R v Dietz [2009] QCA 392

SUPREME COURT OF QUEENSLAND

CITATION: R v Dietz [2009] QCA 392

PARTIES: R v DIETZ, Benjamin James (applicant)

FILE NO/S: CA No 234 of 2009 DC No 123 of 2009 DC No 124 of 2009

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Hervey Bay

DELIVERED ON: 18 December 2009

DELIVERED AT: Brisbane

HEARING DATE: 2 December 2009

JUDGES: McMurdo P, Muir JA and Daubney J Separate reasons for judgment of each member of the Court, Muir JA and Daubney J concurring as to the order made, McMurdo P dissenting

ORDER: Application for leave to appeal is dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant was convicted after a trial of one count of doing grievous bodily harm and pleaded guilty to one count of assault and doing bodily harm – the applicant punched the complainant who then hit his head on the bitumen – the complainant suffered dreadful injuries and has ongoing physical and psychological difficulties – the applicant comes from a supportive family, has no prior criminal history and high rehabilitative prospects – the applicant was sentenced for the offence of grievous bodily harm to six years imprisonment with parole eligibility after serving half that period – whether the judge gave insufficient weight to the applicant's age, prior good history and rehabilitative prospects – whether the sentence was manifestly excessive / R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, considered R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered R v Dillon; ex parte A-G (Qld) [2006] QCA 521, cited R v Fisher (2008) 189 A Crim R 16; [2008] QCA 307, considered R v Horne [2005] QCA 218, cited R v Kinersen-Smith & Connor; ex parte A-G (Qld) [2009] QCA 153, cited R v Madden [2005] QCA 439, considered R v Mladenovic; ex parte A-G (Qld) [2006] QCA 176, cited R v Tupou; ex parte A-G (Qld) [2005] QCA 179, considered

COUNSEL: M A Green for the applicant M B Lehane for the respondent

SOLICITORS: Milburn Guttridge Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: The applicant, Benjamin James Dietz, was convicted after a four day trial of doing grievous bodily harm on 1 December 2007 at Hervey Bay. He pleaded guilty to a related offence of assault occasioning bodily harm, committed earlier on the evening of 1 December 2007 at Hervey Bay. Dietz was sentenced for the offence of grievous bodily harm to six years imprisonment with parole eligibility on 2 September 2012, that is, after serving half that period; and for the offence of assault occasioning bodily harm to a concurrent 12 month term of imprisonment. He applies for leave to appeal against his sentence only in respect of the grievous bodily harm offence, claiming that it is manifestly excessive because the judge gave insufficient weight to his age, prior good history and rehabilitative prospects.

2. I would grant the application and allow the appeal. These are my reasons.

3. At trial Dietz made the following admission through his barrister:

"In the early hours of 1 December 2007 [the complainant] was punched in the head in the vicinity of Moroccos Nightclub. As a result of that punch to the head [the complainant] fell to the ground and hit his head on the bitumen, causing him to bleed. As a result of either the punch or the impact of his head on the ground, or both, [the complainant] suffered the following injuries:

1. A large right parietal haematoma (a localised swelling filled with blood involving the scalp) on the right side of the head.

2 A 7mm subdural haemorrhage over the right cerebral cortex (a brain injury causing haemorrhage under the outer protective covering membrane of the brain under the skull)

3A significant 10mm midline shift of the brain to the left (shifting of the brain 10mm past its midline line)

4 Bifrontal cerebral contusions (bruising and swelling of the frontal lobes of the brain) causing some brain tissue to bleed and to become non-viable.

The treatment … required as a result of his injuries was as follows:

1. Endotracheal intubation (placement of a tube in [the complainant's] mouth and down his throat into the trachea for him to be able to breathe) and assisted mechanical ventilation as he was unconscious (mechanical assistance with breathing)

2. Urgent Neurosurgery (surgery on the brain) involving a bifrontal decompressive craniectomy (removing the whole of the front of [the complainant's] skull to relieve pressure caused by extreme swelling of his brain) and a right frontal lobotomy (removal of [the] frontal lobe of the brain).

3. The frontal bone removed from his skull was stored in a subcutaneous pouch in the upper anterior abdomen wall for later reinsertion at cranioplasty once swelling of the brain had resolved.

4. Admission in the Royal Brisbane Hospital and another local hospital from 1 December 2007 to 14 January 2008

5. Admission in the Brain Injury Rehabilitation Unit at the Princess Alexandra Hospital from 15 January 2008 to 15 February 2008 where [the complainant] underwent a comprehensive neurorehabilitation assessment and therapy program.

The effects upon [the complainant] as a result of the injuries were as follows:

1. Initial medical inability to drive a car or work in paid employment, although as at 2 September 2009 [the complainant] is able to both drive and work.

2. Severe pain

3. Severe reduction of [the complainant’s] functioning memory over a twenty minute period

4. Cognitive language deficits

5. Reduced high-level balance and co-ordination

The above injuries to and the above effects upon [the complainant] amount to grievous bodily harm."

The sentencing proceedings

4. Dietz was 20 at the time of his offending and 22 at sentence. He had no prior criminal history.

5. The prosecutor at sentence made the following submissions. The offences occurred after midnight and sometime before 3.00 am, probably around 2.00 am. Dietz was a persistently violent person on 1 December 2007, punching both complainants during the evening. The consequences for the grievous bodily harm complainant were "absolutely horrendous". Dietz showed no remorse. He lied to police in an interview. At the committal proceedings, all the witnesses, including the complainant, were cross-examined. After referring to R v Madden,¹ he submitted that the appropriate sentence in this case, bearing in mind the two assaults that evening, was six years imprisonment for the grievous bodily harm and a lesser concurrent term, perhaps 12 months, for the assault occasioning bodily harm. The prosecutor also noted that material to be provided by defence counsel and comments in Dietz's police interview suggested that Dietz was trained in boxing so that he would well have known the potential consequences of punching people in the way he did.

6. The complainant's victim impact statement contained the following information. He was hospitalised for five months undergoing rehabilitation, including occupational therapy, physiotherapy and speech therapy. He was on assorted medication for epilepsy, blood pressure, and pain control, and was also on antibiotics. He has been diagnosed with epilepsy, short term memory problems, high blood pressure and depression. He has lost his sense of smell. His short term memory problems have affected his ability to work. The pain he suffered at the time was like his "head was in a vice". He took morphine until he finally stopped his medication because it was making him drowsy all day and detrimentally affecting his ability to function. His doctor has told him that if he has seizures or fits he will have to take medication in the long term. His skull plate was temporarily removed and placed in his stomach until it was able to be replaced. He has had part of his frontal lobe removed. He has scars across the top of his head from ear to ear (32 cm) and a scar across his stomach (23 cm). He no longer has full vision in the top left hand corner of his eye and his reaction time is not as responsive as it was. This condition, which resulted from the offence, is quadrantanopia. He was unable to drive for a period, but is driving again, although very cautiously. Since the offence, he gets upset easily and often cries. He also gets frustrated and angry. His friends and family have become protective of him when they go out. He was off work for 12 months following the offence and he has only worked three months since. The Commonwealth Rehabilitation Service is helping him return to work. He has been unable to earn as much as before the offence and his impecuniosity has affected the quality of his lifestyle. He attached photographs, tendered during the sentencing process, of his stomach and head, which illustrated the seriousness of his injuries.

The competing contentions in this application

9. Counsel for Dietz in this application contends that a review of Amituanai, Fisher, R**v Tupou; ex parte A-G (Qld),⁴ R v Dillon; ex parte A-G (Qld),⁵ Madden and RvKinersen-Smith & Connor; ex parte A-G (Qld)⁶ demonstrate that the six year sentence imposed on Dietz is outside the appropriate range for the following reasons. Unlike in Madden, Dietz was only 20 years old at the time of the offences and had a good character, and absence of prior convictions, and promising rehabilitative prospects. Although the injuries to the complainant in the grievous bodily harm offence were horrific and warranted a stern deterrent penalty, these mitigating factors also had to be taken into account. In addition, there was no weapon: cf R v Bryan; ex parte A-G (Qld).⁷ The injuries resulted from one punch to the head causing the complainant to fall heavily on to a bitumen surface and this impact with the bitumen caused the injuries. Dietz did not further assault the complainant after he fell to the ground (cf Fisher and Kinersen-Smith). These factors justified a sentence ranging from four years imprisonment suspended after 20 months to a sentence of six years imprisonment with parole eligibility after two or two and a half years.

10. Counsel for the respondent in this application supports the sentence imposed at first instance. He emphasises the relevant sentencing principles of deterrence and denunciation; the dreadful injuries suffered by the complainant; that Dietz committed two aggressive assaults within half an hour; showed no remorse; gave a false account to police; cross-examined witnesses at committal and trial; and was apparently a professional boxer who should have appreciated the danger of punching people to the head. He contends the sentence imposed was well within range and is supported by Madden and in a general way by Bryan and Tupou. He pointed out that Amituanai was of limited comparability as he offended before the 1997 amendments to the Penalties and Sentences Act 1992 (Qld) which support heavier penalties for offences of violence.

Conclusion

11. This case is yet another example of the ruination of the lives of two young people, and the lives of their families, through the serious consequences of alcohol-fuelled gratuitous violence. The completely innocent complainant of the grievous bodily harm offence has suffered dreadfully as a result of Dietz's actions. He will continue to carry the physical and emotional consequences flowing from the injuries he suffered in the offence for the rest of his life. Until 1 December 2007 when Dietz committed this offence and the assault occasioning bodily harm, Dietz was a young man with no prior convictions and with a promising future. He had a sound upbringing and continues to have the support of a loving family. He had a solid work history with promising prospects and had formed a long-term relationship with a responsible young woman. His commission of the offence of unlawful grievous bodily harm means that he must be sentenced to a significant period of imprisonment as a deterrent to him and to others who behave in such an anti-social way. As Amituanai recognises, when a victim of the criminal offence of grievous bodily harm is seriously injured, the penalty imposed must reflect the extent of the injuries suffered by the victim. Although it may be doubtful whether drunken young men, as Dietz clearly was on 1 December 2007, will consider such things, the sentence imposed must be sufficiently severe to at least attempt to discourage such conduct and to express the community's severe disapprobation of it in the strongest terms.

12. Nevertheless, this Court continues to emphasise the community interest in the rehabilitation of young offenders with limited criminal histories: R v Horne,⁸ RvMladenovic; ex parte A-G (Qld),⁹ R v Mules,¹⁰ Kinersen-Smith.¹¹ Carrying out the balancing exercise between these competing considerations often makes the sentencing process difficult. It is particularly so in this instance.

13. The cases relied on as comparable by both parties provide some general assistance in determining the appropriate range, but none of them precisely match the combination of aggravating and mitigating circumstances that exist in this case.

14. The complainant in Amituanai suffered grave brain damage at least as serious as in this case, from a single act of violence. Amituanai came from a close and supportive family and he achieved well at school, both academically and in sport. He was 26 years old and so was older than Dietz. He had completed his final examinations for a degree in public administration. Unlike Dietz, Amituanai pleaded guilty and Dietz, of course, assaulted two victims in separate assaults on the same night. Amituanai was sentenced to three years imprisonment with a recommendation for parole eligibility after nine months. This Court determined his sentence was not manifestly excessive. But as the respondent rightly points out, that sentence was imposed before the 1997 amendments to the requiring judicial officers to take a sterner approach in respect of offences of violence. It is of limited use in determining the range in this case.

ORDERS:

1.Application for leave to appeal against sentence granted.

2.Appeal allowed, but only to the extent of setting aside the parole eligibility date of 2 September 2012 and substituting a parole eligibility date of 2 September 2011.

22. MUIR JA: I have had the benefit of reading the President's reasons for judgment and gratefully adopt her analysis of the facts, discussion of the proceedings at first instance and summary of argument on appeal. I am also obliged to her Honour for her analysis of the comparable cases. I regret, however, that I am not persuaded that the sentence imposed by the learned primary judge was manifestly excessive as a result of his failure to set a parole eligibility date earlier than 2 September 2012 (the mid-point of the sentence).

23. I accept that the applicant, unlike the offender in R v Bryan; ex parte A-G (Qld),¹² did not use a knife and struck the complainant only once. However, Williams JA, with whose reasons the other members of the Court agreed, considered that a "sentence in the range six to seven years was the minimum that could be considered as the head sentence."¹³ He also remarked that a declaration that the offence was a serious violent one would often be justified in circumstances such as those present in Bryan.

24. Although the injuries inflicted on the victim in Bryan were potentially life threatening, they did not appear to have caused him lasting damage which materially detracted from either his employability or quality of life. The same cannot be said for the injuries sustained by the applicant's victim. His employment prospects, once good, are now extremely modest at best. To state some of the effects of his injuries is to make plain how dramatically his quality and enjoyment of life has been diminished. He suffers from epilepsy, short-term memory loss, high blood pressure and depression. He has lost his sense of smell, has cognitive language deficits and reduced coordination and has lost full vision in the top left‑hand corner of his eye. Not surprisingly, the complainant experiences emotional difficulties.

25. The applicant may have struck only a single blow, but it was a blow struck by a person revealed by the evidence to be a proficient boxer, and it came after the applicant had been behaving aggressively for a considerable period and had already knocked another man to the ground.

26. The injuries suffered by the victim in R v Tupou; ex parte A-G (Qld),¹⁴ although extensive, did not approach in seriousness those suffered by the applicant's victim. In Tupou, the Chief Justice, with whose reasons the other members of the Court agreed, made it plain that the sentence of three years suspended after 15 months, imposed after a plea of guilty, was moderated because it was imposed on an Attorney-General's appeal.

"… we have noted the proposed reasons of Pincus JA and agree with his Honour's analysis, including the observation that generally speaking when one inflicts serious violence to the head of another the risk of catastrophic results must be shared by the offender as well as the victim. An appropriate sentence must be one that will discourage and deter such resorts to violence. It must also bear in mind that vindication is one of the many functions of the sentencing process, and it is an evident matter in the present case. Unless courts are seen to inflict real punishment, victims and their families may be tempted to exact their own form of revenge."

30. As the sentence imposed was within the exercise of a sound sentencing discretion, I would order that the application for leave to appeal be dismissed.

31. DAUBNEY J: Like Muir JA, I am indebted to the President for her comprehensive statement of the background to this matter and this exposition of the arguments advanced in the hearing of this application.

32. I am, however, not at all persuaded that it has been demonstrated that the sentencing discretion miscarried such as to warrant the grant of leave to appeal, and in that regard I am in complete agreement with the reasons of Muir JA.

33. This unprovoked attack on an innocent bystander has left the complainant with serious injuries which have permanently and dramatically diminished his quality of life. None of the authorities which the President and Muir JA have analysed support the notion that the head sentence of six years imposed in this case was excessive such as to warrant the grant of leave to appeal.

34. The only question, then, is whether it has been demonstrated that the learned sentencing judge’s discretion miscarried when he fixed the parole eligibility date at the halfway mark of the sentence, i.e. after three years. Bearing in mind that this sentence was imposed after a trial, and that the learned sentencing judge expressly took account of the matters of good character, young age and lack of prior convictions when sentencing, it cannot, in my view, be said that his Honour acted on some wrong principle or failed to take account of some relevant factor when exercising the sentencing discretion.

35. Accordingly, for the reasons given by Muir JA, I would dismiss the application for leave to appeal.

Footnotes

1. [2005] QCA 439. ↩

2. [2008] QCA 307. ↩

3. (1995) 78 A Crim R 588. ↩

4. [2005] QCA 179. ↩

5. [2006] QCA 521. ↩

6. [2009] QCA 153. ↩

7. [2003] QCA 18. ↩

8. [2005] QCA 218 at [5]-[6]. ↩

9. [2006] QCA 176 at [27]. ↩

10. [2007] QCA 47 at [21]. ↩

11. [2009] QCA 153 at [26]-[28]. ↩

12. (2003) 137 A Crim R 489. ↩

13. (2003) 137 A Crim R 489 at 496. ↩

14. [2005] QCA 179. ↩

15. [2005] QCA 439. ↩