Case Note QLD – Selesele v Commissioner of Police [2020] QDC 342

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Facts:  An Appeal to the District Court for Assault occasioning bodily harm “AOBH” and driving of a motor vehicle without a driver licence (disqualified by court order) where the head sentence was nine months imprisonment.

AOBH: The appellant and his partner attended a store in respect of the repair of an electronic device. There was a conversation, the appellant has struck the complainant employee to the side of the head causing him to fall, hitting his head on a plaster wall. The complainant suffered injuries; treatment cost totalling $657.80.

Disqualified driving: Appellant was intercepted driving on way to pick up his then-pregnant partner. The Defendant had then been disqualified on 21 December 2018 for three years. The appellant's traffic history revealed like charges to which the applicant was sentenced to three months imprisonment, wholly suspended.

The appeal was on the basis of manifest excess in all circumstances, activating the suspended sentence to be served cumulatively with the term of imprisonment already imposed, placing insufficient weight on the personal circumstances, and placing undue weight on the principle of general deterrence in respect of violent offending.

Finding: Appeal allowed. Sentencing error.

Not unjust to order the appellant to serve the whole of the three-month suspended sentence due to a previous disqualified driving offence. However, no basis to make the six-month sentence cumulative on the activated three-month suspended sentence. The activated suspended sentence should be served concurrently, with immediate release on parole.

In relation to the head sentence of nine months, no other alternative sentences were considered. Imposing a term of imprisonment on a young offender with no relevant criminal history and good education and work history was manifestly excessive. Additionally, the injuries sustained as a result of an assault are always relevant to sentencing. There was a wide range of penalties that were not considered that could have been available for a first-time offender who threw a single punch resulting in relatively minor injuries.

Notes for practice:

• Sentences calibrated to the nature and circumstances of an assault and of the appellant.
• Sentencing error in placing undue weight on general deterrence by imposing imprisonment as first and only option with no consideration to alternate sentencing options or degree of injuries.
• Manifestly excessive to order an activated suspended sentence run concurrently with the imposed sentence in relation to driving charges.

Case note by Emily Deadman & James Torcetti

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