R v Amituanai [1995] QCA 80

R v Amituanai [1995] QCA 80 - QCA 1995 case summary — Zoe

[28]

The Attorney appealed in R. v. Logan (C.A. No. 310 of 1991, 2 April 1992) against the imposition of a sentence of six months' imprisonment and probation for three years for the offence of grievous bodily harm. A second offence of assault on a female complainant to which the respondent was sentenced to a concurrent term of one month was also involved in the offending behaviour. The respondent was aged 19 at sentence and had a previous conviction of assault occasioning bodily harm on a female. The circumstances of the offences under appeal were that a fight commenced outside a nightclub in the early hours of the morning between the male complainant and the respondent concerning the female complainant. On appeal the Chief Justice observed that an exchange had occurred between the male complainant and the respondent which might be regarded as provocation. In the course of the fight the respondent got the better of the male complainant and knocked him to the ground and there kicked him causing severe injuries. The complainant suffered a fractured skull in the region of the occipital bone at the back of the head and sustained a rupture of the right ear canal leaving him with permanent partial deafness. He also suffered lacerations and multiple contusions to his face and a possible fracture of the nose. The female complainant suffered a relatively minor bruising injury when she attempted to intervene to protect the male complainant. The Chief Justice, with whom the other members of the Court were in substantial agreement, considered that the learned sentencing Judge was unduly influenced by the youth of the respondent, and did not take sufficiently into account the serious features of the assault together with the respondent's previous relevant conviction for assault. The Court of Appeal allowed the Attorney's appeal and ordered that the respondent be sentenced to a term of imprisonment of 2½ years recommending that he be considered eligible for parole after serving one year.

[29]

Although counsel did not refer to R. v. Davis (C.A. No. 336 of 1990, 28 February 1991) in this application, the Court in Logan considered that it was indicative of an appropriate approach to sentences in grievous bodily harm cases. In that case the respondent aged 17, pleaded guilty to doing grievous bodily harm on 2 March 1990 and to an assault occasioning bodily harm on 4 March 1990. In respect of the first offence he was ordered to carry out 240 hours unpaid community service and in respect of the second, he was placed on probation for three years with special conditions that he not consume alcohol and that he stay away from nightclubs. The Attorney appealed. The respondent to the appeal had prior convictions for stealing, receiving, for disorderly conduct and for dangerous driving, and each of those convictions had attracted a fine. The offences under consideration were committed in a nightclub in Innisfail. The respondent ought not to have been on those premises because of his age. In the course of the evening he assaulted a man who was dancing with his former girlfriend and mother of his child. He claimed that the complainant was being too familiar with her but she had not sought any assistance from the respondent and the learned sentencing Judge had concluded that the assault was inspired by jealousy. The respondent punched the complainant in the face with a closed fist delivering two or three blows, fracturing the floor of the complainant's left eye socket leaving him with permanent double vision. The respondent was said to be sober at the time of that assault. Some three weeks later he was in the same nightclub and became involved in breaking up a fight. In the course of so doing he punched a man in the head breaking four teeth and fracturing his nose which required corrective surgery. The respondent was said to be drunk on that occasion. The learned sentencing Judge had adopted a sympathetic attitude towards the respondent in view of his age and mentioned the high spirits of young persons affected by alcohol. On appeal de Jersey J noted the serious nature of the complainant's injuries and their permanent consequence to the first victim, that the offences occurred over a three week period and that the respondent had a criminal record, the most recent offence having been before a court two weeks before committing the first offence. His Honour noted the need to deter such cowardly crimes. The Court allowed the appeal and ordered that the respondent be imprisoned for 2½ years in respect of each offence to be served concurrently and in view of the sentencing Judge's opinion that the respondent would benefit from counselling and supervision, recommended that he be eligible for parole after serving nine months of each term.

[30]

The final case to which the court was referred was that of The Queen v. Mlinarek and Ross (C.A. No 192 and 194 of 1992, 27 August 1992). Sentencing took place after the jury had returned a verdict against Ross, Mlinarek having pleaded guilty. It appears that in the early hours of the morning a group of five people including the complainant and Mlinarek walked onto the beach. The complainant and Mlinarek took their shirts off and started to fight. An independent witness observed the complainant on the ground being held by Ross while Mlinarek struck the complainant's face a number of times. When Ross finally released the complainant, Mlinarek stepped in and kicked him four or five times in the upper chest and head area. He then retrieved his own shirt and washed his hands at a tap while Ross went through the complainant's pockets. They both then walked away. The complainant suffered serious brain damage. He was in a coma for 24 hours and in hospital for two weeks. His jaw was fractured and required surgical repair. His short term memory had been adversely affected and he was unable to continue with his work in the export field. His personality was said to have changed in that he lacked motivation and energy; his vision was impaired and his neurologist was pessimistic about the degree of his eventual recovery. Mlinarek was sentenced to four years' imprisonment with a recommendation for parole after 18 months and Ross was sentenced to three years' imprisonment with a recommendation for parole after 12 months. There was some suggestion in statements made by Mlinarek to the police that the complainant had been "hassling" him at the front of a night club and had followed him to the beach. Although it was submitted on behalf of Ross that his role was minimal, the Court of Appeal concluded that although he was aiding the principal fighter it was a significant role in the middle stages of the incident. At the time of sentence Mlinarek was 22 with a previous minor drug conviction and Ross was aged 23 with convictions for stealing, possession and vagrancy. The learned sentencing Judge noted Mlinarek's early plea, his previous non-criminal conduct and that the offence was out of character, his unfortunate childhood, his hard work to qualify himself and the numbers of favourable references tendered on his behalf. He noted some provocation by the complainant which had led to the incident and his co-operation with the police which gave rise to the early parole recommendation.

At a glance

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Before

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Judgment (38 paragraphs)

Parties