R v Bonner [1997] QCA 394

Court of Appeal (Qld)|1997-10-15|Before: Pincus JA, Lee J, Cullinane J

PINCUS JA: This is an application for leave to appeal against sentence. The applicant pleaded guilty in the District Court to a charge that on 6 May 1988, at the Gold Coast in the State of Queensland, he unlawfully did grievous bodily harm to one Randall; he was sentenced to 8 years imprisonment. At the sentence hearing the judge was told that the applicant was hired by one Kirby, to come to Queensland and inflict serious bodily injury upon Randall, who was a business competitor of Kirby. The judge was told that Randall was alone in his office about 5.00 p.m. on 6 May 1988 when he was attacked from behind by an assailant whom he did not see and who turns out to be the applicant. The victim received head injuries, including a laceration 12 centimetres long over his forehead and a compound fracture of the frontal bone. There were also contusions in the region of both eyes, a laceration behind an ear and rib fractures.

As to the procedural history of the present matter, the prosector said that the applicant's committal involved cross-examination of a number of witnesses; there was a plea of not guilty and the applicant was committed for trial. The prosecutor said the matter was set down for trial on a number of occasions and on 9 January 1997 the applicant gave notice of alibi stating that at the relevant time he was at a place in the Northern Territory which he nominated. That alibi was investigated and was, of course, false.

Counsel for the applicant below told the judge that the applicant was very remorseful, that he was, at the relevant time, extremely short of money and he gave into the temptation of making some quick money. Counsel below said that Vogler paid the applicant's air fare and promised to pay the applicant some money after the assault, but failed to do so. Counsel for the applicant below argued that Vogler's account of the matter had minimised the involvement of his wife and that the person Roberts, mentioned by the prosecutor, was dead. Counsel appeared to suggest that Vogler took the part which the prosecutor had ascribed to Roberts. He also said below that Vogler's car was driven by Mrs Vogler and that Vogler attended at the scene and provided the weapon; a matter which is emphasised by Mr Vasta QC who appeared for the applicant today.

The judge had before him below a victim impact statement which said that the force of the hit fractured not only the skull, but the membrane around the brain, exposing the brain. Some time after the injury the victim had a major operation to his skull and he was off work for a total of eight weeks which, according to him, was a contributing factor to his going bankrupt. He had a fear that he might be assaulted again. The operation to the head was a success, but he was left with a large indentation to his forehead. He said he was very afraid of giving evidence against Kirby and had been threatened by Kirby. He claimed to have received a death threat. He and his wife had left their Gold Coast home, where they lived for many years, in order to protect themselves.

As Mr Vasta emphasised, the applicant was only 27 when he committed the offence. His criminal record includes an assault, for which he was fined in 1980; an assault occasioning bodily harm, for which he was fined in the same year; a further assault in the same year, for which he was fined; what appears to be a minor breaking, entering and stealing in 1983; and an aggravated assault causing bodily harm and threatening with an offensive weapon in 1993, subsequent to the offence with which we are concerned,

The offences I have just mentioned occurred in 1993. The applicant was sentenced to 2½ years imprisonment suspended on his entering into a bond. Mr Vasta QC, for the applicant, concedes that the judge was right to take into account the subsequent offences but, in my view, they would not have had as much weight as previous offences.

In his sentencing remarks the judge described the assault as a cowardly, callous and vicious attack; he referred to the criminal history and to the fact that, in the judge's view, it could not be said that the applicant had co-operated with the police; his Honour mentioned the false alibi to which I have alluded. The judge considered the aspect of deterrence and discussed a case of Bartorello. He took into account the sentence imposed on Vogler. He has imposed a sentence of eight years' imprisonment in respect of the applicant and Mr Vasta QC's principal argument is that if one compares the circumstances of Vogler's involvement with those of the applicant, there is an undue discrepancy.

In the Crown's outline of argument it is said, and it is emphasised by Mrs Clare today, that there was no case against the offenders until Vogler co-operated with the police, and that appears to be so. The Crown's argument is that the applicant was imported as a professional hit man and that, for money, he savagely beat a defenceless man, whom he did not know, and that also appears to be correct.

We have been referred by Mr Vasta QC to the principles which were discussed by the High Court in the case of Lowe [1984] HCA 46; (1984) 154 CLR 606, with respect to manifest disparity and also to the decision of this Court, being a decision to which I was a party, in Del Arco (CA 289 of 1993, judgment delivered on 25 March 1994).

Mrs Clare has reminded us of the decision in Cox (1991)

55 A Crim R 396 and she relied particularly upon the view of Thomas J expressed in that case, being one with which Byrne J agreed, to the following effect:

"It by no means follows that an appeal court will interfere, especially when the consequence of reducing the higher sentence will be two inappropriately low sentences instead of one. As the authorities show, it may sometimes be necessary for an appeal court to take that undesirable course in order to avoid a greater evil, but it is very much the province of the appeal courts to perceive a sufficiently good reason to take such a course."

Mrs Clare has said all, I think, that can be said in favour of Vogler's sentence. It has to be conceded that Vogler took, perhaps, an unusual course; on the material he has placed himself at considerable personal risk and has incurred a gaol sentence by informing the police about this matter. It is undoubtedly right that the judge took into account Vogler's having taken that course in deciding to suspend the sentence which was imposed upon him. However, I cannot avoid the conclusion that the sentence imposed upon Vogler was too light. The question is that which is posed by the dictum of Thomas J in Cox; similar remarks have been made in other cases. If there is such a discrepancy as Mr Vasta QC suggests, then the solution which he advocates is that there should be a substantial reduction in the sentence imposed upon the applicant. The difficulty which I feel about that is, that the sentence imposed upon this applicant was right. Indeed, some judges might have taken a sterner view.

Mrs Clare has spoken about the need for deterrence and the fact that cases of this sort seldom come before the Court. One cannot help feeling that they are likely to come before the Court more often unless this Court takes a harsh view when instances of its occurrence are unearthed. In my opinion, the need for deterrence in the particular case overrides the undoubtedly formidable submissions which Mr Vasta QC has made on behalf of the applicant on the question of disparity. I, myself, would not be prepared to hold that the sentence imposed upon the applicant was manifestly excessive. Indeed, I do not think it was excessive at all, and I would dismiss the application.

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