R v Bennett

SUPREME COURT OF QUEENSLAND

CITATION: R v Bennett [2007] QCA 324

PARTIES: R v BENNETT, Damien Harley (applicant)

FILE NO/S: CA No 214 of 2007 / DC No 1389 of 2007

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED EX TEMPORE ON: 4 October 2007

DELIVERED AT: Brisbane

HEARING DATE: 4 October 2007

JUDGES: Keane and Holmes JJA and Jones J / Separate reasons for judgment, each concurring as to the order made.

ORDER: Application for leave to appeal sentence refused

CATCHWORDS: Criminal law – Appeal and new trial and inquiry after conviction – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When refused – generally – where applicant sentenced to 18 months imprisonment with parole release date fixed at 4 January 2008 for assault occasioning bodily harm whilst armed – where the applicant struck the victim whilst holding in glass in the hand used to strike – where injury to complainant insufficient to constitute wounding - whether sentence manifestly excessive. / Criminal Code 1899 (Qld), s 339(1)(3), s 323(1)(a) / R v Berryman [2005] QCA 471, CA No 282 of 2005, 16 December 2005, cited / R v Hays; ex parte Attorney-General [1999] QCA 443, CA No 271 of 1999, 29 October 1999, cited / R v Rosenberger; ex parte Attorney-General [1995] 1 Qd R 677, [1994] QCA 488, cited / R v Toohey [2001] QCA 149, CA No 351 of 2000, 19 April 2001, cited

COUNSEL: S J Hamlyn-Harris counsel for the applicant / T A Fuller for the respondent

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

JONES J: On 4th September 2007 the applicant pleaded guilty to one count of assault occasioning bodily harm whilst armed. He was sentenced to 18 months' imprisonment with a parole release date of 4 January 2008, that is four months after sentence. He seeks leave to appeal to this Court on the ground that the sentence is manifestly excessive.

His offending occurred at an inner-city hotel in Brisbane where he became intoxicated and commenced to abuse other patrons. He was warned by hotel security staff and allowed to remain but he persisted in this conduct.

In the course of a verbal altercation he struck the complainant with his left hand in which he was holding a pint glass. When it struck the complainant's head the glass shattered causing superficial abrasions and scratches to the complainant's ear. The injury was not sufficient to constitute a wounding.

The appellant's actions fall within a class of offence colloquially known as "glassing". The instances of this type of offending range from deliberate breaking of the glass or bottle to use as a weapon to, as is suggested here, intending only to punch but incidentally having the glass in the hand. The damage inflicted can range between serious facial disfigurement or loss of vision on the one hand and superficial injury on the other. The charges vary between doing grievous bodily harm, unlawful wounding and assault occasioning bodily harm.

It is not surprising then that the cases to which reference is commonly made show a significant range of penalty. However, it seems reasonably well-settled that head sentences commonly fall within the range of one to three years' imprisonment: R v. Hayes, ex parte Attorney-General, [1999] QCA 443 at paragraph 6, a case of wounding; R v. Toohey [2001] QCA 149, also a case of wounding; and R v. Berryman [2005] QCA 471 paragraphs 11 and 16, doing grievous bodily harm.

In the present application issue is not taken with the length of head sentence but rather with the four months actual custody to be served. The applicant argues that the circumstances of the offending, the fact of his early plea, and other matters personal to him takes the case outside the consideration which the Chief Justice described in Hayes in these terms:

"Ordinarily persons committing offences of this character must expect to have a term of actual imprisonment. That is so even if the offender is young with an unblemished record and commits the offence spontaneously."

Firstly, the applicant here is a relatively young man, 26 years of age at the time of the offence. There is evidence to suggest that he was less mature than even those years would suggest. Secondly, he pleaded guilty at a relatively early time although after a committal hearing. Thirdly, the seriousness of the offending is at the very low end of the scale. His actions should be viewed as a punch rather than as striking with a glass. Finally, the resulting injury to the complainant was minor. The learned sentencing Judge referred to each of these aspects in his remarks. (See the appeal record at page 11).

The applicant does have a criminal history which includes two prior convictions for common assault and one assault of a sexual nature but otherwise does not include any offences of significance. The first assault occurred some five years prior to this offending and the latter two offences four years before.

In respect of the sexual assault he was sentenced to six months' imprisonment to be served by way of an intensive correction order with a special condition of satisfactory completion of a course on substance abuse.

The applicant was heavily intoxicated at the time of this offending. He was well aware that he was more susceptible to the adverse effects of alcohol.

Thus it is the drinking that is the source of his problem. His drinking also featured in his earlier offending. He was for four years able, with counselling, to keep the problem under control. He has, since the current offending, sought counselling and through this appears to have kept his problem under control.

The applicant has a good work history since leaving school at the end of 1994. He has been in continuous employment in a variety of positions including those involving the use of machinery. There is no suggestion of any problem with alcohol in the work situation.

His issue then is being able to control his alcohol consumption in a social setting. This problem was elaborately placed before the learned sentencing Judge in the following terms at page 8 of the record:

"Unfortunately for my client alcohol seems to have a very detrimental effect. He says that he is not an alcoholic and he doesn't drink that often but when he does he drinks until he has no memory and obviously lacks control. In speaking with him he is an extremely insipid young man. He is about as meek and mild as one can get. But when he takes alcohol it seems there is some Jekyll and Hyde element to his personality because he obviously behaves in a fashion which is completely out of character with his usual demeanour in society."

His Honour gave weight to these matters saying at paragraph 12 of the record at about line 30:

"You obviously have some psychological problems when you are drinking so you need to be careful about that in the future. I am told that this has already been a lesson to you, that you propose to stay away from alcoholic liquor, and you would be well advised to do that."

Having regard to this discrete problem, and the other matters favourable to the applicant, counsel for the applicant suggests that although intoxication is not to be regarded in mitigation, it remains relevant to the extent that the offence did not involve deliberation: R v. Rosenberger, ex parte Attorney-General, [1995] 1 Qd R 677.

Accordingly it is submitted that the applicant's act was irrational and out of character. This fact, coupled with his ongoing rehabilitation efforts, should have resulted in the term of imprisonment being wholly suspended.

Counsel for the applicant referred to R v. Monroe [2002] QCA 483, an appeal against sentence which was refused. In that case, in somewhat similar circumstances, a sentence of four months' imprisonment wholly suspended was imposed but it is important to note that the applicant in that case had no prior convictions and that is a significant point of distinction here.

The sentencing approach in this case might well have included a mixture of a shorter term of actual imprisonment coupled with a probation order. The probation order could have been conditioned to reinforce the applicant's own effort at seeking rehabilitation but that was not sought. The Court is concerned with the question of whether the sentencing discretion below has miscarried.

Against the background of the applicant's apparent inability to control his actions when under the influence of alcohol and his prior offending when under the influence of alcohol, the applicant must have been aware of the menace which he presents when he voluntarily determines to drink to excess. The risk to the community is considerable. It was a matter of good fortune, in my view, rather than any restraint on the part of the applicant, that the complainant did not suffer more serious injury in this instance.

That the applicant needs more counselling is obvious. His problem seems now to be much better understood. That counselling, in my view, will be more effective if it is undertaken knowing that serious consequences will flow from non-compliance with the lessons thereby learnt.

In my view it has not been shown that the learned sentencing Judge's discretion has miscarried. I would refuse the application.

KEANE JA: I agree.

HOLMES JA: I agree that the sentence should not be disturbed. I make this observation. The Prosecutor at sentence, it seems to me, ought not, without qualification, have advanced a sentencing range relating to unlawful wounding when this was a charge of assault occasioning bodily harm while armed. The distinction is important in a glassing case. But it was appropriately drawn to the learned Judge's attention by defence counsel and he clearly appreciated its importance, as is demonstrated in his sentencing remarks.

A lesser sentence might have been imposed, or one devised more with a view to rehabilitation, as Justice Jones has suggested, but one cannot say that this sentence is manifestly excessive.

KEANE JA: The order of the Court will be application for leave to appeal against sentence refused.

MR HAMLYN-HARRIS: Your Honours, could I be permitted just to realise by way of correction one relatively minor factual matter and that is, your Honour, I think it is apparent from the submissions made by the applicant's counsel before the learned sentencing Judge that the applicant didn't start on the medication, sulfasalazine for the reactive arthritis until after the offence. I only raise that because there was a brief reference in your Honour, Justice Jones's reasons, to that which I just thought I should draw to your Honour's attention.

KEANE JA: Thanks, Mr Hamlyn-Harris.