R v Camm [1999] QCA 101

3 This case is similar to R v West[2] in that the question of foreseeability under s 23(1)(b) of the Criminal Code was not in issue at the trial: it was accepted in the way the trial was conducted that if the injuries occurred as outlined by the complainant (that he was thrown or pushed from the building next to stairs which were a metre above a concrete path) then the jury would have inevitably been satisfied that the broken hip was foreseeable. Counsel for the appellant at trial did not request any direction or redirection as to foreseeability from the trial judge; nor was there any cross-examination of witnesses on this point. Like West, this case was one where any issue about foreseeability was only theoretical and not real. In those circumstances, the trial judge is not obliged to direct upon it.

5 The complainant obviously suffered a serious injury although there was no victim impact statement nor an up to date medical report tendered at sentence. The court was told that the complainant required an insertion of a pin and plate in the femur on 27 January 1997 and that following that surgery he was for a time in intensive care. He has a 20 per cent reduction of movement of the left hip. The injury is clearly a significant one for a 56 year old man. The applicant's conduct was very serious and warranted a salutary and deterrent sentence. He showed no remorse either immediately after causing the injury or in his conduct of the trial. On the other hand, he is a 47 year old with no prior criminal history of any relevance. It seems he has been a hard working citizen and has four children aged from 15 to 3 years whom he and his wife support. Whilst the offence is undoubtedly serious, the injuries have arisen from one push or throw in circumstances where the applicant was aggressively awoken from sleep. No weapon was involved.

6 Whilst there are no closely comparable sentences, a review of those placed before this Court and referred to by Fryberg and Muir JJ in their reasons suggest that the sentence imposed by the learned judge below of three years imprisonment suspended after nine months was excessive in all the circumstances. I agree with Fryberg and Muir JJ as to the sentence and orders they propose.

Joint reasons for judgment of Fryberg and Muir JJ, separate reasons of McMurdo P concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. SET ASIDE THE SENTENCE IMPOSED BELOW AND SUBSTITUTE A SENTENCE OF 2 YEARS IMPRISONMENT SUSPENDED IMMEDIATELY WITH AN OPERATIONAL PERIOD OF 3 YEARS FROM 19 NOVEMBER 1998.

CATCHWORDS: CRIMINAL LAW - appeal against conviction for doing grievous bodily harm - application of s.23 of Criminal Code - application for leave to appeal against sentence.

Counsel: Mr A J Glynn SC for the applicant/appellant

Solicitors: Robertson O'Gorman for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

1 The appellant was convicted in the District Court at Roma of doing grievous bodily harm to one Ronald Nethercott on 19 November 1998. The complainant was 56 years of age at the time. The appellant was 47, married with 4 children aged 15, 11, 8 and 3. He had no previous criminal history.

2 The circumstances surrounding the subject offence were as follows. On 25 January 1997 the complainant was employed by the appellant as a caretaker on a grazing property "Hammond Downs" near Windorah. As part of the complainant's terms and conditions of employment, he had the right to reside in a house on the property with his wife and daughter. Prior to 25 January 1997 the complainant with his family left the property for about 2 weeks. Before departing the complainant asked another employee on the property to look after the house in their absence. He gave no permission to anyone else to enter the house. They arrived back at the property on 25 January and found that a person or persons had used the house in their absence and left it in a dirty and untidy condition. The complainant's daughter's bed appeared to have been slept in, dirty utensils were in the kitchen sink, the kitchen bench was dirty and food from the fridge had been consumed. On entering the lounge room, the complainant saw the appellant asleep in his lounge room chair with his boots on the coffee table. An employee named Gordon, also asleep, was sitting on his swag on the lounge room floor. There is a conflict of evidence as to what then occurred.

3 The complainant's version is that he walked up to beside the chair on which the appellant was sitting and quietly remonstrated with the appellant. He said the appellant "... come out of that chair like a tornado straight at me". There was a cabinet against the wall against which the complainant was leaning and the appellant, with a hand on each side of the complainant, forced him against it. When the appellant moved back, the complainant moved away and stood in a doorway from the lounge room to the outside. From the doorway, steps led to the ground approximately a metre below. The steps were at about a 45 degree angle, somewhat steeper than is usually the case. At the foot of the steps, there was a concrete pathway.

4 When the appellant was at the top of the steps an argument occurred about plants at the main station house which the appellant asserted had died through neglect by the complainant. The appellant, during the argument, placed one hand on the complainant's left shoulder, another on his left hip, lifted him and threw him out the door. He landed on the concrete driveway.

5 When the complainant was lying on the driveway, the appellant used crude and abusive language to the complainant's wife and daughter. The appellant went to take off the complainant's left boot as he was lying on the ground whereupon the complainant told him to leave it alone and that if he was not careful "I'll kick your teeth in for you". Shortly after that, the appellant said "You're sacked".

6 In cross-examination, he said that when the appellant "stepped away from me off the cabinet, and (I) walked around him and went and stood right on the top step ...".

7 The complainant's wife gave evidence to the effect that the complainant was pushed, the appellant's hands being positioned at about the complainant's shoulders at the time. She said that after the complainant landed on the ground he was screaming with pain. The appellant went up to him and asked him to get up. When the complainant said that he could not, the appellant told him that he was sacked.

8 The complainant's daughter gave evidence about her father being pushed up against the cabinet and then pushed down the stairs. She said that before the push the complainant and the appellant were having an argument.

9 The witness Gordon said that he and the appellant were asleep when the complainant entered the lounge room. His version of the incident was that a heated altercation took place with the complainant and the appellant both using strong and abusive language. The complainant told the appellant that he could "stick your job up your fucking arse". When he and the appellant went to assist the complainant, they were told to "fuck off". Nevertheless he did move him back into the shade. He did not see the application of force by the appellant which caused the complainant's fall.

10 The complainant suffered a fractured left hip in the fall. Part of the medical treatment received by him was the insertion of a pin and plate in the femur on 27 January 1997. There were complications arising out of that operation which led to the complainant being placed in intensive care. As at June 1997 the complainant had a 20% reduction in the range of movement of the left hip. No medical evidence was given at the trial or upon the sentencing hearing. The appellant formally admitted that the complainant's injuries amounted to grievous bodily harm.

11 On the hearing of the appeal, the appellant's counsel sought and was given leave to substitute the following ground of appeal for the grounds raised in the notice of appeal -

"The learned trial judge erred in directing the jury that there was `no suggestion ... of excuse': his Honour should have directed the jury to consider whether the broken hip suffered by the complainant was an event which occurred by accident."

The appellant's argument in this regard was as follows -

"`Accident' is raised on the facts of the case by the circumstances of the complainant's suffering injury. The Appellant propelled the complainant from a height of about one metre to the concrete path. The jury should have been directed to consider whether the Appellant intended or foresaw, or whether an ordinary man would reasonably foresee, that the complainant would suffer a broken hip as a consequence of the Appellant's propelling the complainant out the door. (R v Taiters CA 310/95; R v Van den Bemd [1995] 1 Qd R 401 at 404)

What must be foreseeable is not grievous bodily harm generally, but the injury suffered by the complainant."

12 Section 23(1) of the Criminal Code relevantly provides -

"Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for -

(a) an act or omission which occurs independently of the exercise of the person's will; or

The appellant expressly disclaimed reliance on the "first limb" of the section.

13 In R v Taiters (supra) after reference to Van den Bemd [1995] 1 Qd R 401, it was said in the judgment of the Court -

"It should now be taken that in the construction of s.23 the reference to `act' is to `some physical action apart from its consequences' and the reference to `event' in the context of occurring by accident is a reference to `the consequences of the act'."

Applying that construction of s.23 to the events in question, the `act' was the pushing of the complainant by the appellant and the `event' was the injury to the complainant's hip which constituted the grievous bodily harm. R v Van den Bemd was a manslaughter case. In the judgment of the Court, it was said at 405 that -

"The test of criminal responsibility under s.23 is not whether the death is an `immediate and direct' consequence of a willed act of the accused, but whether death was such an unlikely consequence of that act an ordinary person could not reasonably have foreseen it."

The relevant test, stated in that fashion, admits of only one answer on the facts earlier narrated. The complainant was thrown or pushed with force out of a doorway a metre above ground level. There was a steep flight of steps outside the doorway and a concrete path at the foot of the steps. In those circumstances, the possibility of the complainant's suffering a broken hip is something which an ordinary person would reasonably have foreseen. It was far from being an unlikely consequence of the appellant's acts. In our view, the trial judge did not err in failing to direct as to the possible application of s.23. No request for such a direction was made by the appellant's counsel at the trial. We do not find that surprising in the circumstances.

15 We turn now to the application for leave to appeal against sentence. The appellant has been in prison since sentenced on 19 November 1998. He was sentenced to 3 years imprisonment, such sentence to be suspended after 9 months. The Crown sought to uphold the sentence by relying principally on sentences imposed in the case of Amituani [1995] QCA 80; (1995) 78 A Crim R 588 and R v Field C.A. No. 324 of 1996, delivered 18 October 1996.

16 In Amituani the applicant for leave to appeal was convicted on his own plea of guilty of one count of doing grievous bodily harm and sentenced to 3 years imprisonment with a recommendation that he be eligible for release on parole after serving 9 months of the sentence. He was a 26 year old New Zealander of Samoan descent with some proficiency in the martial arts. He had no prior criminal convictions. The applicant become involved in a fracas at a taxi rank in the early hours of the morning. He was struck by a person, chased after him, but lost contact with him. He then kicked the complainant in the head causing him to fall backwards and strike his head on the bitumen surface of the road. The complainant suffered severe brain damage. That case is distinguishable from the present both in the degree of the violence offered by the offender and in the extent of the injury sustained by the complainant.

17 In Field the 21 year applicant unsuccessfully sought leave to appeal against a sentence of 2½ years imprisonment for an offence of doing unlawful grievous bodily harm. The applicant, who was 21 years of age at the time of the events in question, entered the property of the 42 year old complainant. Without provocation, the applicant and another person pulled the complainant to the ground and caused him some injury. The applicant went to depart but when the complainant stood up, he ran back, punched him in the face and knocked him to the ground. He then continued the assault, leaving only when a neighbour stated that he had telephoned the police.

18 The complainant underwent an operation to have a plate inserted in the bone underneath his right eye and there was some prospect of further surgery being required. The plaintiff has been generally unwell since the time of the assault, has lost 10 kg, has trouble sleeping and suffers recurring headaches and double vision which affects his ability to drive a motor vehicle. The sentencing judge described the attack, variously, as "cowardly" and "totally unprovoked".

19 Those circumstances are also distinguishable from the present in that the violence was premeditated and sustained. By way of contrast the complainant's actions in this case were unpremeditated. The complainant was disturbed while sleeping and immediately became angry. The probabilities are that there was an altercation between the appellant and the complainant which led to the spontaneous act of violence which caused the complainant's fall.

20 Mr Glynn SC, who appeared for the appellant, referred to a number of cases which tended to suggest that the sentence imposed on the appellant was outside the permissible range. They were R v Pop C.A. 549 of 1994, delivered 15 March 1995; R v Hegarty C.A. 482 of 1993, delivered 11 March 1994; R v Elkington C.A. 33 of 1998, delivered 27 February 1998; and R v Silvester C.A. 101 of 1998, delivered 5 June 1998. We do not propose to set out here an analysis of the facts in each of those cases. In Elkington the 21 year old applicant with no previous criminal history was sentenced to 4 months imprisonment to be followed by 2 years probation for unlawfully doing grievous bodily harm by striking the complainant a single blow to the area of his cheek. The blow caused "serious injuries which required surgery and a number of days in hospital". The applicant was unsuccessful in his appeal against sentence.

21 In Silvester, the applicant broke the complainant's jaw in two places causing her to suffer permanent paresthesia to her left lower face and lip. The appellant who had been a boxer had been drinking. He was offered little provocation by the complainant but he knocked her to the ground and when she got to her feet, punched her again in the jaw.

22 McPherson JA, with whose reasons the other members of the Court agreed, endorsed the conclusion of the sentencing judge that the offence, although unpremeditated, was made more serious because more than one blow was struck. He expressed the conclusion that the sentence of 18 months imprisonment was "plainly within the range and cannot be considered excessive".

23 In our view, the sentence imposed on the appellant for his act of heedless aggression was outside the permissible range, having regard to the background circumstances which we have narrated. We would grant leave to appeal, set aside the sentence and substitute a sentence of 2 years imprisonment suspended immediately with an operational period of 3 years from 19 November 1998.

[1] CA310 of 1995, unreported, delivered 16 July 1996.

[2] CA288 of 1996, unreported, delivered 26 November 1996.