R v Bryan; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: R v Bryan; ex parte A-G (Qld) [2003] QCA 18

PARTIES: R v BRYAN, David John (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 410 of 2002 DC No 3152 of 2002

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by A-G (Qld)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 5 February 2003

DELIVERED AT: Brisbane

HEARING DATE: 30 January 2003

JUDGES: de Jersey CJ, Williams JA and Cullinane J Separate reasons for judgment of each member of the Court; each concurring as to the orders made

ORDERS: 1. Appeal allowed / 2. Sentence imposed set aside and in lieu thereof order that for the offence of grievous bodily harm the respondent be imprisoned for six years. Further declare that the respondent was in pre-sentence custody for a period of 291 days from 8 February 2002 to 26 November 2002 solely in relation to that offence and that should be taken into account as time served pursuant to the sentence

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM – SENTENCING – where respondent convicted of grievous bodily harm – where lack of remorse shown – where plea of guilty / CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRENCE – where respondent produced knife during fight with complainant – where offence committed in a public place – where unprovoked attack / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where sentenced to four years imprisonment suspended after 12 months with operational period of five years – whether sentence imposed was manifestly inadequate / R v Hoogsaad [2001] QCA 27; CA No 277 of 2000, 9 February 2001, considered R v Swayn [1998] QCA 171; CA No 59 of 1998, 8 May 1998, considered R v King & Morgan; ex parte A-G (Qld) [2002] QCA 376; CA Nos 127 and 128 of 2002, 23 September 2002, considered

COUNSEL: C W Heaton for the appellant A J Kimmins for the respondent

SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant Bell Miller for the respondent

[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams JA. I agree with the order proposed by His Honour, and with his reasons. I wish to add some observations on the applicability of part 9A of the Penalties and Sentences Act 1992.

[2] The learned sentencing Judge was not asked to declare the respondent to have been convicted of a serious violent offence. The schedule to the Penalties and Sentences Act includes doing grievous bodily harm as one of the offences to which part 9A relates. Because of s 161B(3), had the respondent been sentenced to imprisonment for a term of five years or more, a discretion to make such a declaration would have arisen. It did not in fact arise because the learned Judge sentenced the respondent to less than five years imprisonment.

[3] The Crown Prosecutor had not in terms submitted before His Honour for imprisonment for five years or more, referring expressly to cases mentioning a range of two to four years, and one case of five years imprisonment. As the reasons of Williams JA demonstrate, a sentence of the order of six to seven years imprisonment, without the leavening addition of any suspension or recommendation in relation to post-prison community based release, was amply warranted for this crime.

[4] It is unfortunate that the flavour of the Crown Prosecutor’s submission tended to support sentencing at the lower level. Had a sentence of at least five years or more imprisonment been proposed, the question whether a serious violent offence declaration should also be made would necessarily have arisen, because in its nature, this crime was an archetypal “serious violent offence”. Such a declaration has the consequence that the offender must serve at least 80 per cent of the term (s 135(2)(c) Corrective Services Act 2000).

[5] I agree with Williams JA that for offending of this gravity, the respondent could following his plea of guilty have been sentenced to six or seven years imprisonment with a declaration, with the consequence that he would be required to serve at least 4.8 to 5.6 years.

[6] By part 9A introduced into the Penalties and Sentences Act in 1997, the legislature clearly signalled a hardened intolerance of serious violent offending which sentencing courts must be astute to acknowledge and respect. In cases like this one, deterrence, punishment and community denunciation (s 9(1)(a), (c) and (d) Penalties and Sentences Act) will ordinarily assume much greater significance than the personal circumstances of an offender. A declaration would have been warranted.

[7] But in all of the circumstances, with its being an Attorney’s appeal and Counsel for the Attorney not having before us sought a declaration, I consider imprisonment for six years to be the appropriate penalty to be substituted on appeal, so that the respondent will have to serve three years imprisonment before becoming eligible to apply for post-prison community based release (s 135(2)(e) Corrective Services Act).

[8] WILLIAMS JA: This is an appeal by the Attorney-General against a sentence of four years imprisonment suspended after 12 months with an operational period of five years imposed on the respondent after he pleaded guilty to a count of doing grievous bodily harm. The principal submission on behalf of the appellant was that the sentenced imposed, given the circumstances of the offence, was so inadequate, the sentence imposed being outside the scope of a proper sentencing discretion, that this court should on the appeal pursuant to s 669A of the Code impose a heavier sentence. In the circumstances it is necessary to refer in some detail to the conduct of the respondent at the time the offence was committed and also over the ensuing period of approximately four weeks before he was arrested. Conduct in the latter period is relevant because it indicates lack of remorse and otherwise establishes aggravating features of the crime.

[9] The offence occurred at about 1.30 am on New Years Day 2002. The complainant, Guiseppe Cubito, and his girlfriend, Marisa Pezzimenti, had attended a New Years Eve function at the Queensland Performing Arts Complex. On leaving there they (and two others) walked across Victoria Bridge and then traversed the area in front of the Casino walking towards the Queen Street Mall. They were holding hands as they did so. As the group passed the Casino they noticed some males sitting on a concrete wall adjacent to the walkway. The respondent was one; he jumped off the wall, walked towards Cubito and his group, and then either grabbed or pinched Marisa’s buttocks. The respondent was a complete stranger to the complainant and his companions. Marisa told the respondent to “fuck off” and the group kept walking towards the Mall. The respondent followed; the other young men who had been sitting with him on the wall also followed a short distance behind, but there was nothing to establish that they were acting in concert with the respondent.

[10] As the complainant and his friends progressed towards the Mall the respondent said: “What’s wrong with you. Do you want to have a go?” The complainant responded: “You’re pretty tough in front of your mates”. The respondent kept yelling words such as: “I’ll get you. You’re fucked. Come on. Let’s go. Do you want to have a go?” Some racial taunts were also directed towards the complainant.

[11] The complainant and those in his group then crossed George Street and entered the top of the Mall. The respondent continued yelling abuse. The complainant was concerned that they were entering into a rather dark area and he decided to stop and confront the respondent; he said, “Mate, fuck off. Leave us alone.” The response from the respondent was: “Come on, let’s go. Do you want to have a go?” The complainant stated he was not scared of the respondent and again told him to desist.

[12] The respondent then moved towards the complainant and a fight started. It appears that there were mutual kicks and punches delivered. The pair moved closer to George Street whilst that altercation was taking place. The evidence suggests that the complainant was getting the better of the scuffle.

[13] At about that point the respondent was seen to turn around and run down George Street towards Elizabeth Street. It was then that the complainant and onlookers became aware that the complainant had been cut and that there was “blood everywhere”. The complainant was scared that he was going to die. According to an independent eyewitness, Thackeray, the respondent on seeing the blood and the complainant clutching at his chest said: “If you want to fucking help him then call the Ambulance.” He was also heard to say: “I didn’t fucken stab anybody”, and “I’ve got to hide my tattoos before the police get here otherwise they’ll take me for my warrants”. The respondent was then seen to put on a “top” to cover his tattoos.

[14] The complainant was taken by Ambulance to the Royal Brisbane Hospital where doctors recorded three open wounds. The first was an extensive wound of the lower left chest, extending from the left of the sternum to the left of the nipple. The wound extended through skin and muscle into the left chest cavity and was such that the complainant’s heart and lung were visible through the wound. There was a laceration about 10 centimetres long to the upper left arm which extended through the skin and into the muscle, and finally another laceration about three centimetres long also of the upper left arm through the skin and into the subcutaneous fat. Not surprisingly those injuries occasioned the complainant significant pain and discomfort and were described by the doctors as life threatening. The main wound to the chest had missed the internal mammary artery by only about three millimetres. It was also ascertained that there was a laceration to the lung on the lower lobe but the diaphragm was not lacerated.

[15] Because of nerve involvement the complainant still has a number of areas of numbness, particularly in respect of his left lower arm and back.

[16] There is no doubt that if the injury was not treated appropriately it would have caused death.

[17] The respondent was not detained at the scene however security cameras in the Mall contained shots of him, but not of the actual attack.

[18] The respondent’s then girlfriend, Bronwyn Dawson, had also been at the function at the Performing Arts Centre. At about 2.30 am she rang the respondent from there and said: “I’ve just heard there was a stabbing in the Mall” to which the respondent replied: “Hey, boys, there was a stabbing in the Mall, how about that?” Subsequently after another phone call Dawson arranged to meet the respondent. When they did she discovered that the respondent had changed the clothes that he had been wearing when she had seen him earlier on that evening; he was wearing different clothes.

[19] Subsequently on 2 January Dawson saw media coverage of the incident which showed the respondent. She then confronted the respondent and told him she’d seen footage on the news, and that the suspect that had been identified in the footage looked like him, the respondent. She told the respondent she could recognise him from what he was wearing and how he was walking. The respondent then went to his cupboard and removed the clothes that he was shown to be wearing on the news footage. He said: “Fuck it, I’m moving up the Coast. I’m getting out of this shithole”. He then went to Alexandra Headlands. Dawson met him there on 4 January and the respondent said to her: “If I was questioned by the police … to tell the police that what he was wearing was a red polo and navy pants”. Dawson initially declined to agree to that. The respondent then said: “Well, just say that you and I left my home as girlfriend and boyfriend and went to Southbank together, and we came home together as girlfriend and boyfriend”. When police first interviewed Dawson she gave a false account along the lines of what she’d been told to say. On 15 January 2002 police raided the prisoner’s unit and took possession of a pocket knife. It was alleged to be the weapon used. Significantly it needed to be manually opened before the blade was exposed.

[20] Dawson told the respondent she was scared because of the police involvement but he said to her: “Just be staunch and stick by your word. It will be okay. No-one has ever done a statement for me before”. Subsequently on 22 January the respondent confessed to Dawson that “he’d slashed a dude in the Mall on New Year’s Eve.” Some time shortly after that the respondent said to Dawson, “If you stay on my side you’ll be sweet, but if you don’t, and anyone who stands up on that witness stand if this goes to trial, I’ll make sure that something is done to them. I can pay someone $200 worth of heroin and they would do someone over for that”. There was subsequent conversations along similar lines but on 7 February Dawson went to the police and told them the truth.

[21] Defence counsel before the sentencing judge tendered a report from a psychiatrist, Dr Curtis. In that it was recorded that at the time of the incident the respondent was “intoxicated having consumed too much alcohol and cannabis and some smoked heroin”. Nothing more specific about the respondent’s condition was said during submissions, but all that defence counsel said was against the background that at the time the respondent was affected by the illicit substances he had taken. In his report Curtis said that the respondent “expressed shame and remorse about his crime” and that led defence counsel to say to the sentencing judge that he was “instructed to specifically place on record an apology”. Emphasis was then placed before the sentencing judge (and again in this court) on the asserted distinction between stabbing and slashing with the knife. Defence counsel persistently referred to the injury as a “slash wound” and said that “the knife had been used in a slashing motion”.

[22] The respondent has no previous criminal history for violence, but had some minor convictions for property offences. He was born on 8 May 1980 making him 21 at the time of the offence and 22 when he stood for sentence.

[23] It was against that background that sentence was imposed.

[24] The learned sentencing judge noted that at the time the offence was committed the respondent was “adversely affected by drugs”, and said that was “no excuse but it might explain your erratic behaviour after the incident”. He also concluded that the respondent had “shown a lack of remorse throughout, particularly after these events, including an attempt by you to have one witness provide you with an alibi, with some threats towards her in the course of that particular saga”.

[25] The learned sentencing judge then appears to have relied heavily on material placed before him by defence counsel suggesting that, during the period of 291 days the respondent had been in prison prior to sentence, he had “rehabilitated” himself. That observation was based on certificates placed in evidence indicating that the respondent had completed a number of courses whilst in prison, and on the reports of Dr Curtis and the psychologist TD Ryan. The conclusions recorded in those last two reports were largely based on self-serving statements made by the respondent shortly before he stood for sentence.

[26] The learned sentencing judge in determining the sentence which he ought to impose said:

“In this type of savage attack it is difficult to know what to do with someone who has shown that he can rehabilitate, and yet, on the other hand, a deterrent aspect has to be imposed in the sentencing process.

I have had regard to the following decisions: Phan, Court of Appeal 123 of 1997; Nguyen, Court of Appeal 123 of 1997; Greig, Court of Appeal 427 of 1999; Foster, Court of Appeal 431 of 1999; Bain, Court of Appeal 440 of 1999; and Vea, Court of Appeal 220 of 2000.

The general range from those authorities is from two and a half years through to three and a half years with recommendations or suspended sentences in the appropriate cases. Instruments were used from machetes through to golf clubs in those cases. They were referred to by the defence, as was Vea by the Crown.

The Crown also relied upon the Queen v Swayn, Court of Appeal 59 of 1998 where a five year head sentence was given. That resulted in permanent brain damage to the victim, who now suffers from an organic personality disorder. The accused was 22 years of age with a minor criminal history. There was a late guilty plea and there was no remorse. The other case referred to by the Crown Prosecutor who suggested a range of two to four years was d’Arcy, Court of Appeal 214 of 2000. It was a not guilty plea of 34 year old; three and a half years. There were fractures to the ulnar and lacerations to the skull from the use of a pinch bar.

In the decision of Amituanai (1995) 78 ACR 588, the Queensland Court of Appeal suggested that: “There is a need to deter loutish behaviour in the streets by intoxicated young men and to express disapproval of the use of fighting skills that have a known potential for causing serious harm”.

These comments could be applied to someone who carries weapons. The punishment may often depend upon the extent of damage the victim has sustained. That particular principle I apply in the present case, where there is serious violence to another”.

[27] Before this court counsel for the appellant referred to a number of authorities in support of the proposition that the sentence in fact imposed was outside the range of proper sentencing discretion. It will be necessary to analyse some of them. Counsel for the respondent also referred to previous sentences, but in addition made some submissions with respect to the facts which need to be addressed.

[28] Again in this court he emphasised that the almost fatal wounds were caused by the use of the knife in a slashing motion, rather than by stabbing. I fail to see any distinction. It is clear that significant force had to be used in order to inflict the complainant’s wounds. The knife was produced at a time when the respondent, the initial aggressor, was losing the fight. It was necessary for him to manually open the pocket knife before using it. At least three blows were struck with the knife. It is in the circumstances merely an exercise in semantics to endeavour to make any distinction between a slash and a stab.

[29] This was a vicious attack with a weapon upon a stranger. It was gratuitous street violence. It took place in the centre of Brisbane where, particularly on New Years Eve and the early hours of the following morning, it would be customary for people to congregate. However one looks at the circumstances of this case it is one of the worst examples of the offence of doing grievous bodily harm that one could find.

[30] Given the nature and circumstances of the crime, deterrence must be the major factor influencing sentencing. Ordinary citizens must be able to make use of areas such as the Mall, even at night, sure in the knowledge that they will not be savagely attacked. The only way courts can preserve the rights of citizens to use public areas in going about their own affairs is by imposing severe punishment on those who perpetrate crimes such as this.

[31] It is disturbing to note that the use of illicit drugs was to some extent explanatory of the respondent’s behaviour. But in cases such as this that is in no way a mitigating factor; indeed if anything I would regard it as an aggravating factor.

[32] It is difficult, if not impossible, when dealing with the offence of grievous bodily harm to speak meaningfully of a “range” when considering penalty. A great variety of acts may result in the commission of that offence. A single blow with the hand, the negligent use of a dangerous object, excessive force in resisting an attack, and blows struck in a highly emotional situation may all result in the offence being committed. Also the nature of the injuries sustained and the permanent consequences thereof may vary greatly. All of those factors will have some impact in determining the appropriate sentence. There is no doubt, and the learned sentencing judge referred to some, that on occasions sentences in the range of two to four years have been imposed for the offence of doing grievous bodily harm. But that does not mean that other instances of that offence do not call for a sentence beyond that range. Indeed on the schedules placed before the sentencing judge and this court there were quite a number of sentences for grievous bodily harm in the range five years to nine and a half years. Having read the transcript of argument before the sentencing judge I am by no means convinced that counsel for the prosecution contended for a sentence in the range two years to four years for this case. Certainly he did refer to d’Arcy where a range of two years to four years was mentioned by this court for certain circumstances giving rise to the offence of grievous bodily harm. He also made reference to Matthews CA 2 of 2002 where a five year sentence was imposed. Of the cases on the schedule Hoogsaad CA 277 of 2000 and Swayn CA 59 of 1998, where sentences of five years for grievous bodily harm were upheld by this court, give a somewhat better guide as to the appropriate sentence here. Hoogsaad involved a fight between a number of persons who had been drinking at a hotel. A crowbar was used to strike the complainant who was knocked unconscious and suffered significant disabilities. In Swayn no weapon was used. The appellant and his brother stomped on the complainant’s head at a nightclub. Serious cerebral injuries were inflicted.

[33] But of more significance for present purposes is a decision of this court handed down shortly before the respondent was sentenced but which was not made available to the sentencing judge; Queen v King & Morgan (CA Nos 127 and 128 of 2002). There the offenders pleaded guilty to a number of offences including doing grievous bodily harm. It is significant to note that both offenders had serious criminal histories. The attack on the complainant, a middle-aged woman, was irrationally motivated, prolonged and brutal in execution. At the time the offenders were intoxicated by alcohol and drugs. The attack lasted for some hours.

[34] This court in its reasons noted that the offenders were to be sentenced for doing grievous bodily harm but without intent to do so; the offence was deliberate though accepted not to be intentional. The Chief Justice, the other members of the court agreeing with him, said:

“I agree with counsel for the appellant that, in the context of the maximum, the range for this offending would extend substantially beyond six years, with a declaration. In my view, but for the pleas of guilty, each respondent should have been imprisoned for at least eight years, after all mitigating features were taken into account, with a declaration that he had been convicted of a serious violent offence, but two circumstances warrant moderating that back.

First, the pleas of guilty and second, the moderate approach which is appropriate for reasons which have been explained in many cases, where the court is dealing with an appeal by the Honourable the Attorney-General.

In my view, what the court should now do is to add to the sentence of six years imprisonment, in respect of each conviction for grievous bodily harm, a declaration that the offender had been convicted of a serious violent offence.”

[35] Given the need to protect the community from offences such as the present one, given that this was an unprovoked, vicious and cowardly attack upon an innocent passer-by in a public street, and given the use of a knife in such a way as to seriously threaten life a sentence in the range six to seven years was the minimum that could be considered as the head sentence. The circumstances here would often justify the making of a declaration that the offence was a serious violent one, but no such declaration was, or is now, asked for.

[36] The respondent cannot be given significant credit for remorse. The sentencing judge considered there was a lack of remorse and that is the only conclusion reasonably open. The respondent’s conduct in the period between committing the offence and arrest clearly demonstrates that.

[37] There have been some indications of rehabilitation whilst the respondent has been in prison but such a consideration cannot significantly alter what has to be regarded as the appropriate penalty for the crime in question.

[38] The only mitigating factor is a plea of guilty, albeit when there was an overwhelming case against the respondent.

[39] For all of those reasons the sentence in fact imposed was manifestly inadequate and outside the scope of the exercise of a proper sentencing discretion. In those circumstances it is appropriate for this court to intervene on an Attorney’s appeal. The sentence imposed should be set aside and in lieu thereof the respondent should be sentenced to imprisonment for a period of six years. That reflects the degree of moderation customarily associated with the imposition of penalty after a successful Attorney’s appeal.

[40] The order of the court should therefore be:

1. Appeal allowed.

2. Sentence imposed set aside and in lieu thereof order that for the offence of grievous bodily harm the respondent be imprisoned for six years. Further declare that the respondent was in pre-sentence custody for a period of 291 days from 8 February 2002 to 26 November 2002 solely in relation to that offence and that should be taken into account as time served pursuant to the sentence.

[41] CULLINANE J: I agree with the reasons of Williams JA and the order he proposes.