R v Bailey [2009] QCA 251

SUPREME COURT OF QUEENSLAND

CITATION: R v Bailey [2009] QCA 251

PARTIES: R v BAILEY, Rick James (applicant/appellant)

FILE NO/S: CA No 109 of 2009 / DC No 70 of 2009

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Southport

DELIVERED ON: 1 September 2009

DELIVERED AT: Brisbane

HEARING DATE: 3 August 2009

JUDGES: Holmes JA, Mullins and Philippides JJ / Judgment of the Court

ORDERS: **Application for leave to appeal allowed;****Appeal allowed;****Sentence imposed at first instance set aside;**Sentence of three years imprisonment suspended after a period of nine months, for an operational period of three years, substituted.

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 pleaded guilty to one count of doing grievous bodily harm and was sentenced to four and a half years imprisonment with eligibility for parole after 15 months – whether the sentence was manifestly excessive having regard to certain mitigating factors / Criminal Code 1899 (Qld), s 320 / R v Berryman (2005) 159 A Crim R 65; [2005] QCA 471, considered / R v Brand [2006] QCA 525, considered / R v Hammond (1996) 92 A Crim R 450; [1996] QCA 508, considered / R v Hays; ex parte A-G [1999] QCA 443, considered / R v Henriott [2004] QCA 346, considered / R v Jaramillo [2007] QCA 420, considered / R v Jones [2008] QCA 181, considered / R v Rehavi [1999] 2 Qd R 640; [1998] QCA 157, considered / R v Weare [2002] QCA 183, considered

COUNSEL: A J Glynn SC for the applicant/appellant / P F Rutledge for the respondent

SOLICITORS: Robertson O'Gorman for the applicant/appellant / Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT: On 2 March 2009 Rick James Bailey pleaded guilty by way of ex-officio indictment to one count of unlawfully doing grievous bodily harm. On 27 April 2009, he was sentenced to four and a-half years’ imprisonment with parole eligibility on 27 May 2010 (effectively after 15 months from the date of conviction). The 56 days of pre-sentence custody was declared as time served. The applicant, who was 19 at the time of the offence and 20 at the time of sentence, seeks leave to appeal against the sentence imposed on the ground that it is manifestly excessive.

2. The matter proceeded on the basis of agreed facts, as outlined in a schedule of facts that was tendered at sentence. The circumstances are that on 19 January 2008, the applicant and the complainant, who did not know each other, were drinking at the bar of a hotel. The complainant was there with a friend and the applicant was seated nearby with his girlfriend. He had his back to the applicant. The applicant was observed to be drinking from a schooner glass. The applicant’s girlfriend moved from her seat to one near the complainant. The complainant did not speak to her. A short time later, the applicant walked towards the complainant, stood behind him and struck him in the face with the glass he had been drinking from. There had been no interaction between the complainant and the applicant or his girlfriend either before or after the attack. The complainant sustained significant facial injuries as a result of being struck with the glass which broke. These included:

●a large facial laceration through the right eyebrow, across the upper eyelid, along the right inner canthus, along the right lateral aspect of the nose, with a full thickness laceration through the right alar;

●a 3-4 mm round hole in the cartilaginous nasal septum, 1.5-2 cm from the distal tip.

3. The complainant underwent surgery spending several days in hospital. The injuries to the complainant were repaired as follows. The hole in the nasal septum was repaired with a mucosal transposition flap from the floor of the nasal passage onto the right, to cover the hole. The complainant received follow up treatment from the Plastics Unit at Westmead Hospital in Sydney.

4. The applicant did not participate in an interview with police. Police stated that he appeared to be mildly affected by alcohol when spoken to by them.

5. Before the sentencing judge, the prosecutor had contended for a head sentence in the range of three to four years. Counsel for the applicant conceded that a custodial sentence was required, but contended for a sentence in the range of two and a-half to three years with release after nine months.

6. The learned sentencing judge made the following observations. The assault was an unprovoked one, committed without any apparent reason, which could be explained but not excused by the fact that the applicant suffered from alcoholism and was intoxicated at the time. The attack was quick, taking the complainant by surprise, but was not sustained and continuing. The complainant was left with significant facial scarring which was permanent and disfiguring.

7. In imposing a sentence heavier than that urged by either counsel before him, the sentencing judge emphasised the need for general deterrence as a significant consideration. His Honour had earlier in his sentencing remarks observed, however, that heavier sentences would probably have been unlikely to deter the present offence because of the applicant’s alcoholism. He also noted that the incident appeared to have been a wake up call for the applicant as to the seriousness of his alcohol dependence; he had taken positive steps to cure his alcoholism as was apparent from the medical reports tendered. The sentencing judge stated that he had regard in the sentence imposed to the applicant’s plea to an ex-officio indictment as indicating remorse, his virtual absence of any criminal history and his family situation and responsibilities, in particular that the applicant was in a permanent relationship with a recently born infant son.

8. Before this Court counsel for the applicant contended that the range within which the sentence should have been imposed was one of three to three and a half years, suspended after a quarter of the period. In support of the applicant’s submissions emphasis was placed on the applicant’s circumstances, his age and negligible criminal history, the early ex-officio plea, accepted remorsefulness and his personal circumstances.

9. Additionally, a submission was made on behalf of the applicant that the applicant’s alcoholism could be equated to the situation of a drug addict who committed offences in order to feed his addiction. The argument made was that the offence committed by the applicant should therefore be seen as a secondary consequence of his alcoholism. Reliance was placed on the following passage in (1996) 92 A Crim R 450 at p 455:

“The true relevance of drug addiction is a factor contributing to the commission of crime and its effect in the sentencing process has never been adequately explained. In our view it is a factor that may help an offender to the extent of showing that his or her descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice. It may be inferred in many cases (and the present case is very much in point) that the offender would almost certainly never have become a thief but for loss of control of an ordered life through drug addiction. The proposition that the results of drug addiction are self-inflicted is half true and therefore dangerous. The offender must of course be held responsible for his or her own actions. The drug addiction is not an excuse; but it is a factor that may tell the court that the real weakness of character is that of a drug addict rather than that of a robber. That may be by no means inconsequential. It is however a two-edged factor; it may also tell the court that rehabilitation is going to be difficult.”

10. The analogy however is neither apt nor useful in the present case. The offence in question was one of alcohol fuelled violence, but it cannot be seen as one necessitated by the applicant’s alcoholism.

11. The maximum sentence for the offence of grievous bodily harm is one of 14 years imprisonment. In R v Brand [2006] QCA 525 the Court of Appeal, in reviewing a large number of sentences imposed for grievous bodily harm, observed at [15]:

“The only real conclusion that can be drawn from a consideration of the cases referred to is that the appropriate sentence for the offence of grievous bodily harm will vary significantly and that relevant factors will include the nature of the injuries sustained, the age of the offender, the criminal history of the offender, whether or not a weapon was used, whether the offence was established by one blow or whether there was a sustained attack on the complainant.”

12. In support of the submission that the comparatives demonstrate that the sentence imposed was manifestly excessive, counsel for the applicant referred to R v Rehavi [1999] 2 Qd R 640, R v Weare [2002] QCA 183 and R v Henriott [2004] QCA 346.

13. In Rehavi, the appellant was convicted after trial of grievous bodily harm with intent and sentenced to five years’ imprisonment. The offence occurred at a nightclub when the complainant went to the bar to return an empty glass. After an exchange between the appellant and the complainant, the appellant struck the complainant in the face with a glass, using an action described as an upward punch. The complainant suffered significant facial injuries, including permanent numbness and loss of facial control over part of his mouth. The appellant was 30 years of age at the time of the offence and 32 years old when sentenced. The Court of Appeal set aside a conviction for grievous bodily harm with intent, substituting one of grievous bodily harm for which a sentence of three years was imposed.

14. In Weare, the applicant had been part of a group which had clashed earlier in the evening with a group of which the complainant was part. It was accepted that the complainant had not been involved in any conduct that could be regarded as provocative. The applicant, who was with two others, attacked the complainant while he was walking home, striking him from behind with a tree branch. The complainant sustained serious injury, effectively resulting in a loss of vision in one eye. The applicant, who had entered a plea, was 19 at the time of the offence and had some minor prior convictions, but none for violence. A sentence of three and a-half years’ imprisonment was varied on appeal by ordering a suspension after 12 months for an operational period of three years, because mitigating factors had not been given proper weight.

15. In Henriott the applicant, who was 39 years old at the time, assaulted a 16 year old boy who had had an argument with the boyfriend of the applicant’s daughter. The applicant’s son complained to the applicant about the conduct of the complainant. At a later point, the applicant confronted the complainant saying, “Ever touch my son, cunt, and you’re fucked,” and at the same time he swung a 12 inch shifting spanner and struck the complainant just below the left eye. The complainant suffered a closed head injury, a fractured left eye socket, contusions and lacerations to his face with permanent loss of visual acuity. His injuries required surgery which involved the placement of metal plates and screws in his face. He was a promising rugby league player but was unable to return to playing that sport. He was also unable to complete his apprenticeship as a carpenter. The applicant, who had an extensive criminal history (though not a recent one), entered a late plea to doing grievous bodily harm and was sentenced to four and a-half years’ imprisonment. On appeal the sentence was varied by suspending it after 18 months with an operational period of five years. The head sentence of four and a-half years’ imprisonment was said to be at the higher end of the range.

“Berryman was a far less serious case than the present one. It involved one blow to the face with an unbroken glass. The applicant did not act in company with others, and the blow was not repeated. The facts in Rehavi were similar.”

22. Whilst the learned sentencing judge correctly identified deterrence as a significant factor in the sentence to be imposed for offences of this kind, it is apparent from the cases referred to by both the applicant and respondent that the sentence imposed was manifestly excessive.

23. In referring to Jaramillo counsel for the respondent properly conceded that it was a more serious case than the present one, involving the repeated use of a broken bottle by an offender in company with others. Likewise, the four and a-half years term of imprisonment imposed in Henriott concerned a more serious example of the offence, involving an attack using a heavy spanner and resulting in more extensive injury committed by a much older offender, with a lengthy criminal history, who entered a late plea.

24. There are some similarities between the present case and Weare. Weare, who was of a similar age to the present applicant, received a head sentence of three and a half years imprisonment. However, the offender in that case had a more significant criminal history and the offending occurred in company and had even more serious physical consequences. In both Berryman and Rehavi head sentences of three years were imposed. While there are parallels between the conduct in Rehavi and the present case, Rehavi was significantly older than the present applicant. Berryman bears closer similarities to the present case, but an aggravating factor in that case not present in this case was the additional offence of violence committed while on bail. A consideration of these cases however demonstrates that a head sentence of four and a-half years cannot be sustained as being within the proper exercise of the sentencing discretion. It follows that the sentencing discretion falls to be exercised afresh.

25. The offence was undoubtedly a serious one, involving the use of a beer glass in an unprovoked attack resulting in significant injuries with ongoing consequences for the complainant, as is apparent from the victim impact statement. Clearly deterrence is an important factor in the sentence. Also relevant is that the attack involved a single blow inflicted in circumstances where the applicant was not acting in company. The applicant was 19 years old at the time and with a minor history, which included three driving offences.

26. Having regard to the circumstances of the offending and the comparatives, a sentence of three years is appropriate by way of a head sentence. The sentence imposed must also reflect the matters of mitigation in the applicant’s favour. The applicant entered an early plea to an ex-officio indictment and cooperated with the authorities. He was remorseful and has made significant steps towards rehabilitation, including seeking assistance for his alcoholism. His prospects for rehabilitation are promising. He is in a permanent relationship, has a young son and has a good employment history. He is the sole income earner for his family. Taking those matters into account the sentence of three years imprisonment should be suspended after a period of nine months for an operational period of three years.

(a) the application for leave to appeal be allowed.

(b) the appeal be allowed.

(c) set aside the sentence imposed below and in lieu impose a sentence of three years imprisonment suspended after a period of nine months for an operational period of three years.