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[2014] QCA 276
Court of Appeal (Qld)
2014-11-07
Muir and Fraser JJA and Mullins J, Separate reasons, for judgment of each member of the Court, each concurring as to the order, made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Castle; Ex parte Attorney-General (Qld) [2014] QCA 276
PARTIES: R v CASTLE, Dylan Bradley (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S: CA No 138 of 2014 / DC No 1879 of 2013
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 7 November 2014
DELIVERED AT: Brisbane
HEARING DATE: 9 October 2014
JUDGES: Muir and Fraser JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of causing grievous bodily harm and one count of serious assault – where the respondent received a head sentence of four and a half years imprisonment and will be eligible for parole after serving 18 months – where the appellant argued the sentence was manifestly inadequate because the head sentence and the custodial period before parole eligibility were both too short – where the appellant argued the sentencing judge should have made a serious violent offence declaration or otherwise postponed the parole eligibility date – whether the sentence was manifestly inadequate / Corrective Services Act 2006 (Qld), s 182(2) / Penalties and Sentences Act 1992 (Qld), s 160C(5), s 161B / Barbaro v The Queen (2014) 88 ALJR 372; [2014] HCA 2, considered / House v The King (1936) 55 CLR 499; [1936] HCA 40, cited / Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited / Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited / R v Anning [2008] QCA 161, cited / R v Bolton; Ex parte Attorney-General (Qld) [2014] QCA 128, followed / R v Craigie [2014] QCA 1, considered / R v Cullen & Hutchins; Ex parte Attorney-General (Qld) [2012] QCA 222, cited / R v Dillion; Ex parte Attorney-General (Qld) [2006] QCA 521, considered / R v Fisher (2008) 189 A Crim R 16; [2008] QCA 307, considered / R v Green [2013] QCA 24, cited / R v Kinersen-Smith & Connor; Ex parte Attorney-General (Qld) [2009] QCA 153, cited / R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited / R v Tupou; Ex parte Attorney-General (Qld) [2005] QCA 179, considered / R v Van Der Zyden [2012] 2 Qd R 568; [2012] QCA 89, followed / R v Verheyen [2008] QCA 150, cited
COUNSEL: A W Moynihan QC, with S J Bain, for the appellant / J J Allen with L D Reece for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Legal Aid Queensland for the respondent
MUIR JA: I agree that the appeal should be dismissed for the reasons given by Fraser JA.
FRASER JA: On 2 May 2014 the respondent was convicted on his pleas of guilty of offences committed on 1 July 2013 of causing grievous bodily harm and of serious assault. He was sentenced to four and a half years imprisonment for the grievous bodily harm offence. A concurrent term of three years imprisonment was imposed for the serious assault offence. The sentencing judge declared that the period of 305 days during which the applicant had been in custody awaiting sentence from 2 July 2013 to 2 May 2014 was imprisonment already served under the sentence. It was ordered that the date the respondent would be eligible for parole was fixed at 2 January 2015, when the respondent will have served 18 months, or one-third, of the head sentence.
The Attorney-General has appealed on the ground that the sentence is manifestly inadequate. It was argued on his behalf that the head sentence and the custodial period before eligibility for parole were both too short, and that the sentencing judge should have made a serious violent offence declaration (thereby deferring the period before eligibility for parole until after the applicant has served 80 per cent of the term of the head sentence) or an order deferring eligibility for parole until a date which is substantially later than the date fixed by the sentencing judge.
Circumstances of the offences
The circumstances of the offences were set out in an agreed schedule of facts. The complainant in the grievous bodily harm offence was a 73 year old man, Mr White. The 64 year old complainant in the serious assault offence was Mr White’s brother-in-law, Mr Law. They did not know the respondent. On 1 July they travelled together from Hervey Bay to Brisbane where Mr Law was to receive treatment for cancer on the following day. Whilst they were having a pre-dinner drink at a hotel bar, the respondent walked past them a few times and stared at them. After the complainants had finished their drink and gone to the beer garden to order a meal, the respondent walked past them again about eight or nine times. Shortly before 8.00 pm the respondent went to the complainants’ table and made a remark to the effect that the complainants were too old to be in a hotel. Mr Law replied that he did not think so. Subsequently the complainants noticed that the respondent kept staring at them whilst they ate their meal and watched a football game on television. The complainants left after the game finished. CCTV footage showed that the respondent followed the complainants. He was beside them as they exited the hotel.
What followed was captured on CCTV footage which the Court viewed. Immediately upon the complainants walking out of the hotel the respondent, with no warning, hit one of the complainants in the head and pushed him and the other complainant to the ground. The respondent then kicked one of the complainants in the head about seven times. When that complainant tried to sit up, the respondent punched him in the head three or four times. The respondent moved across to the other complainant and kicked him twice to the side of his head. The respondent then walked away. The CCTV footage shows a different man arriving at the scene and looking at the complainants, who were lying prone on the ground as the respondent had left them. A woman is also shown arriving at the scene. The respondent then walked back and aimed another kick to the side of the head of one of the complainants before again walking away. It is apparent from the CCTV footage that at least some of the blows and kicks which the respondent landed were aimed and heavy. That is particularly obvious in relation to the last kick which the respondent administered to the head of the one of the complainants. The savagery and number of blows and kicks in the attack made it seem very prolonged. The CCTV footage records that it occupied about 30 seconds.
The schedule of facts records statements by Mr Law that, after he had felt something “crack” into the back of his head and he had fallen to the ground, he rolled onto his hip. That hip had been replaced in 2007 and it gave in. Mr Law felt immense pain in his left cheekbone and eye socket after two or three hard kicks to the left side of his face. He subsequently felt another four or five kicks. Some kicks were so hard that they caused bleeding on his hands and forearms which he had covered over his face. Mr Law recalled that the respondent kicked him in the head again after Mr Law had tried to help his brother-in-law. Mr White recalled taking a couple of steps on to the street and then lying on the ground. The respondent kicked him several times in the facial area and body. Mr White tried to cover his face with his arms.
The respondent’s personal circumstances
The respondent was 24 years old when he offended and 25 years old when he was sentenced. He had been employed in concreting and labouring, and before then he had trained for one or two years as a footballer under a contract he obtained in Brisbane when he was 16 years old. He had a young son who lived with his mother in Toowoomba. He had a criminal history of offending between 2007 and 2012. He had committed various public nuisance offences for which he had been fined or given probation. The prosecutor told the sentencing judge that four of the public nuisance offences committed by the respondent related to the respondent fighting other people and in the common assault offence the respondent threw a box of paper at a police officer whilst the respondent was in custody. The unlawful stalking offence concerned threats by the respondent to a night club bouncer, including a threat to the bouncer’s life and the respondent shaping up to fight the bouncer. The respondent was dealt with in the Magistrates Court in June 2012 for a series of offences which included public nuisance offences, an unlawful stalking offence, and one offence of common assault committed in the middle of 2012. He was sentenced to six months imprisonment for the unlawful stalking offence and to lesser concurrent terms for the other offences, with a parole release date after two months. According to a psychiatric report, the respondent’s public nuisance charges mostly occurred at pubs and clubs when the respondent was intoxicated with alcohol and illicit substances. A report by Queensland Corrective Services indicated that the respondent had reported as directed on all occasions, had not contravened his parole, had maintained stable full-time employment for the majority of the period of parole, and was deemed suitable for further community based supervision.
The respondent did not recall the offences because he was intoxicated with alcohol and methamphetamine at the time. It was submitted on his behalf at the sentence hearing that his drug abuse was triggered by the death of his father when the respondent was 21 years old. A psychiatrist expressed the opinion that at the time of the offences the respondent suffered from depressive symptoms as part of a grief reaction following the diagnosis of the respondent’s mother with terminal cancer, and that in that context the respondent’s use of alcohol and methamphetamine escalated. The psychiatrist considered that the respondent was deprived of the capacity to know not to do the acts and to reason with a moderate degree of sense of composure about the offences but the deprivation was significantly contributed to by the respondent’s intoxication and he was not of unsound mind at the time of the offences. The respondent had lost his job as a concreter in the weeks before the offences.
References by the respondent’s sister and brother spoke well of the respondent as a person and as a worker. The sentencing judge accepted that when the respondent was sober and not using drugs he was a quiet and decent person. He had prospects of employment upon his release from prison and had showed signs of self-improvement whilst in custody. The sentencing judge accepted that the respondent entered early pleas of guilty, whilst noting that the prosecution case against him was very strong. The sentencing judge took into account that the pleas of guilty saved the State time and money.
Sentencing remarks
The sentencing judge referred to the circumstances of the offences and the respondent’s personal circumstances. His Honour observed that the respondent was a big man who had brutally attacked the complainants without any provocation. The complainants were vulnerable and the respondent’s infliction of forceful kicks on them made the sentencing judge wonder why they did not suffer much greater damage. The respondent attacked the complainants knowing that they were elderly men. There would be no reason for the respondent to think there may not be some incapacity or illness, although the respondent did not know that Mr Law was suffering from cancer. The sentencing judge accepted that to some extent the respondent’s intoxication and abuse of substances might be related to a grief reaction he had upon the death of his father in June 2012 or the death of his mother in August 2013, but noted that the respondent’s history of violence commenced well before those times. The respondent had not taken the opportunity to get professional help even though he was well and truly put on notice over the years that he had a propensity to violence when intoxicated by alcohol or illicit substances. The respondent could not escape responsibility for his actions by his voluntary intoxication.
The sentencing judge regarded this case as a more serious example of violent offending than the offending in R v Craigie [2014] QCA 1, in which the Court refused an application for leave to appeal against an effective sentence of imprisonment of four years with a minimum non-parole period of about 17 months.
The parties’ submissions
The appellant submitted that the sentence was manifestly inadequate. In support of that contention the appellant referred to the aggravating features of the offences: after the respondent had harassed and intimated the complainants during the evening, he had cowardly and viciously set upon them both; the complainants were vulnerable to the attack because it came without prior warning, it was a violent attack, and it was launched by the relatively large and youthful respondent upon the older, unprepared complainants; the assaults were prolonged; the respondent persisted in attacking the complainants when they were on the ground; the respondent delivered heavy, aimed blows to the complainants’ heads; the respondent returned to the attack after having initially left the complainants and after bystanders had arrived; the respondent callously left the complainants lying on the street with apparently serious injuries; there was no provocation or rational justification for the respondent holding a grievance towards either complainant; the respondent committed offences against two men at the same time, rather than the more usual case in which an offender assaults only one person or engages in a series of assaults against different people at different times; these offences occurred in a public place in the community; the respondent’s previous convictions should have been treated as aggravating factors under s 9(10) of the Penalties and Sentences Act 1992; as the sentencing judge found, the respondent had been put on notice of his “propensity to violence when intoxicated” but instead of getting professional help he had turned to alcohol and illicit substances; and the respondent’s criminal history showed that retribution, deterrence, and the protection of society were relevant as indicating the need for a severe penalty.
The appellant argued that the sentence was made manifestly inadequate by inadequacy of the term of imprisonment and in the length of the custodial period before the respondent will be eligible for parole. In the latter respect, the appellant argued that the circumstances of the offences and the respondent’s history of assaults in the community enlivened the discretion to postpone the respondent’s eligibility for parole in one of two alternative ways. Firstly, the sentencing judge might have declared that the respondent had been convicted of serious violent offence under Penalties and Sentences Act 1992, s 161B. The effect of such a declaration would be to defer parole eligibility until after the respondent had served 80 per cent of the term of imprisonment: Corrective Services Act 2006, s 182(2). Secondly, and in the alternative, the appellant argued that it was open to postpone eligibility for parole to ensure a proper sentence: R v Assurson (2007) 174 A Crim R 78. In that case, Williams and Keane JJA, and Mullins J (who dissented to the result), referred to the approval in R v McDougall and Collas [2007] 2 Qd R 87 of the proposition that eligibility for parole may be postponed under s 160(5) of the and s 184(3) of the 2006 for “good reason”.
Consideration
The offences committed by the respondent were listed in the Schedule 1 of the Penalties and Sentences Act 1992 and the respondent was sentenced to a term of imprisonment. Section 161B of that Act confers a discretion to declare that each such offence was a serious and violent offence. As the appellant acknowledged in argument, ordinarily a declaration should not be made unless the offending involved a more than usually serious or violent example of the offence in question so that the offending could be seen to be outside the norm: R v McDougall and Collas [2007] 2 Qd R 87. I accept that it would have been open to the sentencing judge to find that, in all of the circumstances, having regard particularly to the cumulative effect of the serious features of the offending to which the appellant referred, the offences were more than usually serious examples of such offences. If the sentencing judge had made such a finding, his Honour might have made the declaration or extended the parole eligibility date. In relation to an order of the latter kind, the sentencing judge might also have taken into account that the respondent’s plea of guilty was entered in the context of an overwhelming Crown case. However these conclusions are not sufficient to justify the Court in interfering with the sentence.
A decision by a sentencing judge about a declaration or parole eligibility date involves the exercise of a judicial discretion. The Court is empowered to intervene only if the sentencing discretion miscarried, either by specific error (such as acting upon a wrong principle, mistaking the facts, taking into account irrelevant circumstances or failing to take into account relevant circumstances) or by imposing a sentence which is “unreasonable or plainly unjust” such as to demonstrate that the sentencing discretion must have miscarried even though no specific error can be identified: House v The King (1936) 55 CLR 499 at 505. The appellant’s contention that the sentence without the declaration, or without an extended parole eligibility date, is manifestly inadequate invokes the last category of error. In deciding whether this Court should intervene on that basis, it is relevant that the prosecutor did not make any submission to the sentencing judge that the discretion to make a serious violent offence declaration or to defer parole eligibility was enlivened in the circumstances of this case. Such a submission would not have been inconsistent with the majority decision in Barbaro v The Queen (2014) 88 ALJR 372 at 379 [39] that it is not part of the prosecution’s role “to proffer some statement of the specific result which counsel then appearing for the prosecution… considers should be reached or a statement of the bounds within which that result should fall”. The majority held (at 380 [43]) that a “stating the bounds of the available range of sentences… states no proposition of law”. Those passages in Barbaro do not comprehend a submission that upon the uncontroversial facts of a particular case the sentencing judge is empowered to make and might consider it appropriate to make a declaration or otherwise to defer parole eligibility under the applicable statutory provisions. The decision in did not preclude the prosecutor from making such a submission.
“As in R v Assurson [(2007) 174 A Crim R 78], the defence was thus not afforded any opportunity to make submissions on the subject of whether there was any factual basis for a serious violent offence declaration or other order effectively postponing his release. In the ordinary course, the Crown will be held to the position it has taken at first instance. [See, for example, the discussion in R v DBC; ex parte A-G (Qld) [2012] QCA 203.]
Counsel for the appellant here acknowledged the difficulty inherent in a Crown appeal where the sentence imposed was that advocated for by the prosecutor. He adverted to a passage from this court’s judgment in R v Henderson*; Ex parte Attorney-General (Qld)* [[2013] QCA 63 at [51]]:
‘It is only in an exceptional case that this Court will intervene to increase a sentence to a level higher than that sought by the prosecutor at first instance. Usually a party is bound by his conduct of a case at first instance. However, the ultimate responsibility for the imposition of an appropriate sentence rests with the sentencing judge rather than the prosecutor, and this Court will intervene where the sentencing judge failed to appreciate the seriousness of the offending or it is necessary to maintain public confidence in the administration of justice.’”
The sentencing judge plainly understood that the respondent’s offending was very serious – the sentencing remarks referred to “the forceful and ugly nature of the attack” and to the respondent having “brutally attacked” the much older and “entirely invulnerable” complainants, including by “forceful kicks… being repeatedly inflicted on the complainants …”. On the other hand, some features of the offending suggested that the offending was less serious than in many other examples of these offences which come before the courts; in particular, the respondent committed the offences alone rather than with co-offenders, he did not use a weapon, and the complainants’ injuries were fortunately much less serious than those which have been seen in many other cases. As to any extension of the parole eligibility date, in light of the sentencing judge’s finding that the respondent was genuinely remorseful and had entered an early plea of guilty, it could not be said that the parole eligibility date after one third of the head sentence was unconventional even in the context of the overwhelming Crown case. It was not submitted for the appellant that the sentencing judge failed to take into account any relevant circumstance. In these circumstances, in a case in which the prosecutor made no submission about a serious violent offence declaration or the deferral of parole eligibility, it seems very clear that there is no sufficient basis for this Court to conclude that, there was an error justifying appellate intervention in the sentencing judge’s omission to make a declaration or defer parole eligibility.
Nor is this a case where the Court’s intervention is required to maintain public confidence. The sentencing decisions upon which the appellant relied do not dictate a conclusion that the sentence was manifestly inadequate. The most relevant of those decisions is R v Tupou; ex parte Attorney-General (Qld) [2005] QCA 179, in which the Court varied a sentence for grievous bodily harm of three years imprisonment suspended after nine months for an operational period of three years by increasing the period before suspension to 15 months. de Jersey CJ, with whose reasons Mullins J agreed, made it clear that the sentence imposed on appeal was moderated in accordance with the approach then prevailing in an Attorney-General’s appeal. (That approach is no longer adopted in Queensland as of course: see R v Lacey; ex parte A-G (Qld) [2009] QCA 274 at [150], [153], and [270]). de Jersey CJ observed that a head sentence of three to four years imprisonment was appropriate and that, having regard to R v Bryan; ex parte A-G (Qld) [2003] QCA 18 (in which there was no suspension or recommendation as to post-prison community based release) such a sentence level took into account the plea of guilty.
The respondent relied upon a statement by Holmes JA in R v Kinersen-Smith & Connor; ex parte A-G (Qld) [2009] QCA 153 to the effect that the Chief Justice’s remarks in were concerned with the circumstances of that case, so that could not dictate the appropriate sentence in all cases of grievous bodily harm in public places at night. As Holmes JA also remarked, however, the result in does offer guidance as to an appropriate sentence in similar cases.
Proposed order
I would dismiss the appeal.
MULLINS J: I agree with Fraser JA.
R
Castle; Ex parte Attorney-General
(2014) 88 ALJR 372
(1936) 55 CLR 499
(1999) 195 CLR 665
(2005) 228 CLR 357
(1994) 181 CLR 295
(1998) 166 CLR 59
When the respondent left the scene he was followed by a member of the public and the manager of the hotel, both of whom telephoned police. The respondent was found by police nearby and subsequently arrested. DNA matching that of Mr Law was found on one of the respondent’s shoes. He declined to be interviewed.
The victim of the serious assault offence, Mr Law, was hospitalised and released from hospital on the following morning. His cancer procedures scheduled for that day had to be cancelled and were delayed for a month. CT scans revealed a fracture to his left zygoma (cheek bone), lateral wall of the orbit and lateral wall of the maxillary sinus. The fracture was minimally displaced with no loss of sensation. He sustained bruising to the left periorbital region (eye socket), multiple abrasions, mid-line cervical tenderness on palpation, left shoulder tenderness, hip tenderness, and left orbit tenderness on palpation. The treating doctor stated that Mr Law’s injuries would have caused moderate pain and discomfort at the time. Mr Law was discharged from hospital without further treatment. In his victim impact statement he stated that he was having ongoing treatment for restricted shoulder movement, headaches, giddy turns, and a sensation of fluid behind the eardrum. He was constantly looking over his shoulder when he was in public in fear of another attack.
Mr White was the victim of the grievous bodily harm offence. He sustained a laceration to the left ear requiring sutures, a small left sided subdural haematoma (blood clot), left sided tripod fracture with associated fracture of the anterior and lateral maxillary sinus walls, pterygomaxillary (vertical) fissure and left hard palate, a slightly displaced rib fracture, and possible fracture of another rib, left cheek paresthesia (pins and needles), superficial laceration to the left forehead, and left periorbital bruising. He remained in hospital until the afternoon of the following day. Following two attendances at the hospital for review, about a fortnight after the offence Mr White was admitted as an outpatient to the hospital and operated on for an open reduction of the left orbito-zygomatic complex with internal fixation at the fracture sites. In this two part operation, the bone was put back into place and titanium plates and screws were affixed to the bone and left there. Mr White was discharged on the day following the operation. If the injury had not been treated it would likely have resulted in permanent numbness to the left side of the cheek and permanent double vision. In a victim impact statement Mr White stated that the cracked rib had caused him excruciating pain for many weeks, the blood clot in his brain had restricted him from driving for six weeks, and he suffered headaches, nightmares, flashbacks, and sleepless nights. He had become fearful in crowded situations. As a result he was afraid of going to public places.
The appellant argued that a declaration should have been made or the parole eligibility date should have been deferred in light of the conduct by the respondent leading up to the offence, the prolonged nature of the assaults, that the respondent returned and continued the assault after he had earlier left the scene and bystanders had intervened, the fact that there were two victims of the respondent’s offences, the vulnerability of the victims to the respondent’s violent, surprise attack upon them, the age of the victims and the illness of one of them, and the irrational motivation for the offences.
The appellant and respondent referred the Court to sentencing decisions which were submitted to support either parties’ contentions in the appeal. The respondent emphasised the differences between the present case and sentencing cases upon which the appellant relied and the importance in the administration of criminal justice of the discretion committed to sentencing judges in fixing upon appropriate sentences. The respondent pointed out that a mere disagreement about the particular sentence which was imposed is not sufficient to justify this Court in allowing an appeal against sentence: Everett v The Queen (1994) 181 CLR 295 at 306 – 307. The respondent argued that the Court should not accede to the appellant’s invitation to make a serious violent offence declaration on appeal in circumstances in which the prosecutor had not submitted to the sentencing judge that a serious violent offence declaration could or should be made. The respondent also argued that the parole eligibility date fixed by the sentencing judge was appropriate and conventional. Whilst accepting that the offences were serious, the respondent referred to the absence of yet more serious features, such as the use of a weapon and the commission of offences in company with other offenders. The behaviour of the respondent in the period leading up to the offences did not justify a conclusion, which the sentencing judge did not draw, that the offences were premeditated or pre-planned, and similar behaviour had been observed in other cases. The respondent submitted that cases in which offences against more than one victim were committed on different occasions, rather than on the same occasion as here, might be regarded as being more serious. The respondent argued that the circumstance that the respondent resumed his offending after having stopped did not make the case any more serious than a case in which an offender continued an assault without any break in the violence until the offender was otherwise stopped. The injuries sustained by the complainants were not as serious as injuries in some of the sentencing decisions upon which the appellant relied.
The consequences of the prosecutor’s failure to make such a submission were recently identified by Holmes JA, with whose reasons I and Gotterson JA agreed, in R v Bolton; Ex parte Attorney-General (Qld) [2014] QCA 128 at [20] – [21]:
I accept that the respondent’s offences merited a more severe punishment than in Tupou. In that case, the 18 year old offender got out of a taxi and, without warning, punched a much smaller 25 year old man to the ground and then punched him a second time, causing grievous bodily harm. That may be contrasted with the respondent’s more vicious and prolonged attack on Mr White, which started with a blow that knocked Mr White to the ground and was followed by several kicks to his face and body. In both cases the offenders behaved callously by leaving the scene, but the respondent’s conduct in continuing his assaults after leaving and then returning to the scene, to kick one of the complainants, by which time two other people had arrived at the scene apparently to come to the complainant’s aid, marks the respondent’s offending as being more callous even than the conduct of the offender in Tupou (who was restrained from persisting in his attack). The complainant in Tupou had cerebral palsy, but it was not suggested that the offender knew as much, whereas the respondent obviously appreciated that his victims were much older than him and would be especially vulnerable to his surprise attack. The nature and consequences of the injuries in Tupou (a depressed fracture of the right cheek, a fracture to the left cheek, a broken nose, a fractured jaw, and loosened teeth) could not be regarded as being more serious than the nature and consequences of the injuries sustained by Mr White, which extended beyond facial fractures to a blood clot in his brain and rib injuries.
Importantly, it was necessary for the sentence to include a component for the respondent’s additional criminality in the offence of serious assault against Mr Law (see R v Van Der Zyden [2012] QCA 89 at [107]), whereas the offender in Tupou was guilty only of the grievous bodily harm offence against one complainant. In this respect, however, it is necessary to bear in mind that the accumulation of sentences for discrete offences requires attention to the “totality principle. In Van Der Zyden, Muir JA, with whose reasons de Jersey CJ and Margaret Wilson AJA agreed, went on (at [108]) to quote a passage from the High Court’s judgment in Mill v The Queen (1998) 166 CLR 59 at 62 – 63 which referred to the necessity for sentencing judges to ensure that a sentence imposed for more than one offence is appropriate for “the totality of the criminality behaviour” and that “an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed…”. In this case, the sentence for the grievous bodily harm offence of four and a half years imprisonment with eligibility for parole after one-third of that term included a component for the respondent’s criminality in the serious assault. In light of the “totality principle”, error could not be inferred merely by demonstrating that that this sentence was less severe than a sentence which merely added together periods of imprisonment separately fixed in relation to each offence.
As to the offenders’ personal circumstances, whilst the offender in Tupou was burdened by the aggravating circumstance that he was subject to a 12 month good behaviour bond when he committed his offences, the respondent’s criminal history was worse because he had previously been imprisoned. The offender in Tupou had not previously been imprisoned but had been fined for obstructing a police officer and committing a public nuisance offence and placed on the good behaviour bond for behaving in a disorderly manner.
Bearing in mind that the sentence on appeal in Tupou was moderated in accordance with the then prevailing practice and that the respondent’s offending was more serious overall for the reasons I have given, in comparison with the sentence of three years imprisonment suspended after fifteen months in Tupou the respondent’s head sentence of four and a half years imprisonment seems at least adequate and the respondent’s minimum custodial period of eighteen months seems relatively lenient. As to the latter component, however, the respondent’s release on parole is not guaranteed to occur on the parole eligibility date, whereas the offender in Tupou was entitled to be released on the specified date. Furthermore, the apparent leniency in this component of the sentence must be assessed in the context of the “totality principle” and the relatively longer head sentence. Taking all of these matters into account, the decision in Tupou supports a conclusion that the sentence overall is not so lenient as to justify the conclusion that it is manifestly inadequate.
Senior counsel for the appellant cited R v Fisher [2008] QCA 307, in which a sentence of four years imprisonment with a parole eligibility date at the one-third mark was held to be not manifestly excessive. The seriousness of that offender’s grievous bodily harm offence was similar to that of the respondent’s similar offence; that offender violently attacked the complainant without warning, after the offender punched the complainant a number of times and the complainant had subsequently been helped to his feet the offender again attacked the complainant (including by kicking him when he was again on the ground), and that complainant suffered facial fractures and rib injuries. The offender was only 19 years old and his history did not include any violent offences. In one respect that offence was more serious; the offender committed it in company with others. In a different respect it was less serious; there was only one complainant. Accepting that on balance the respondent’s offending merits a more severe punishment, his sentence is more severe both in the length of the term of imprisonment and in the minimum custodial period. Of particular relevance here is that Atkinson J, with whose reasons Keane JA and Jones J agreed, applied previous decisions (R v Dillon; ex parte A-G (Qld) [2006] QCA 521, Tupou, and R v Verheyen [2008] QCA 150) in which head sentences for broadly similar offending were analysed and found to reveal a range of sentences between three and four years imprisonment (see at [20]–[28]). Allowing for the additional seriousness in the respondent’s offending, particularly in his additional offence of serious assault, his effective sentence of four and a half years imprisonment with eligibility for parole after 18 months is not inconsistent with the guidance supplied by those decisions.
In R v Craigie [2014] QCA 1, to which the sentencing judge referred, the offender was sentenced to four years imprisonment with parole eligibility after about seventeen months for four offences of violence committed in two episodes, including an assault occasioning grievous bodily harm, against two older men. The consequences for the complainants in Craigie were broadly similar to the consequences for the complainants in this case. That offender was only 19 years old, he had a significantly disadvantaged background, and he had not previously been imprisoned. The circumstances that the offender in Craigie committed offences against older men acting as mentors to the offender and others, in company with a co-offender, and using a knife at one point, made that offending objectively very serious, but when all of the circumstances are taken into account it remained open to the sentencing judge to consider that the respondent’s offender was more serious. The effect of the relevant part of my reasons, with which McMeekin J agreed, was that the circumstance that the minimum custodial period was a month or so longer than one-third of the head sentence did not make the sentence as a whole manifestly excessive. I did not comment upon the head sentence. McMeekin J was not persuaded that any lesser head sentence was arguably appropriate. Peter Lyons J, who considered that a parole eligibility date extending beyond one third of the term of the head sentence was not justified, was in dissent. The respondent could not necessarily expect to be given the same degree of leniency which is commonly afforded to one as young as 19 years of age (see R v Taylor and Napatali (1999) 106 A Crim R 578). Even so, in circumstances in which the respondent was given a more severe head sentence and (to a lesser extent) parole eligibility date, the decision in that case that the sentence was not manifestly excessive does not justify a conclusion that the respondent’s sentence was manifestly inadequate.
The respondent relied upon R v Dillon; ex parte A-G (Qld) [2006] QCA 521, in which the Court (McMurdo P and Mackenzie J; Fryberg J dissenting) varied a sentence of imprisonment for an offence of grievous bodily harm of three years suspended after 10 months by deleting the order for suspension and instead recommending the offender be eligible for post-prison community based release after serving 15 months of the three year head sentence. The objective circumstances of that offence were less serious than the respondent’s offence. The offender, who had earlier in the evening told the complainant to mind his own business when the complainant complained of the offender’s conduct in swearing at a female staff member at a hotel, punched the complainant in the back of the head from behind, causing him to stumble and fall down, and then kicked the complainant in the face. The respondent’s attack upon Mr Law was more vicious, callous, and prolonged. Furthermore, that offender stayed at the scene and told police officers that he found it hard to walk away when he was drinking. The complainant suffered facial injuries, including fractures, was hospitalised for some days, and at the time of sentence still suffered some loss of sensation in part of his face and was required now to wear reading glasses. The consequences of the offence were perhaps more serious than in the case of Mr Law, but not to an extent which would significantly bear upon the sentence. That offender had a criminal history involving offences of dishonesty and of violence, but he had not previously served any period in actual custody. This too does not seem to be a significant distinguishing circumstance. That offender, who was 22 years old at the time of the offence, was younger than the respondent but had been dealt with leniently for an offence of violence in public whilst intoxicated only eight and a half months before this offence. He also re-offended after the subject offence, including offending twice whilst on probation. However the President also took into account that the offender had made genuine efforts of rehabilitation since then.
The President found that to suspend the three year sentence after 10 months was to impose a manifestly inadequate sentence in circumstances in which the offender in Tupou had been given a more severe sentence on appeal even though he was a much younger offender, had a lesser criminal history and an earlier plea of guilty and greater co-operation with the administration of justice, and where “[t]he attack was in its own way as serious as that in Tupou” (at [16]). As was the case in Tupou the Court adopted the then prevailing approach of moderating a sentence imposed in a Crown appeal. Because the majority in Dillon treated the offence as being as serious as the offence in Tupou, Dillon is consistent with the guidance to be derived from Tupou that the respondent’s sentence, whilst lenient, was not outside the sentencing judge’s discretion.
Senior counsel for the appellant submitted that the respondent ought to receive a more severe sentence than in cases where offenders commit assaults, which are separated in time, against two or more victims. The respondent cited several cases of that type, including R v Green [2013] QCA 24 (where the offender received five years imprisonment with parole eligibility after two and a half years), R v Cullen & Hutchins; ex parte A-G (Qld) [2012] QCA 222 (both co-offenders sentenced to five years imprisonment with parole eligibility after 17 months), and R v Anning [2008] QCA 161 (head sentence of six years imprisonment). I would not accept the submission for the appellant that the respondent’s offences merited a more severe sentence than in cases such as those where an offender assaulted different victims on different occasions. Whilst each case must depend upon its own facts, there will usually be greater criminality in an offender who commits several assaults on distinctly separate occasions than in an offender who assaults the same number of victims on one occasion. For that reason, the sentences in the cited cases do not indicate that the respondent’s less severe sentence is inadequate.
It is unnecessary to refer to the many other cases which senior counsel for the respondent submitted supplied further support for his contention that the respondent’s sentence was not manifestly inadequate. It is apposite here to recall that an appellate court is bound to allow to sentencing judges “as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies” (Markarian v The Queen (2005) 228 CLR 357 at 371) and “may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion” (Lowndes v The Queen (1999) 195 CLR 665 at 671-672). Consistently with the guidance supplied by the sentencing decisions which I have discussed, whilst the respondent’s sentence might be regarded as relatively lenient, particularly in relation to the minimum custodial period, it was not manifestly inadequate such as to justify the Court’s intervention in a Crown appeal.