R v. Sanders [2007] QCA 165 (25 May 2007)

Last Updated: 25 May 2007

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sanders [2007] QCA 165

PARTIES:

SANDERS, Michael Glen

(applicant/appellant)

FILE NO/S:

CA No 58 of 2007

DC No 3602 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2007

JUDGES:

McMurdo P, Jerrard JA and Philippides J

Judgment of the Court

ORDER:

1. Application for leave to appeal granted
2. Appeal allowed
3. Sentence varied by deleting the order that a conviction be recorded and in lieu ordering that a conviction not be recorded

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant was sentenced on a plea of guilty to assault occasioning bodily harm to probation and community service – where conviction was recorded – where applicant sought leave to appeal against sentence on the ground that sentence imposed was manifestly excessive because a conviction was recorded – where trial judge failed to permit a letter of remorse from the applicant to be tendered as an exhibit – where sentencing judge misstated the child complainant’s age in the sentencing remarks – where a discretion under s 12 of the Penalties and Sentences Act 1992 (Qld) to record a conviction was reexercised – consideration of principles applicable to exercise of discretion under s 12 of the Penalties and Sentences Act 1992 (Qld)

Penalties and Sentences Act 1992 (Qld), s 12

R v Bain [1997] QCA 035, CA No 452 of 1996, 14 March 1997, cited

R v Briese; ex parte Attorney-General [1997] QCA 10; [1998] 1 Qd R 487, cited

R v Brown; ex parte Attorney-General [1993] QCA 271; [1994] 2 Qd R 182, cited

R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467, CA No 241 and 243 of 2005, 14 December 2005, cited

R v Ndizeye [2006] QCA 537, CA No 286 of 2006,

15 December 2006, cited

COUNSEL:

Mr R A East for the applicant/appellant

Mr M R Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

[1] THE COURT: Michael Glen Sanders pleaded guilty to one count of assault occasioning bodily harm in company on 17 February 2006. He was sentenced to two years’ probation and 40 hours’ community service and ordered to pay $462.07 compensation. A conviction was recorded. His 13 year old juvenile co-offender, M, was sentenced to 40 hours’ community service by the Children’s Court.

[2] The applicant seeks leave to appeal against the sentence imposed on the basis that the recording of a conviction was manifestly excessive.

[3] The applicant was 17 years of age at the time of the offence and 18 years at the time of sentence. At the time of the offence, the applicant and M attended the Corinda State High School, as did the 16 year old complainant. The complainant suffered from Asperger’s Syndrome but that was not known to the applicant.

[4] The day before the assault the complainant had been involved in a verbal argument with a female friend of M. A friend of the complainant warned him that M was going to “smash him”. On 17 February 2006, after school had finished for the day, the complainant was walking across Dunlop Park, Corinda with a group of friends. He was approached by M and the applicant. The applicant had been asked by M to help him assault the complainant, although the complainant was not previously known to the applicant. The applicant and M followed the complainant and his friends, yelling out to them to stop. The complainant continued on and ignored them. The applicant then walked in front of the complainant and said “Do you want a fucking go?” to which the complainant replied “I don’t want any business”. Thereupon, without warning, the applicant punched the complainant to his face. The complainant’s version was that as he fell, the complainant grabbed the applicant in a headlock and that, while on the ground struggling with the applicant, M kicked the complainant twice to the head. He was unable to recall the events beyond that. The applicant’s version given in a police interview was that he had punched the complainant three times when M had the complainant on the ground in a headlock.

[5] After the assault on the complainant, the applicant and his co-accused walked off across Dunlop Park. The complainant’s friends assisted him back to the school where his mother was working. The complainant suffered bruising around his right ear and left eye and a laceration requiring sutures over his left eye. The complainant was taken to hospital on the morning after the assault following prolonged vomiting. A CT scan revealed a slightly displaced orbital fracture. He was treated with antibiotics. The complainant suffered from continuing dizzy spells which interfered with his ability to participate in a range of activities. He consulted a neurosurgeon who diagnosed a post-concussional head injury syndrome. The dizzy spells have abated with time.

[6] The applicant was interviewed by police on 23 April 2006. He made full admissions to assaulting the complainant and accepted that his actions were “disgraceful”. The applicant had been diagnosed as suffering from Attention Deficit Disorder but was not on medication at the time of the incident. He saw Dr Ian Wilson, a psychiatrist, three days after the assault because of ongoing behavioural issues and was prescribed Ritalin. A follow-up visit a month later found marked scholastic and behavioural improvement. At the time of sentence the applicant was no longer attending school. He was unemployed but had worked as a labourer.

Submissions at sentence and sentencing remarks

[7] At sentence the prosecutor emphasised as concerning aspects of the offence how readily the applicant had agreed to assault a younger boy who he did not even know at the request of a 13 year old boy, the significant injuries that the complainant sustained and the pre-meditated nature of the assault. It was submitted that the applicant had exposed himself to a term of imprisonment which could be wholly suspended in view of his age, but that it was also open to impose a community based order as a term of probation and that a conviction should be recorded in that event.

[8] The applicant’s counsel referred to the applicant’s personal circumstances and that some days before the incident in question the applicant’s deteriorating behaviour and academic performance had resulted in a referral to a child psychiatrist. Counsel emphasised that the applicant’s progress, after being diagnosed with Attention Deficit Disorder and being started on Ritalin, had improved dramatically. Counsel tendered a report dated 22 February 2007 from Dr Wilson and a letter to the Court dated 15 May 2006 signed by the applicant. Given the language in which the letter was expressed, her Honour questioned who was the author of the letter. Counsel indicated that it was the result of lengthy discussions between the applicant and his doctor. This elicited the following response from her Honour:

“I’m not going to accept it. A doctor wrote it. I’m not going to accept a letter. Delete that as an exhibit. Someone has put him up to that. You can tell by the language.”

[9] Counsel for the applicant did not oppose probation and community service orders as an appropriate penalty, but opposed the recording of a conviction relying on the applicant’s youth, the fact that he had his future in front of him and that his behaviour and his attitude had improved dramatically since he was placed on medication. While unable to point to any specific employment opportunity at risk, counsel submitted that “a conviction for assault might well have an affect on him, his economic well-being and social standing in the years to come”. The prosecutor indicated that the recording of a conviction had been sought due to the injuries sustained by the complainant and that he had not been aware of the mitigating circumstances relating to the applicant’s Attention Deficit Disorder in making the submission.

[10] In imposing sentence, her Honour had regard to the applicant’s age and the fact that the applicant had no prior criminal history, but noted as aggravating features of the offence that it involved an unprovoked, pre-meditated attack in company in a public place. Her Honour referred to the medical report which dealt with the applicant’s diagnosis of Attention Deficit Disorder and to the fact that the applicant’s condition appeared to be improving as a result of medication. Her Honour attached as a special condition of the two year probation order that the applicant attend for medical, psychological or psychiatric treatment as directed. Her Honour ordered that a conviction be recorded “in view of the cowardly attack and its serious consequences.”

The approach to s 12 of the Penalties and Sentences Act 1992 (Qld)

[11] As mentioned, the sole issue on this application is whether the learned sentencing judge had erred in the exercise of the discretion conferred by s 12(1) of the Penalties and Sentences Act 1992 (Qld) (“the Act”) to record a conviction. A wide discretion is granted by s 12(1) as to whether or not to record a conviction. However, s 12(2) guides the exercise of the discretion by listing some of the criteria relevant to the exercise of the discretion. It provides:

“In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including –

(a) the nature of the offence; and

(b) the offender’s character and age; and

(i) economic or social wellbeing; or
(ii) chances of finding employment.”

[12] In R v Brown; ex parte Attorney-General [1993] QCA 271; [1994] 2 Qd R 182 at 185, Macrossan CJ explained the correct approach to the exercise of the discretion conferred by s 12 as follows:

“Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court. The opening words of s 12(2) of the Act say so and then there follow certain specified matters which are not exhaustive of all relevant circumstances. In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight.”

[13] As was recognised in R v Ndizeye [2006] QCA 537 at [17], this Court has not yet specified the extent to which information or evidence should be put before a sentencing judge to raise for consideration the matters in s 12(2)(c). It has been said that a bare possibility that a conviction may affect an offender’s economic or social wellbeing or chances of finding employment is insufficient (see R v Bain [1997] QCA 35; R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467 at [7] per de Jersey CJ.)

[14] In Cay, Gersch and Schell, de Jersey CJ at [5] observed that s 12(2)(c)(ii) requires a consideration as to what would, or would be likely to ensue in the particular case at hand, were a conviction recorded and at [8] stated:

“Prudence dictates that where this issue is to arise, Counsel should properly inform the court of the offender’s interests in relation to employment, and his relevant educational qualifications and past work experience, etc, so that a conclusion may be drawn as to the fields of endeavour realistically open to him; and provide a proper foundation for any contention a conviction would foreclose or jeopardize a particular avenue of employment. Compare R v Fullalove (1993) 68 A Crim R 486, 492.”

[15] In the same case Keane JA at [43] expressed the view, which the Chief Justice did not demur from, that:

“... the existence of a criminal record is, as a general rule, likely to impair a person’s employment prospects, and the sound exercise of the discretion conferred by s 12 of the Act has never been said to require the identification of specific employment opportunities which will be lost to an offender if a conviction is recorded. While a specific employment opportunity or opportunities should usually be identified if the discretion is to be exercised in favour of an offender, it is not an essential requirement. Such a strict requirement would not, in my respectful opinion, sit well with the discretionary nature of the decision to be made under s 12, nor with the express reference in s 12(2)(c) to “the impact that recording a conviction will have on the offender’s chances of finding employment” (emphasis added). In this latter regard, s 12(2)(c) does not refer to the offender’s prospects of obtaining employment with a particular employer or even in a particular field of endeavour.”

[16] Mackenzie J stated at [74]:

“Section 12(2)(c) speaks of the impact a conviction “will” have on the offender’s economic or social wellbeing or chances of finding employment. This involves an element of predicting the future. Ordinarily, the word “will” in that context would imply that at least it must be able to be demonstrated with a reasonable degree of confidence that those elements of an offender’s life would be impacted on by the recording of a conviction. The notion of impact on the offender’s “chances of finding employment” is another way of describing the impact of a conviction on the opportunity to find employment in the future or the potentiality of finding employment in the future.”

[17] His Honour also observed at [75] the particular considerations that arise with young offenders:

“In cases involving young offenders, there is often uncertainty about their future direction in life. Perhaps, because of this, the concept may, in practice, often be less rigidly applied than in the case of a person whose lifestyle and probable employment opportunities are more predictable.”

The basis of the application

[18] Counsel for the applicant rightly conceded that the assault was correctly described by the learned sentencing judge as an unprovoked, pre-meditated, cowardly attack in company in a public place, but that this was not a case where the nature of the offence of itself warranted the recording of a conviction.

[19] Counsel for the applicant contended that her Honour erred in ordering that exhibit 4 be deleted as an exhibit as it thereby excluded from her consideration the report of Dr Wilson and the applicant’s letter, which both provided relevant information. It is apparent from the transcript of the proceedings that her Honour’s direction was that the letter of 15 May 2006 be deleted as an exhibit and not that the psychiatric report also be deleted. In our view, the learned Judge erred in refusing to permit the applicant’s letter to be tendered as an exhibit. The letter raised matters relevant to the exercise of the sentencing discretion. The letter was in two parts; one part was directed to the sentencing Judge and the other was directly addressed to the complainant and contained an unequivocal apology and expressed remorse for the applicant’s conduct. The weight to be placed on the letter was a matter for the learned sentencing Judge, however to disregard the letter in its entirety by refusing to admit it as an exhibit was incorrect. In our view that learned Judge’s error caused the discretion to miscarry in that it resulted in her Honour not being appraised of and not being in a position to consider “all circumstances of the case” and in particular considerations of remorse and the rehabilitation prospects of the applicant.

[20] There is an additional error by the sentencing judge which requires the sentencing discretion to be exercised afresh. This concerns the misstatement on two occasions in the sentencing remarks of the age of the complainant. In imposing sentence her Honour proceeded on the basis that the assault by the then 17 year old applicant had been perpetrated against a 13 year old child. The complainant was, as mentioned, 16 years old at the time and, serious as the offence was, there would have been an even more concerning feature to it had it involved an assault by a 17 year old against a much younger 13 year old child. The error seems to have influenced her Honour in the exercise of her discretion, given that she made specific mention that the applicant had “readily agreed to assault a 13 year old boy [he] did not know”.

[21] This Court is accordingly required to exercise the sentencing discretion afresh. In our view the appropriate sentence was the sentence imposed except for the recording of the conviction.

[22] In his report of 22 February 2007 Dr Wilson commented that he found the applicant to be remorseful and to regret his conduct. The applicant himself described his conduct to the police as “disgraceful”. The applicant has no prior history. He cooperated with the administration of justice in entering a plea and in participating in a police interview. He has made consistent efforts towards rehabilitation. Dr Wilson reports that when he reviewed the applicant on 21 March 2006 the applicant showed good improvement. Dr Wilson saw the applicant again on 26 May 2006, 20 September 2006 and 22 February 2007 at scheduled appointments and observed that compliance with medication had resulted in a good outcome in terms of the applicant’s interaction at school, home and with friends. Dr Wilson indicated that the proposed plan for the applicant’s management was that he be reviewed at two monthly intervals. He noted that the applicant was willing to increase the frequency of these reviews if so required by the Court. The applicant’s rehabilitation prospects, given his lack of prior history, his youth, his remorse expressed to the police, Dr Wilson and directly to the complainant in his letter of 15 May 2006, his compliance with medication for his Attention Deficit Disorder and his willingness to undergo continuing counselling, are promising. In our view exercising the discretion in s 12(2) by ordering that a conviction not be recorded would best facilitate the applicant’s rehabilitation. The observations of Thomas J (as he then was) and White J in R v Briese; ex parte Attorney-General [1997] QCA 10; [1998] 1 Qd R 487 at 491 are particularly apposite:

“It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.”

[23] There would still remain a powerful incentive for the applicant to continue his efforts to rehabilitate himself, since a failure to comply with both the probation and community service orders would result in a conviction being automatically recorded: see s 12(6).

[24] In our view leave to appeal should be granted. The appeal should be allowed to the extent of varying the sentence imposed by deleting the order that a conviction be recorded and in lieu ordering that a conviction not be recorded.

Judges

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