Wilson v. Kite

[2007] QDC 249

DISTRICT COURT OF QUEENSLAND

CITATION:

Wilson v Kite [2007] QDC 249

PARTIES:

HAYDEN PAUL WILSON

(Appellant)

V

CONSTABLE G F KITE

(Respondent)

FILE NO/S:

4 of 2007

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Mt Isa

DELIVERED ON:

26 July 2007

DELIVERED AT:

Mt Isa

HEARING DATE:

26 July 2007

JUDGE:

Dearden DCJ

ORDER:

Appeal against sentence granted

CATCHWORDS:

APPEAL AGAINST SENTENCE – where the appellant was convicted of counts of assault occasioning bodily harm, serious assault, serious obstruct, assault police and public nuisance – where the appellant was sentenced to two and a half years imprisonment in respect of the assault occasioning bodily harm charge – where counsel for the appellant contended that the Magistrate placed too much weight on the need for general deterrence, and too little weight on the objective circumstances of the appellant’s offending – whether the sentence imposed was manifestly excessive

COUNSEL:

Mr J. Greggery for the appellant

Mr N. McGhee for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islanders Legal Service for the appellant

Director of Public Prosecutions for the respondent

This is an appeal by the appellant, Hayden Paul Wilson, in respect of sentences imposed in the Mount Isa Magistrates Court on 3 May 2007.  On that occasion the appellant entered pleas of guilty to counts of assault occasioning bodily harm (which occurred on 3 November 2006), serious assault, serious obstruct, assault police and public nuisance.  The relevant and respected sentences imposed by the learned Magistrate at that time are as follows:-
1.  Assault occasioning bodily harm - two and a-half years' imprisonment;
2.  Serious assault - eight months' imprisonment;
3.  Serious obstruct - eight months' imprisonment and $500 compensation;
4.  Assault police - six months' imprisonment;
5.  Public nuisance - one months' imprisonment.

The learned Magistrate set a parole release date of 3 December 2007 and 158 days of pre-sentence custody was declared as time served under the sentence.

The subsequent period since then has seen the defendant serve a total of a further 84 days in respect of the sentence being a total of 242 days.

The appeal is in respect effectively of the sentence of two and a-half years' imprisonment in respect of the assault occasioning bodily harm charge which occurred on 3 November 2006.

The appellant was sentenced in respect of grievous bodily harm charge on 15 June 2006 to a sentence of two years and four months' imprisonment suspended after serving four months with an operational period of two and a-half years.  After an appearance in the District Court the balance of the partly suspended sentence was imposed and there is currently an effective parole release date for the appellant of 3 February 2008.

There are clearly serious and disturbing aspects to the appellant's offending in respect of the assault occasioning bodily harm charge, in particular that it occurred against his defacto wife.  That it occurred while heavily intoxicated and that it involved serious violence, namely two punches to the side of the face, knocking the complainant to the ground and causing two lacerations about 20 millimetres long on the complainant's chin, as well as a swollen left jaw and a graze to her elbow.

It does appear, in my view, that the Magistrate placed too much weight on the perhaps understandable need for general deterrence, and too little weight on the objective circumstances of the criminal offending in the context of the appellant's criminal history.

The concern of the learned Magistrate, which he expresses clearly and passionately in the course of the exchange with legal representatives in the submissions, is understandable in the context of what appears at times to be a never ending stream of primarily male indigenous offenders committing serious offences of violence against those persons with whom they are involved in intimate relationships.  However, it does seem to me that the learned Magistrate's understandable concern has, as I have said, resulted in this particular case in the imposition of penalty that emphasised general deterrence and insufficiently placed appropriate regard on the nature of the actual offence in which, without seeking to downgrade the injuries in any way, those injuries were relatively minor.

In all of the circumstances, then, it seems to me that the appeal can be appropriately dealt with by granting the appeal, setting aside the penalty imposed in respect of the bodily harm charge only, and in respect of that charge imposing a prison sentence of eight months, and in respect of that declare a period of 242 days from 27 November 2006 until 26 July 2007 as time served in respect of that sentence.

As I observed during the course of submissions, the actual custodial served sentence of eight months is the equivalent, in any event, of a two year sentence which, particularly when compared to the two years and four months which the appellant is currently serving the suspended portion for, for a charge of grievous bodily harm, just appears clearly to be out of proportion and out of balance in respect of the necessity for Courts at all times to ensure that penalties imposed reflect the seriousness, on a proportional basis, of the offences committed.

In all of the circumstances then, and noting that a parole release date of 3 February 2008 is still applicable in respect of the triggered portion of the District Court grievous bodily harm sentence, it does seem to be entirely appropriate that an effective head sentence of eight months, globally, in respect of all charges, is the appropriate sentence to be imposed, given that I have formed the conclusion that the penalty imposed by the learned Magistrate at first instance was manifestly excessive.

-----