R v Anning [2008] QCA 161

Court of Appeal (Qld)|2008-06-20|Before: McMurdo P, Cullinane and Jones JJSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made

Director of Public Prosecutions (Queensland) for the respondent

**[1] McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by Cullinane J with which I agree.

[2] These offences of grievous bodily harm were committed by the applicant on three quite separate occasions over a 12 month period on three different complainants. He was on bail for the first offence when he committed the second, and for the first and second offences when he committed the third. The victims in each case suffered serious physical injuries and prolonged psychological distress as a result of his separate attacks. Fortunately, the consequences for the victims were not even more serious. It is now notorious that even a single punch to the head of a victim can cause permanent brain injury or even death. Community protection[1] and personal and general deterrence[2] were important sentencing principles in this case.

[3] All that can be said in the applicant's favour is that he pleaded guilty at an early stage; he was a comparatively young man (22 and 23 years old) when he committed the offences; references tendered show that he has positive aspects to his character; he had a dysfunctional background; and his criminal history, which consisted of a conviction for dangerous operation of a vehicle and some street offences at least one of which involved drunkenness, was relatively minor with no prior offences for violence. Whilst he had some prospects of rehabilitation, the material before the sentencing judge did not suggest that these prospects were unusually promising.

[4] This was an entirely appropriate case in which to impose cumulative sentences for each of the quite separate episodes of offending. The comparable decision of this Court, R v Tupou; ex parte A-G (Qld)[3] would have supported a sentence of three years imprisonment with a parole release date fixed after nine or 12 months on the first count. The applicant's offending is much worse than Tupou's because he continued to offend in a like manner twice whilst on bail. The applicant's effective overall sentence of six years imprisonment, with neither a parole eligibility date nor a declaration that any of the offences were serious violent offences, was sufficiently moderate, when compared to the sentence imposed in Tupou for a single offence, to adequately reflect the totality principle and the relevant mitigating features.

[5] CULLINANE J: The applicant in this matter seeks leave to appeal against sentences imposed in the District Court at Cairns on 20 February 2008.

[6] The applicant pleaded guilty to these offences and it is common ground that the notification of the plea was an early one.

[8] He has some criminal history but it is primarily a history relating to street offences such as disorderly conduct and committing a public nuisance.

[9] The applicant pleaded guilty on three separate indictments to three separate counts of doing grievous bodily harm. The offences in each case were committed in the early hours of the morning in Cairns and involved three separate complainants.

[10] The first of these incidents occurred on 28 May 2006 and the complainant was one John Robert Geary.

[11] The second occurred on 7 October 2006 and the complainant was one Andrew Robert Woods and the third occurred on 12 May 2007 and the complainant was one Dean Jones Geisel.

[12] The applicant was sentenced to two years imprisonment on each of the counts, the second to be served cumulatively on the first and the third to be served cumulatively on the first and second. No order was made in relation to early parole.

[13] The complainant, Geary, who was an 18 year old at the time of the offence, was at a service station at Cairns on the evening of 28 May 2006. He had consumed some alcohol over the preceding hours.

[14] Whilst he was at a security window purchasing food, the applicant approached him aggressively asking, "You want a piece of me?" and taking off the singlet that he was wearing. The complainant was not known to him.

[15] Whilst the complainant's recollection of events is relatively limited and he does not recall the initial assault upon him by the applicant, a service station attendant who was present could hear some of what was said. He says that the complainant said that he did not want to fight the applicant and repeated this.

[16] The applicant struck the complainant in the face as a result of which he fell to the ground. He lay on the ground and attempted to cover up by placing his arms over his head. The applicant grabbed the complainant by the hair with his left hand and was seen to punch him about six or more times in the face and head. The applicant also kicked him in the face and head area on a number of occasions.

[17] As a result of the assault, the complainant sustained a fractured right cheek bone, bruising and swelling to the right eye and cuts under the right eye. He also had bruising to the left eye and a cut to the face near the left eye. As a result of the assault he suffered and it would seem he continues to suffer from headaches.

[18] In his interview with the police the applicant claimed that he had been subjected to racial abuse. The applicant is of a mixed racial origin with his father being a South Sea Islander and his mother described as being half-Aboriginal and half-Maori.

[19] The explanation he gave when asked why he kicked the complainant and continued to assault him on the ground was "so that he would stay down".

[20] On 7 October 2006, the complainant Woods, who was a visitor from Britain on holidays in Cairns, was walking along Lake Street towards Spence Street at about 4.40 am on the morning of 7 October having left a nightclub. The complainant had been drinking but it is not suggested that he was adversely affected by alcohol.

[21] As the complainant and a colleague were walking along Lake Street, they saw three persons standing on the pavement. One of the three said, "Alright mate" to the complainant's friend and the friend said in response, "Alright mate." The complainant and his friend continued walking for another five to ten seconds when the applicant came on the scene and said to the complainant's friend, "What did you say to my brother?" addressing the friend. The complainant continued walking not having seen the applicant but he then noticed the applicant talking to his friend and stopped and listened to the conversation for a brief period. The applicant again said, "What did you say to my brother?" and the complainant's friend said, "I didn't say anything to your brother".

[22] The complainant put his hands in front of him with his palms facing outwards in a non-aggressive fashion and walked back towards his friend, saying to the applicant, "Look, he didn't say anything to your brother". As the complainant got close to where his friend and the complainant were standing, the applicant punched him in the jaw. The punch caught the complainant unawares and he then put his hands up in front of his face with his arms facing inwards to protect himself. He stepped back in an attempt to get at more than arm's length to avoid the applicant who punched him a second time on the left hand side of the face, causing him to fall to the ground. He felt two more blows but he managed to deflect these.

[23] The complainant sustained two fractures to his lower jaw and lost a tooth in the lower jaw. It would seem he has now made a full recovery.

[24] In relation to the third incident, the complainant on 12 May 2007 went to a hotel to watch football. He consumed some alcohol. After he left he sat in front of a bank in Lake Street eating a hot dog. These events occurred a little after 4 am. Whilst he was eating the hot dog, he was approached by an indigenous male (not the applicant) who he had seen earlier at the Casino and was asked by him for a cigarette. He said that he could feel spit from that person striking him on the side of the face. The complainant told this person he could not have a cigarette as a result of which he continued to spit upon the complainant then told him to, "Fuck off".

[25] According to the complainant he looked away from this person whilst still feeling spit hitting his face. He stood up and says that he can remember looking at this person and trying to get rid of him before he found himself on the ground. When he tried to get up he could feel an intensely sharp pain in the right side of his jaw.

[26] There is some film of this incident taken from what is described as the city safe footage. The applicant can be seen coming in from the right hand side of the complainant who was facing away from him towards the other male. The applicant threw one punch directly at the face of the complainant who fell to the ground.

[27] Some people who were present came to the complainant's aid.

[28] The complainant suffered a broken jaw and was still suffering from symptoms in his jaw when the Victim Impact Statement of early 2008 was made.

[29] The second and third offences were committed after the applicant had been apprehended for the first offence and had been released on bail.

[30] On each occasion the offences were unprovoked.

[31] A psychologist report which was tendered suggested that the applicant suffered from a number of conditions including post-traumatic stress disorder, major depressive disorder, substance dependence and intermittent explosive disorder and possibly a schizophrenic condition.

[32] However a psychiatrist's report, which was also tendered, did not support a schizophrenia diagnosis although it was thought possible that he had an insipient schizophrenic illness. The psychiatrist thought that the applicant was in a paranoid state of mind at the time.

[33] It is obvious from the terms of this report that the applicant in his interview with the psychiatrist sought to justify his actions by alleging provocative, abusive conduct on the part of the victims.

[34] The learned primary judge said that he gave "little weight" to the remorse which the applicant claimed. He expressed these reservations because of the contents of the psychiatric report. His Honour said that the matters going to mitigation of penalty were the pleas of guilty and the youth of the applicant. His Honour did not make any express reference to the totality principle in his sentencing remarks.

[35] Before the learned sentencing judge, the prosecutor contended for a total sentence of five to six years imprisonment. Counsel for the applicant did not demur to this suggestion.

[36] The Court was referred to the judgment of the Court of Appeal in R v Tupou; ex parte A-G (Qld).[4]

[37] That was a case in which the respondent attacked a person who he did not know who was standing at a taxi rank. The applicant had been seated in a taxi and claimed that the complainant had said something to him. The respondent got out of the cab and punched the complainant, knocking him to the ground. The respondent was a much heavier man than the complainant who suffered from cerebral palsy. The respondent punched the complainant when he was on the ground and a video suggested that he prepared to kick the complainant although it is not clear whether he in fact did so.

[38] The respondent ran away from the scene and when pursued by the police, ran off.

[39] The complainant suffered a depressed fracture of the right cheek, a fracture to the left cheek, a broken nose, a fractured jaw and the loosening of three teeth. He suffered some permanent consequences of the accident in the nature of a loss of confidence and the development of a stutter, which had previously subsided. He had some ongoing physical consequences of the attack, including numbness in one cheek and looseness of the teeth.

[40] He was sentenced to a term of imprisonment of some three years, suspended after nine months with an operational period of three years. The Attorney-General appealed.

[41] The respondent had a criminal history somewhat similar to that of the applicant here.

[42] The Chief Justice (with whom Mullins J agreed) said at p.10:**

"In a number of recent decisions the Court of Appeal has explained the strength of the importance of deterrence in sentencing for violent offending of this general character. The public rightly expects the Courts by their sentences to achieve so much as can be achieved to help ensure the cities of this State are safe places for those who venture out during the night"

" If the minimum head sentence appropriate in Bryan was six to seven years imprisonment following the plea of guilty, then allowing here for the absence of a weapon but the cases' otherwise general comparability, I would think a head sentence in this case of three to four years imprisonment to be appropriate. In Bryan, it should be noted, there was no suspension or recommendation as to post-prison community based release added. Accordingly, that three to four year level should be seen as taking account of the plea of guilty in particular"

**[44] The obvious similarities to this case means that the above remarks are applicable here.

[45] Here the applicant acted in a way justifiably described by the learned sentencing judge as "brutal and cowardly'. He did so on three separate occasions attacking on each occasion an innocent stranger in the streets of Cairns. His Honour was entitled to be sceptical of his claim of remorse.

[46] Counsel for the applicant relied upon a number of cases. These however all pre-date Tupou and their relevance must now be regarded as quite limited.

[47] Counsel contended that his Honour had fixed upon two years in each case (to be served cumulatively) as the sentence appropriate to the circumstances of the offences but had failed to make any allowance for the plea of guilty or the totality principle. Whilst it is true his Honour, although referring to the plea of guilty and the applicants youth, did not expressly mention the totality principle it is hardly likely he would have overlooked it when imposing three cumulative sentences.

[48] If the applicant's contention is accepted it must follow that his Honour ignored what the Court said in Tupou, to which he had just been referred. There is nothing which gives support to such a conclusion.

[49] Once regard is had to the range which the Court in Tupou said was appropriate it is apparent that the sentences here fall within it and cannot be regarded as manifestly excessive.

[51] JONES J: I have read the reasons of Cullinane J. I agree with those reasons and with the orders proposed.**

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