coutts [2008] QCA380. They may be seen as

30

authority suggesting otherwise, at least to the extent that
for offending of this severity a period of actual time served
in prison is not condign punishment taking into account
mitigating factors such as those that were before the learned

Magistrate.

40

The comments made by the appellant were inflammatory and stupid. However, he was heavily intoxicated at the time and the comments did not accord with his personal circumstances, including his criminal history. The numerous mitigating

50

factors including the appellant's age, work history and absence of criminal history with respect to offences of violence are such that I am of the view that a sentence of

1-5 JUDGMENT 60

23062009 D.1 T(4)11-12/HS(MKY) M/T MACK04 (Everson DCJ)

actual imprisonment such as that imposed by the learned	1
Magistrate was manifestly excessive.
On hearing an appeal of this type, section 225 of the Justices Act provides that I may confirm, set aside or vary the appeal

10

order or make any other order in the matter I consider just.

I have been provided with a presentence custody certificate
which is Exhibit 1 before me, which discloses that between 8

January 2009 and 12 January 2009 the appellant served four

20

days one hour in custody. I am informed that this was solely as a consequence of the sentence which is the subject of this appeal.

The authorities to which I have been taken, and in particular

30

Coutts, are suggestive of the proposition that despite the
fact that because this was an offence of violence and section
9(2)(a) of the Penalties and Sentences Act does not apply, a
non-custodial sentence is a more appropriate outcome.

Although the offending for which I am now sentencing the

40

appellant occurred in the context of a period of heavy
drinking and after a scuffle on the streets of Mackay, I am of
the view that there are certain aspects to this offending

which make a sentence of probation the most desirable outcome.

50

It is important that the appellant modifies his behaviour and the attitudes which underpin it if he is going to reach his full potential as a useful member of the community. It is for 23062009 D.1 T(4)11-12/HS(MKY) M/T MACK04 (Everson DCJ) 1-6 JUDGMENT 60

this reason that I am of the view that probation is the most	1
appropriate sentencing course.
I take it, Ms Hartigan, that the appellant is happy to consent to a probation order.

10

MS HARTIGAN: Yes, your Honour.
HIS HONOUR: All right. Just bear with me.
MS HARTIGAN: My instructions are that he has been going well
on his probation order that was in fact imposed by the learned

Magistrate for the other offences also, your Honour.

20

HIS HONOUR: All right. The appropriate duration of probation order in the circumstances would appear to be 18 months. The requirements of a probation order are as follows:-

Mr Taylor, stand up. 30

You must not commit another offence during the period of the order which will be 18 months.

You must report to an authorised Corrective Services	40
officer in Mackay within two business days of today.
You must report to and receive visits from an authorised Corrective Services officer as directed by the officer.
50
You must take part in counselling and satisfactorily attend other programmes as directed by the Court or an

1-7 JUDGMENT 60

23062009 D.1 T(4)11-12/HS(MKY) M/T MACK04 (Everson DCJ)

authorised Corrective Services officer during the period	1
of the order.
You must notify an authorised Corrective Services officer of every change in your place of residence or employment

10

within two business days after the change happens.

You must not leave or stay out of Queensland without the permission of an authorised Corrective Services officer.

20

You must comply with every reasonable direction of an authorised Corrective Services officer and you must submit to counselling and other programmes directed by your authorised Community Corrections officer in respect of alcohol and anger management.

30

I need to tell you that the Penalties and Sentences Act, section 95 provides that this order may be amended or revoked on application by you or an authorised Corrective Services officer or the Director of Public Prosecutions. Do you

40

consent to this order on those terms?

DEFENDANT: Yes, your Honour.

50

1-8 JUDGMENT 60

23062009 D.1 T(4)11-12/HS(MKY) M/T MACK04 (Everson DCJ)

HIS HONOUR: All right. The learned Magistrate also was of	1
the view that a conviction should be recorded, as noted above, with respect to the other penalties which arose out of the same incident. It has not been demonstrated to me that it is inappropriate to record a conviction in respect of this

10

offence and therefore a conviction is also recorded.

-----

20

30

40

50

1-9 JUDGMENT 60