Court of Appeal (Qld)|2005-05-06|Before: McMurdo P, Jerrard JA and Cullinane JSeparate, reasons for judgment of each member of the Court, McMurdo P and Cullinane J, concurring as to the order made, Jerrard JA dissenting, in part
McMurdo P, Jerrard JA and Cullinane JSeparate, reasons for judgment of each member of the Court, McMurdo P and Cullinane J, concurring as to the order made
Catchwords
APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW
TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSONS
– applicant pleaded guilty to manslaughter, assault occasioning bodily
Source
Original judgment source is linked above.
Catchwords
APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEWTRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTEDPERSONS– applicant pleaded guilty to manslaughter, assault occasioning bodilyharm and stealing – applicant sentencedto ten years imprisonment formanslaughter with concurrent terms of three and two years respectively for otheroffences – whetherwith reference to comparable cases the sentence wasmanifestly excessiveAPPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEWTRIAL – APPEAL AGAINST SENTENCE – GROUNDS FORINTERFERENCE –applicant had previously appeared both as a juvenile and an adult in Tasmaniancourts – sentencing judgementioned the applicant’s criminal historyas commencing at age 15 – s 148(1) of the Juvenile Justice Act 1992(Qld) prohibits the admission of juvenile offences where no conviction recorded– whether s 148(1) applies to interstateoffences – whether the
judge erred by placing weight on the applicant’s juvenile offences where
no conviction recorded
Juvenile Justice Act 1992 (Qld), s 148(1)Youth Justice Act
1997 (Tas), s 47, s 49
R v Bojovic [1999] QCA 206
[2000] 2 Qd R 183, distinguishedR
v George
ex parte A-G (Qld) [2004] QCA 450
CA No 316 of 2004, 18 November
2004, consideredR v Smith [2000] QCA 169
CA No 409 of 1999, 9 May
2000, distinguishedR v Tientjes
ex parte A-G (Qld) [1999] QCA 480
CA No 229 of 1999, 16 November 1999, distinguished
Judgment (51 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] McMURDO P: The relevant facts and issues are set out in the reasons for judgment of Jerrard JA. I am in general agreement with those reasons subject to the following observations. I reach a slightly different conclusion to Jerrard JA and would refuse Mr Duncombe's application for leave to appeal against sentence.
[3]
[2] Mr Duncombe contends that the learned primary judge was wrongly referred to offences committed by him as a juvenile in Tasmania and that this offends s 148(1) Juvenile Justice Act 1992 (Qld) which provides:
[4]
"In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded."
[5]
[3] "Offence" where it twice appears in that sub-section must refer either to an offence against Queensland statute law or a Commonwealth offence over which Queensland courts have jurisdiction under Part 10 Judiciary Act1903 (Cth). A Queensland sentencing court, however, would not ordinarily place significant weight on an offender's criminal conduct in another jurisdiction which did not result in the recording of a conviction in that jurisdiction. Mr Duncombe has not persuaded me that the learned sentencing judge erred by placing weight on Mr Duncombe's offending juvenile behaviour in Tasmania which did not result in a conviction; his Tasmanian juvenile criminal history does not seem to have significantly influenced the sentence imposed.
[6]
[4] Mr Duncombe contends that the sentence imposed (10 years imprisonment for the manslaughter of Mr Hoy with concurrent terms of three years and two years imprisonment respectively for assault occasioning bodily harm in company on and stealing from Mr Vass) is manifestly excessive. In support of that contention he has referred the Court to R v Bojovic,[1]R v George; ex parte A-G (Qld),[2]R v Tientjes; ex parte A-G (Qld)[3] and R v Smith.[4] The relevant facts of those comparable cases are discussed in Jerrard JA's reasons. George, like this offender, was a young man in his early 20s with a concerning prior history for violence. He killed a man during a violent episode at a Normanton Hotel by delivering a single blow to the head. His sentence was increased on an Attorney's appeal to nine years imprisonment with no recommendation for post-prison community-based release nor a declaration that it was a serious violent offence under Part 9APenalties and Sentences Act1992 (Qld). The Court noted that this was "the minimum which could be imposed". In light of the moderation commonly exercised by appellate courts on Attorney's appeals against sentence, George demonstrates merely that a nine year term of imprisonment with no recommendation for parole nor Part 9A declaration would have been at the lenient end of the applicable range here; it does not demonstrate that Mr Duncombe's sentence of 10 years imprisonment for the offence of manslaughter was outside a sound exercise of the sentencing discretion.
[7]
[5] The facts of Smith are quite different to those here. Smith was acquitted of murder but convicted of manslaughter after a trial and sentenced to nine years imprisonment with a declaration that the offence was a serious violent offence. He killed a woman with whom he had been in a relationship for about three years who was the mother of their 11 month old child and was six months pregnant with a second child. Smith and the deceased became involved in a violent argument after drinking alcohol at a local bowls club. Smith later took the deceased's limp body to the Bundaberg hospital where, despite efforts to resuscitate her, both she and the unborn child died. The deceased had sustained severe injuries to her skull and brain of the type commonly encountered in motor vehicle accidents: a fracture to the base of the skull extending from the inner left to the inner right ear, an extradural haemorrhage, minor subdural haemorrhage and some arachnoid haemorrhage. The injuries were consistent with the repeated ramming of the deceased's head against a hard surface. Smith had no prior convictions for violence. This Court concluded that the declaration that the offence was a serious violent offence did not constitute any judicial error and did not make the sentence manifestly excessive. The facts in Smith are so disparate to the facts in this case that it is of no real assistance. It certainly does not demonstrate that Mr Duncombe's sentence of 10 years imprisonment for the offence of manslaughter, from which automatically flows a declaration that the offence is a serious violent offence under Part 9A, was manifestly excessive.
[8]
[6] In Mr Duncombe's favour are his early plea of guilty, his cooperation with the authorities, his comparative youth (22 at the time of the offence and 23 at sentence) and his efforts at rehabilitation demonstrated by the material tendered on his behalf at sentence. On the other hand, he has unlawfully killed a 47 year old man, incapacitated by alcohol and fatigue but bothering no-one, in a public place. The victim offered neither provocation in fact nor law and indeed made placatory gestures. Mr Duncombe punched him to the head on three occasions and at least one punch involved very significant force. Sentencing principles of general and personal deterrence warrant salutary penalties for the commission of such serious gratuitous acts of violence in a public place. Mr Duncombe's problem with alcohol and his intoxication this night explain how an otherwise promising, pleasant young man can turn into a dangerous and violent thug; it does not excuse his gross criminality in killing Mr Hoy. He had prior convictions for offences of violence and had been previously offered the lenient opportunity of community-based orders to address his problems. He should have gained insight into the grave effect of alcohol on his personality long before he took Mr Hoy's life in an act of drunken violence. If he is able to control his alcohol and drug abuse in the future, his prospects of rehabilitation, based on the references and reports tendered at sentence, appear excellent; if not, his offending history suggests he will remain a danger to the community. Mr Duncombe has not demonstrated that the sentence imposed on him for the offence of manslaughter was outside the proper range, even without considering his subsequent violence to Mr Vass.
[9]
[7] The concurrent sentences imposed for Mr Duncombe's separate and subsequent acts constituting the offences against Mr Vass are not double punishment for the same act or acts constituting the manslaughter offence. The imposition of concurrent sentences on those offences did not offend the principles discussed in Pearce v The Queen.[5] I would not interfere with them.
[10]
[8] It follows that I would refuse the application for leave to appeal against sentence.
[11]
[9] JERRARD JA: On 25 October 2004 Mr Duncombe pleaded guilty to the manslaughter of Philip Scott Hoy on 2 November 2003 at Cairns, to having on the same date unlawfully assaulted Maxwell Vass and done him bodily harm when in company with another person, and to a charge of stealing a wallet from Mr Vass. He was sentenced to 10 years imprisonment for the manslaughter of Mr Hoy, and to concurrent terms of three years imprisonment and two years imprisonment respectively for the two other offences. A period of 359 days pre-sentence custody between 2 November 2003 and 25 October 2004 was declared to be imprisonment already served. Mr Duncombe has appealed against all the sentences, arguing they are manifestly excessive.
[12]
[10] The circumstances of his offending behaviour were succinctly described by the learned sentencing judge in the following terms:
[13]
"The circumstances of your committing this offence were that in the early hours of the 2nd of November 2003 you were asked to leave the Woolshed Nightclub because you had been verbally abusive to other patrons. Whilst you were being evicted you threatened the security personnel of that establishment. You attempted to re-enter the nightclub from which you had been evicted but nonetheless you were kept out and you went on your way, walking towards a transit centre where Mr Hoy was seated on one of the benches. He was a 47 year old man. He had been out that evening and he was asleep on the bench. His companion had left him there.
[14]
You were approached by some Swiss female tourists who spoke to you and you made some lewd comments to them. The witnesses at the scene observed you then confronting Mr Hoy who was still sitting in the seat. You were standing over him. He held his hands up, open-palmed in an act of submission, but you nonetheless put him in a headlock and as he was trying to get to his feet you hit him with your fist.
[15]
Despite his offering no resistance to you, you punched him again in the face. That punch was accompanied by a loud crackling sound, according to witnesses. There was another punch which caused Mr Hoy to fall to the ground with some force. He made no attempt to arrest his fall in the likelihood that he was then unconscious.
[16]
The violence inflicted on a complete stranger, a man who gave you no cause for your action, is quite chilling. Each of the blows you aimed at him landed with telling effect. Your actions thus appear to me to have been quite deliberate and as indeed was your prior conduct threatening the security personnel at the Woolshed Nightclub. Your behaviour after felling Mr Hoy and leaving him in an unconscious state was gratuitously to punch a young man, causing his head to hit the side of a bus and then to move on to a next victim, Mr Vass, whom you assaulted by throwing to the ground and kicking him whilst he was on the ground. In this latter action you were assisted by your co-offender here. While he was thus disabled, you stole Mr Vass's wallet.
[17]
You were clearly under the influence of alcohol at the time of these events. A blood alcohol test taken some four hours later showed you still had a reading of 0.172 per cent, but the narrative which I have just recalled shows that your actions were deliberate. It seems to me you were prepared to assault anyone who crossed your path."
[18]
[11] I add the following extra description. Mr Duncombe was at all times in the company of a friend Timothy Gardiner, who was evicted with him from the nightclub, and who joined in the assault on Mr Vass. That assault occurred after Mr Duncombe had punched Mr Hoy at least three times to the face or head, using lethal force. What next occurred was that Mr Vass saw a young man being punched in the face with sufficient force to cause that young man's head to go backwards and strike a bus, and then Mr Vass saw Mr Duncombe and Mr Gardiner standing near to that young man who had been punched. Mr Vass did not see either of them actually throwing the punch, but one or other of them then asked Mr Vass words to the effect "What do you think about that?", referring to the punch. Mr Vass replied with a comment critical of Mr Duncombe and Mr Gardiner, who both immediately set upon him, punching and kicking him and knocking him to the ground. When he endeavoured to escape he was knocked down again, and kicked and punched more. He lost consciousness.
[19]
[12] Neither Mr Duncombe nor Mr Gardiner were charged with punching the unidentified young man whose head went backwards and struck the bus, but the comment one or other of them made to Mr Vass, preceding the assault in company upon him, effectively claimed "ownership" of that incident. Mr Duncombe, who appeared for himself on the appeal, did not complain about the remark by the learned sentencing judge which assumed that it was Mr Duncombe who had punched that unidentified person, although that assumption did not reflect any plea actually entered by Mr Duncombe.
[20]
[13] Mr Duncombe did complain of the following matters. The first was that the judge had dealt with all three offences, whereas ordinarily only a charge of manslaughter would be heard in the Supreme Court. There is no merit in that point, because even if the learned judge had dealt only with the manslaughter charge, and had insisted that there be separate proceedings held in the District Court in respect of the other two counts, the circumstances of those admitted offences were relevant to an understanding and assessment of Mr Duncombe's conduct that night. He was indiscriminately and extremely aggressive to all with whom it was established he had come into contact. He was 23 when sentenced, and so at the age of 22 had beaten to death an inoffensive and defenceless man old enough to be his father, whom he had probably awoken from sleep on a seat. Then he attacked Mr Vass, when the latter had not approved of Mr Duncombe's physically aggressive behaviour; then he stole from Mr Vass. When restrained by security personnel, from various licensed premises, from whom passers by had sought help, Mr Duncombe attempted to escape and had to be held on the ground. He struggled with them but was handcuffed by police who arrived.
[21]
[14] It was only then that Mr Hoy's body was noticed lying where he had fallen, and a faint pulse was detected. He was pronounced dead on arrival at the Cairns Base Hospital. A post-mortem established that the primary cause of death was a subarachnoid haemorrhage caused by a tear in the left ventricle artery. He also had multiple recent injuries to the left side of the body, the left forehead, left eyelid, left cheek, and the front of the left ear. Mr Duncombe's appalling attack on Mr Hoy was rightly considered by the learned sentencing judge in the context of Mr Duncombe's equally cowardly attack upon Mr Vass immediately after, and of his opportunistic dishonesty. It would have been an error for the learned judge to regard the attack on Mr Hoy as an isolated incident. It was one of a series of alcohol-fuelled incidents.
[22]
[15] Mr Duncombe's next complaint was that after the allocatus was administered, the learned judge had said "Yes. I'll hear from Mr McCreanor in due course. You may sit down Mr Duncombe. Yes." Mr Duncombe complained that because he obeyed that instruction, he had been thereby prevented from carrying through what was then his intention to offer in court his condolences and most sincere apologies to the deceased's family, and to express in his own words "how extremely remorseful and my deepest regret this tragic incident took place". Mr Duncombe explained to this Court that he had thought his doing that would bring closure to Mr Hoy's grieving family. It is of course still open to Mr Duncombe to communicate with that family by letter; and the learned judge accepted as accurate a psychiatrist's assessment that Mr Duncombe gave every appearance of expressing profound remorse for his actions. The learned judge in fact went further, stating "You accept responsibility for your actions ... and you deeply regret what has happened." Mr Duncombe was therefore not disadvantaged at all by what happened in court.
[23]
[16] Mr Duncombe's next point is that that prosecutor referred the learned judge to Mr Duncombe's criminal history as a juvenile offender in Tasmania, and the judge admitted that record as an exhibit, which conduct Mr Duncombe suggested breached s 148(1) of the Juvenile Justice Act 1992 (Qld). It provides:
[24]
"In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded."
[25]
[17] That criminal history records three appearances in the Launceston Children's Court when Mr Duncombe was 16, and which appearances each resulted in probation orders. The Youth Justice Act1997 (Tas) relevantly provides in s 47 and s 49 thereof that a court imposing a fine, making a probation order, or ordering that a youth perform community service may record a conviction; a court making a detention order must record a conviction. It follows that the appearances on which probation resulted may or may not have been ones when convictions were recorded. Those offences were for being drunk and disorderly, taking a vehicle without consent, abusive language, burglary and stealing, engaging in disorderly conduct and resisting a police officer, being secreted near a dwelling house and resisting a police officer, and threatening a police officer and possessing a prohibited substance. All other appearances recorded in the exhibit were after Mr Duncombe turned 17.
[26]
[18] Mr R Martin SC informed the Court that his researchers strongly suggested that on each of those described occasions a conviction had in fact been recorded, and submitted that in any event the provisions of s 148(1) could only sensibly be construed as referring to proceedings for adult offences committed in Queensland, and prohibiting reference to findings of guilty of offences committed in Queensland as a child for which convictions had not be recorded. This was because "offence" where it was first used in that subsection necessarily referred to offences against Queensland statute law and within the jurisdiction of Queensland courts, and there is no reason for construing the term differently when used for the second time in the subsection. I respectfully agree with those submissions, and with the further submission that the words "offence" in the Juvenile Justice Act 1992 should be understood as referring to an offence as defined in s 2 and s 3 of the Criminal Code, read with s 12, s 13, and s 14 of that Code. Put simply, that requires that an offence be committed in Queensland.
[27]
[19] It does not follow, of course, that the inapplicability of s 148(1) of the Queensland legislation means that a sentencing court in this State should ignore similarly worded restrictions in the laws of other States and Territories of the Commonwealth making provision for juvenile offenders. Respect for judicial comity requires otherwise. There is in fact no provision in the Tasmanian Youth Justice Act to similar effect as s 148(1), although s 49(5) of the Tasmanian Statute does provide that where a conviction is not recorded, a finding of guilty is not to be taken as a conviction for any purpose. But even if Mr Duncombe's appearances as a child in Tasmania had not resulted in a conviction, and assuming in his favour an expansive construction of s 49(5) of the Youth Justice Act1997 (Tas) so that it has a similar result or effect as s 148(1) (which is a significant assumption), reference to his juvenile record of non-conviction did not affect the sentence.
[28]
"Your criminal history has a number of instances of violence being associated with the consumption of alcohol or drugs. The first such occasion was in December 1996 when you were only 15 years old. The next occasion was some two years later. Virtually every year thereafter you have been guilty of some violation of the law. These included drug offences, consumption of alcohol in a public place, threatening police officers, assaulting and abusing police officers and the wilful destruction of property."
[29]
Mr Duncombe's appearances as an adult in Tasmania included appearances to answer charges of burglary and stealing, consuming liquor in a public place, trespass, assault, assaulting and resisting a police officer, possessing an open container of alcohol in a public place and providing a false name and address, using abusive language to a police officer, and disturbing the public peace by fighting. His offending behaviour in Queensland as an adult included offences of wilful destruction of property, possessing utensils or pipes, and behaving in a violent manner. It follows that Mr Duncombe when an adult had appeared in court and been dealt with for all of the behaviour described by the learned sentencing judge as varieties of violation of the law committed each year by Mr Duncombe. As an adult he had been dealt with in 1998, 2000, 2001, and 2003.
[30]
[21] It follows that all of the learned judge's quoted remarks could have been applied to Mr Duncombe's adult appearances, other than the reference to the appearance in December 1996 when he was still 15. In context it is clear that the judge intended to include all of Mr Duncombe's appearances, both as a child and an adult. His appearances as a child evidenced a pattern of behaviour that continued after he turned 17, characterized by the use of intoxicants, aggression in public, and dishonesty. The fact that it continued for five years as an adult was far more important for Mr Duncombe's sentence for manslaughter than that it had been exhibited for two years when a child. Any non-conformity with Tasmanian law occasioned by exhibiting the criminal history could not have affected the sentence.
[31]
[22] Mr Duncombe next complains of errors of fact by the learned sentencing judge, which were that the learned judge remarked that "two months" before the tragic events with which the judge was dealing Mr Duncombe had been convicted of fighting in a public place in Tasmania, whereas in fact the events had occurred four months before, and he had been convicted in his absence on 16 October 2003, 17 days before he killed Mr Hoy. If the sentencing judge's observation was re-worded to be accurate, it would make no relevant difference. What was a more significant misstatement of fact was the judge's next remark, that only one month earlier Mr Duncombe had been convicted of behaving in a violent manner in Cairns. That had actually occurred two years earlier. The incident had involved Mr Duncombe brawling with another nightclub patron at about 5 am in the morning and until police intervened. Considered alone, the learned judge's two errors painted Mr Duncombe as having engaged in violent behaviour in public more recently than was in fact the case. But the unalterable fact remained that Mr Duncombe had over time consistently been violent in public, with the last such occasion being four months earlier in Tasmania. Putting it accurately would not change what was relevant, namely that Mr Duncombe's aggression to others in public was a long standing feature of his conduct.
[32]
[23] Mr Duncombe complains of the manner in which the learned judge dealt with his counsel's submission on that point, which was to describe Mr Duncombe as having a "Jekyll and Hyde" character, with Mr Hyde apparently emerging through alcohol. Mr Duncombe's complaint to this Court was that he had not authorised his barrister to describe him in those terms, and that no medical evidence had been produced to support that description of him. Mr Duncombe also complained that his barrister had failed to describe sufficiently Mr Duncombe's past good achievements and work history, and his volunteer work. Likewise Mr Duncombe complained that his barrister had not sufficiently emphasised that Mr Duncombe had left Tasmania to get away from his problems with alcohol.
[33]
[24] His counsel had put before the Court a considerable number of references of which many described Mr Duncombe as a compassionate and understanding person, who as a child and adolescent had experienced over a long time the pain of parental separations and eventual divorce. Those references included observations such as "Away from alcohol he is well spoken, his manners are good and I believe he really tries to 'do the right thing'"; "Alcohol seems to bring out a lot of hurt for the childhood he had"; and the psychiatrist's report described Mr Duncombe's voluntary work and his work history, as did the references. His counsel's description of him as having a Jekyll and Hyde personality simply put more graphically the picture presented to the learned judge by Mr Duncombe's own referees.
[34]
[25] Mr Duncombe also informed this Court that he was suffering from an undiagnosed psychological condition which aggravated the effect of alcohol he had consumed, and that that had not been considered when sentencing him. It could not have been, if the condition remains undiagnosed. Mr Duncombe's further complaint that the sentence did not contain any order for his rehabilitation confused the judge's sentencing powers with a condition or state which only Mr Duncombe's own efforts can achieve.
[35]
[26] Mr Duncombe complained that his sentence was heavier than that imposed in some other cases of manslaughter. He referred to R v Bojovic[1999] QCA 206, where that offender was sentenced by this Court to eight years imprisonment following a successful appeal. That offender had thrown at least five powerful punches which caused the death of a person who had provoked that offender by punching him. Mr Bojovic's conduct was described in this Court's judgment as "a case of self-defence that went too far". Nothing could be further from an accurate description of Mr Duncombe's conduct. He was the aggressor at all times.
[36]
[27] Mr Duncombe also referred the Court to the matter of R v George; ex parte A-G (Qld) [2004] QCA 450, where this Court increased a sentence of eight years imprisonment with a recommendation for post-prison community based release after serving three years and three months, to a sentence of nine years imprisonment without any such recommendation. This Court did not make a serious violent offence declaration. That offender had been involved in an assault upon the person he ultimately killed, which assault involved an attack on the victim by others as well as by Mr George, and the deceased had been punched to the ground and kicked. The deceased had recovered from that assault, and got back up to his feet and lent on a utility, while bleeding "fairly considerably" from the face, nose, mouth, and forehead. Significantly Mr George was not charged with any offences arising out of that first assault on the man he killed, but was convicted of manslaughter after he had walked up to the deceased and delivered a single punch to the face. The sentencing remarks said that then: "The deceased stiffened up before falling solidly to the ground, striking the back of his head on the concrete surface." He suffered a subdural hematoma, lost consciousness, and never recovered. Mr George pleaded guilty to manslaughter. He had previous convictions for violence, including one for doing grievous bodily harm, for which he had been sentenced in the Normanton District Court to four months imprisonment, wholly suspended.
[37]
[28] That offender was only shown to have thrown one unlawful blow, albeit that he was a strongly built young man (as is Mr Duncombe) who was "intoxicated and acting very aggressively". This Court described the nine year sentence as the minimum which could be imposed, given Mr George's conduct and his record. That decision does not show that the 10 years imposed here was manifestly excessive, although it does show that a nine year term for the manslaughter would not have been manifestly inadequate. Mr George threw his one unlawful blow when police were present and had intervened to quell fighting between different groups outside a Normanton Hotel, and the fact that Mr George ignored the police presence when he attacked an already injured man, and the fact that he had a serious prior conviction, were circumstances aggravating his offending behaviour.
[38]
[29] Mr Duncombe also referred to the decision in Tientjes[1999] QCA 480, in which this Court increased a sentence of four years and six months (after a trial) to seven years. That offender, who had one prior conviction for assault occasioning bodily harm, had responded with a number of powerful punches to a single blow to him from the deceased. He continued his assault when his victim was on the ground. That case, like Bojovic, is an example of an excessive response to another's unlawful conduct and does not assist Mr Duncombe.
[39]
[30] Mr Duncombe finally referred to R v Smith[2000] QCA 169 where that offender was convicted by a jury of the manslaughter of a pregnant woman and sentenced to nine years imprisonment with a declaration that he was a serious violent offender. The deceased had sustained skull and brain injury described by the pathologist as being more commonly encountered in a motor vehicle accident, and consistent with repeated ramming of the deceased's head against a hard surface. That sentence was not disturbed on appeal.
[40]
[31] That sentence, and the one imposed on Mr George, supports Mr Duncombe's complaint that his sentence appears high by comparison, and that a nine year sentence was appropriate. However, the respondent referred the court to R v Summers[1990] 1 Qd R 92, where a 25 year old man had thrown between five to seven heavy punches to a 45 year old man after a minor collision between both vehicles resulting in the deceased saying "sorry, mate", and then that applicant immediately punching him severely. The punches were aimed at the deceased's head and the latter made no attempt to retaliate, and fell to the ground unconscious after the last punch. He died in hospital two weeks later.
[41]
[32] That applicant said he had hit the deceased as hard as he could "with all my strength" and McPherson J, with whom the others agreed, described the 10 year sentence imposed as lying well within the range of sentences for the offence of manslaughter committed in the described circumstances. The learned judge remarked that that appellant had manifested some pride in his actions, he having said that "I usually go for the side of the head because it's more effective"; and that in nothing that applicant did was it possible to discover a single redeeming feature capable of mitigating the offence committed. In this matter Mr Duncombe has expressed remorse.
[42]
[33] Summers was decided before Part 9A of the Penalties and Sentences Act1992 was enacted, and the decision in Bojovic held that a court should not attempt to subvert the intentions of that Part by reducing what would otherwise be regarded as an appropriate sentence. In Bojovic this Court noted that an aggravating factor present in a number of cases upon which the Crown relied in justification of the 10 year sentence originally imposed in that case, namely whether an offender had gone on with the attack after the victim had become helpless, was not present in Mr Bojovic's conduct; nor in fact was it present in Mr Duncombe's attack on Mr Hoy, although it was in his joint attack on Mr Vass. It was present in the case of R v Summers, where that applicant continued to kick his victim in the body as he lay unconscious on the ground.
[43]
[34] If Mr Duncombe's behaviour that night had included only the violence used in killing Mr Hoy, then I respectfully consider that the 10 year sentence imposed for manslaughter would have been excessive when compared to the sentences imposed in Summers and in George. But Mr Duncombe was sentenced for other conduct that night, and the sentence imposed for manslaughter could appropriately reflect the totality of this offending behaviour; or alternatively the sentence imposed for assault occasioning bodily harm in company could be made cumulative to that for manslaughter.[6] Mr Duncombe's assault on Mr Vass should not simply go unpunished. I am satisfied that if the appropriate sentence for manslaughter was nine years considered without the aggravating circumstance of that other assault occurring immediately after, then an overall sentence reflecting Mr Duncombe's criminality was the 10 years imposed.
[44]
[35] However, in those circumstances it is appropriate that there be no other punishment ordered for the offences of assault occasioning bodily harm in company, or the offence of stealing, other than purely nominal sentences; that accords with the insistence in recent decisions of the High Court that sentencing courts take care to avoid any possibility of a defendant being punished twice for the same conduct. Accordingly, I would dismiss the application for leave to appeal against the 10 year sentence imposed for manslaughter, but allow the application in respect of the sentences imposed for assault occasioning bodily harm in company, and for stealing, allow the appeal in respect of those two sentences, set them aside and impose instead sentences of one years imprisonment for each of those offences.
[45]
[36] CULLINANE J: I agree, for the reasons given by the President in her reasons for judgment, that the applicant has not demonstrated that the sentence of 10 years imposed in this case was outside the range of a sound sentencing discretion. The application should be refused.