1. MATERIAL FACTS
On 6th July 2013 at about 5.00am, the two respondents, then both aged 19, entered a taxi.
When the taxi driver became aware the respondents could not pay the fare, he said he would drive them to the police station, which prompted the respondents to begin swearing. The driver stopped the taxi and the respondents and the driver got out.
One of the respondents (Drobny) tackled the driver to the ground, causing bruising to the driver’s thighs. The other respondent (Levy) punched and kicked the driver, causing multiple facial fractures that required surgery.
Neither of the respondents had prior convictions. Drobny was convicted of one count of occasioning bodily harm, and was sentenced to 150 hours of community service. Levy cooperated with police and entered an early guilty plea. He was convicted of causing grievous bodily harm and sentenced to imprisonment for 30 months, but was released on parole immediately.
2. ISSUES ON APPEAL
In respect of each respondent, was the sentence imposed by the trial judge manifestly inadequate?
3. FINDINGS OF THE COURT
3.1 Morrison JA
Morrison JA came to his decision on the issue as to whether a conviction should be recorded against Drobny by firstly distinguishing the authorities relied on by the appellant.
Morrison JA considered R v Wilkins; Ex parte Attorney-General, and R v Lude & Love, cases in which the respondents had pleaded guilty to occasioning bodily harm. His Honour noted that the severity of the assaults, the injuries sustained by the victims in both Wilkins and Lude & Love and the fact that Wilkins had committed the offence whilst already on a suspended term of imprisonment rendered both cases to be of no relevance.
Furthermore, Morrison JA dismissed the other authorities relied on by the appellant (R v Bryan; Ex parte Attorney-General, R v Tupou; Ex parte Attorney-General and R v Hamilton ), on the grounds that they were cases of grievous bodily harm, and thus not applicable to Drobny.
However, Morrison JA did take into consideration what the Court stated in Wilkins: that those who assault taxi drivers should receive ‘salutary deterrent penalties’, implying that community service alone would be inadequate. Therefore, while Morrison JA acknowledged Drobny’s age, qualifications and the effect a conviction would have on his future, he decided the appeal should be allowed and a conviction recorded to give the sentence a deterrent effect.
In order to come to a conclusion on the issue of the adequacy of Levy’s sentence, Morrison JA considered a number of cases.
Firstly, his Honour considered a passage from the judgment of Bryan, in which Williams JA stated that the main factor considered when sentencing for grievous bodily harm should be deterrence. The sentence in Bryan was subsequently increased from four to six years.
Morrison JA observed that the reasoning in Bryan was applied to a similar case, Tupou, in which the sentence of imprisonment was lengthened by four months. His Honour stated that therefore while there were differences between Levy and the cases of Bryan and Tupou, the rule outlined in both, that the need for deterrence should out-weigh other factors considered by the courts, supported the appeal against Levy’s sentence on the basis that immediate parole was inadequate.
Furthermore, Morrison JA considered the reasoning of the Court in Hamilton, where it was stated that, ‘Courts must ordinarily impose heavy deterrent penalties on those who gratuitously assault taxi drivers’, which implied that immediate parole was inadequate.
Additionally, Morrison JA distinguished the case of R v Hopper; Ex parte Attorney-General, in which residual discretion had been exercised, on the basis that Levy was not psychologically vulnerable and that the common element of employment could not be a determinative factor.
After considering these authorities, Morrison JA concluded that in offences such as grievous bodily harm, the need for deterrence should outweigh the consideration of personal factors.
Morrison JA, taking into account the six months of parole Levy had already completed and the elements of double jeopardy present, ordered the appeal against Levy to be allowed and a four-month period of imprisonment imposed, on the reasoning that immediate parole would not have a deterrent effect.
3.2 Holmes JA
While Holmes JA concurred with Morrison JA that the community service should stand, her Honour opposed the recording of a conviction against Drobny. Unlike Morrison JA, Holmes JA believed the sentencing judge to have exercised appropriate discretion in not recording a conviction, as outlined in s 12(1) of the Penalties and Sentences Act 1992 (Qld).
Holmes JA elaborated on this, stating that Drobny’s involvement in the assault, the injuries caused to the complainant nor the vulnerable position in which his attack placed the complainant were substantial enough factors to out-weigh those specified in s 12(2) of the Act (i.e. Drobny’s age, the impact a conviction would have on his future and the fact that this was his first offence).
Holmes JA held the appeal against Levy’s sentence should be allowed, agreeing with Morrison JA’s reasoning that the seriousness of the offence rendered immediate parole inappropriate. His Honour concurred with the orders Morrison JA proposed in regard to Levy’s sentence.
3.3 McMurdo J
While McMurdo J agreed that the community service order should stand, his Honour dismissed the appeal against Drobny, concurring with the reasoning of Holmes JA.
McMurdo J agreed with Morrison JA’s decision and reasoning, and held that the appeal against Levy should be allowed.
4. SIGNIFICANCE OF GENERAL DETERRENCE AND DENUNCIATION
The court was required to consider general deterrence and denunciation because they are two of the only purposes for which a sentence may be imposed on an offender under the Penalties and Sentences Act 1992 (Qld).
In the event that Levy had been armed and inflicted life-threatening injuries, Bryan is applicable. Bryan was a young man with no prior convictions who attacked a man with a knife, causing life-threatening injuries. He was sentenced to four years imprisonment, suspended after 12 months. On appeal, the Court increased the sentence of imprisonment to six years. Bryan had also threatened a witness and lied about his involvement. However, the seriousness of Levy’s offence still demands a period of imprisonment. I would allow the appeal, and increase the sentence to three years imprisonment, with eligibility for parole after twelve months.
5. APPLICATION OF HART V RANKIN FEEDBACK
The feedback I applied to the analysis of R v Levy & Drobny was to read the judgment a number of times to gain a deeper understanding of the reasoning. By doing this, I was able to identify the underlying reasoning of the judges, which I failed to do in the Hart v Rankin analysis. (Word count: 1462)