_R v Fisher_

Judgment (34 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Atkinson J. I agree with her Honour's reasons and the order proposed by her Honour.

[3]

[2] JONES J: I agree with the reasons of Atkinson J and with the order she proposes.

[4]

[3] ATKINSON J: On 3 June 2008 the applicant was convicted in the District Court in Bundaberg upon his plea of guilty to one count of grievous bodily harm. He was arraigned with three other co-accused, each of whom proceeded to sentence immediately whereas the applicant's sentence was to be contested. The applicant was sentenced on the following day but by then his sentence was not contested as he agreed to be sentenced on the facts presented by the prosecution. He was sentenced to four years imprisonment with a parole eligibility date of 4 December 2009, after he had served one-third of his sentence. He seeks leave to appeal against the sentence on the ground that the sentence is manifestly excessive.

[5]

[4] The circumstances of his offending were set out in a schedule of facts tendered before the learned sentencing judge. The four defendants were aged between 17 and 19 years of age. The applicant was 19 and was the cousin of the other 19 year old defendant. Each was conjointly charged with unlawfully doing grievous bodily harm (count one) and alternatively assault occasioning bodily harm while in company (count two). One of the co-offenders was also charged with stealing (count three). The applicant pleaded guilty to count one and his co-offenders pleaded guilty to count two.

[6]

[5] The complainant was a 35 year old electrician who worked for a mining company based in Blackwater. He visited Bundaberg for the Easter long weekend, travelling alone and staying at a backpacker's hostel in Bundaberg. The offence occurred on Saturday 8 April 2007. He did not know and had not met the applicant or the other three defendants at the time of the offence.

[7]

[6] On the night of the offence the complainant was in the company of another man who also worked at the mines. They watched football on television at a hotel and the complainant drank about six to seven pots of mid-strength beer. Later at another hotel he drank a similar amount of beer and the two men left that hotel with other patrons at closing time at 3.00 am. The complainant was affected by alcohol at that time but said that he was coherent and knew what was happening.

[8]

[7] They were waiting at a taxi rank for about an hour when the complainant's friend got into a taxi with a woman. The complainant decided to walk as it was only three or four blocks from the hotel to the backpacker's hostel. Whilst he was walking to the hostel, the complainant asked for and obtained a cigarette from a passer by who continued walking in the opposite direction.

[9]

[8] The applicant was one of a group of young men, including his co-accused, who had been out socialising and drinking. About two minutes after the complainant had borrowed a cigarette, the applicant approached the complainant from behind and asked him for a cigarette. The complainant told him that he did not have any and that he had borrowed the one he had. The complainant then continued walking. Without warning, the applicant attacked the complainant from behind punching him first to the back of the head towards the right side of his face and then repeatedly punching him until the complainant fell to the ground. Of the four co-accused, only the applicant threw punches at that stage. Then applicant then started to walk away from the complainant.

[10]

[9] One of the applicant's group (who was not charged with any offence) went over to the complainant and tried to help him up off the ground. The applicant then returned to confront the complainant saying "Do you want to have another go". The complainant indicated that he did not want to fight. Nevertheless the applicant started attacking him again.

[11]

[10] He was once again knocked to the ground. This time the applicant repeatedly punched and kicked the complainant whilst he was on the ground, in particular to his head and back. His three co-offenders then joined in and did likewise. The complainant was not able to offer any resistance except to attempt to cover his head and face with his hands. Very shortly into the attack he was incapable of any resistance.

[12]

[11] The attack eventually ended with the applicant and his co-accused walking away. The complainant was left bloodied and bleeding in the middle of the footpath. The complainant's memory after the assault is affected by his injuries. He recalls getting into the front of a taxi which had a passenger and asking to be taken to the police station. He was dropped off outside the police station but was unable to go inside because he could not see or walk properly. He then used his mobile telephone to call an ambulance which took him to the Bundaberg Base Hospital for treatment.

[13]

[12] When seen at the hospital the complainant was found to have sustained the following injuries: a blowout fracture of the left orbit; a fracture of the nasal bone; a fracture of the anterior wall of the left maxillary sinus; haematomas on the left pre-septal region, cheek and left maxillary sinus; and a fracture of the left eleventh rib posterially.

[14]

[13] He was transferred to the maxillofacial unit of the Royal Brisbane Hospital where the fractures of the left orbital floor and the rib were confirmed and fractures to four anterior teeth requiring significant dental treatment were found.

[15]

[14] The complainant suffered double vision and ongoing numbness to his face. Surgery was undertaken a month later to repair the fracture of the left orbital floor and relieve pressure on the left infraorbital nerve. His altered sensation and double vision would otherwise have been permanent. His teeth were repaired but, because of the trauma to them, after about a year the repair failed. The complainant suffers from post-traumatic stress disorder and at the time of sentence was still suffering psychological symptoms.

[16]

[15] The applicant took part in an interview with the police in which he gave a false version of the complainant's having made racist comments towards him and having attempted to instigate a fight with the applicant by baiting him. The applicant alleged that he tried to get the complainant to move along and stop baiting him but that instead the complainant effectively invited him to have a fight down the street. He said that was the reason that he followed the complainant down the street and that when he got there the complainant was shaping up waiting to have a fight. He alleged that the complainant pushed him first and that the initial fight was consensual. He attempted to minimise his own involvement and that of his cousin and blame two of his co-accused.

[17]

[16] The learned sentencing judge took into account the circumstances of the offending which was a vicious attack incapable of any rational explanation. The judge had regard to a number of aggravating features: that the applicant punched the complainant many times without provocation until the complainant fell to the ground; that he recommenced with the assault when the complainant was on the ground; he continued to assault the complainant despite others trying to stop him; he was joined by others; he continued to kick the complainant after he became unresponsive; he told the police that his kicks were "fairy kicks" which was offensive and against the facts and showed his lack of remorse; his lies in the police record of interview showed his lack of remorse; and he left the scene.

[18]

[17] The sentencing judge took into account the injuries caused to the complainant, his need for significant surgery and his significant ongoing problems. The judge described the offence of grievous bodily harm as brutal, vicious, and cowardly and which resulted in permanent physical and psychological injuries to a man who was simply walking down a city street.

[19]

[18] Other factors taken into account by the sentencing judge were that the applicant was entitled to recognition for the plea of guilty although it was not an early plea because the matter was to be a contested sentence on the day on which he pleaded guilty. The judge also took into account his youth and his lack of any comparable prior criminal history although he had a criminal history for trespass and attempting to enter premises in 2005, breach of community service order and unlawful use and possession of vehicles in 2006.

[20]

[19] The judge also took account of what was referred to as his slight prospects of rehabilitation shown in two references that had been tendered. The judge later described him as having "some prospects of rehabilitation."

[21]

[20] The cases in this court which set the range for offences of this type include R v Dillon; ex parte A-G (Qld) [2006] QCA 521; R v Tupou; ex parte A-G (Qld) [2005] QCA 179; and R v Verheyen [2008] QCA 150.

[22]

[21] In R v Dillon; ex parte A-G (Qld), the court allowed an Attorney's appeal against a sentence of three years imprisonment suspended after 10 months with an operational period of three years imposed on one count of doing grievous bodily harm. The appeal was allowed only to the extent of deleting that part of the sentence suspending the term of imprisonment and instead recommending the respondent be eligible for post-prison community based release after serving 15 months of the sentence.

[23]

[22] Dillon punched and kicked the complainant once in the early hours of the morning after a verbal altercation earlier that night. He was intoxicated at the time of the attack. The attack took place in a public place. The complainant suffered fractures to the bones around the left eye and the nose and continuing loss of sensation to the left side of his face.

[24]

[23] Dillon pleaded guilty but it was a relatively late plea after a full committal. He was 22 and had a relatively minor criminal history. His history did, however, include one count of assault occasioning bodily harm. After the conviction the subject of the appeal he was convicted of further offending in breach of probation although not for further offences of violence. He had undertaken some rehabilitation, and had an excellent employment history.

[25]

[24] Another Attorney's appeal which is relevant to the sentence in this case is R v Tupou; ex parte A-G (Qld). The respondent in that case was sentenced to a period of three years imprisonment suspended after nine months with an operational period of three years following his plea of guilty to unlawfully doing grievous bodily harm. His sentence was varied on appeal to provide for suspension of the head sentence after 15 months but was otherwise confirmed.

[26]

[25] In that case the 18 year old Tupou committed the offence on a 25 year old who was waiting in a taxi rank outside the Treasury Casino. As a taxi pulled up the complainant moved towards it, waving his arms about, although not threateningly. Tupou who was in the taxi with a friend said to the gesticulating complainant "What did you say fuck head?" The complainant returned to the queue.

[27]

[26] Tupou then got out of the taxi and moved quickly towards the complainant and without warning punched him severely enough to knock him to the ground. While Tupou weighed 90 kilograms, the complainant, a 25 year old man with cerebral palsy, weighed only 60 kilograms. Tupou then shaped up to the complainant who was on the ground and punched him a second time.

[28]

[27] Tupou ran off and he and his friend took their shirts off in the hope of reducing their prospect of being detected. When he was finally arrested by the police three weeks later he admitted that he had been the offender; that he had been intoxicated at the time and was a diabetic who had failed to take his insulin which had compounded the adverse affect upon him of alcohol. Tupou had a limited prior criminal history.

[29]

[28] The complainant suffered a depressed fracture of his right cheek, a fracture to the left cheek, a broken nose, a fractured jaw and the loosening of three teeth. He was left with numbness in his cheek and a loss of confidence. Tupou pleaded guilty following a full hand up committal and co-operation with the police. The Chief Justice observed that a sentence of three to four years imprisonment was appropriate. This sentencing range was followed by the Court of Appeal in R v Verheyen [2008] QCA 150 at [33].

[30]

[29] R v Craske [2002] QCA 49, referred to by the applicant, was a quite different type of case. In Craske the complainant was the instigator of the altercation and the offender kicked him once only. The applicant had no criminal history, an excellent work history, and had undertaken counselling including anger management between arrest and sentencing. His plea of guilty to an ex officio indictment was described as an "extremely timely and early plea of guilty." Craske's application for leave to appeal against a sentence of 18 months imprisonment, suspended after serving four months with an operational period of two years, for an offence of occasioning grievous bodily harm on the ground that the sentence was manifestly excessive, was unsuccessful.

[31]

[30] Also quite different was the case of R v Amituanai [1995] QCA 80; (1995) 78 A Crim R 588 where the applicant and the complainant were each a member of groups of young men who had been arguing with one another in a taxi rank. The applicant had been seriously injured by a member of the complainant's group who punched him breaking his jaw and racially abused by another. He kicked the complainant once to the head. The complainant suffered a brain injury. The applicant was extremely remorseful, had no criminal history and had made a real contribution to society. In Amituanai, the wide range of sentences which may be imposed for the offence of grievous bodily harm was referred to, as were a number of cases supporting that contention. A sentence of three years imprisonment was held not to be manifestly excessive.

[32]

[31] The applicant raised a question in his written submissions regarding parity with his co-offenders. They were each sentenced to two years imprisonment with a parole release date of 4 February 2009, after serving one third of the sentence. But the reasons for the difference in sentence are readily understandable. Each of the co-offenders was convicted of the lesser offence of assault occasioning bodily harm in company. The attack was initiated by the applicant who hit the complainant from behind and then punched him until he fell to the ground. Only then did his co-offenders join in the attack. None of them had any relevant criminal history and all were young. One was employed at the time of sentencing and had no criminal history; one was heavily intoxicated but had since given up drinking, was in employment and had co-operated with police; and the third offered to plead guilty at committal and was remorseful. None of them was the ringleader. There can be no justifiable sense of grievance arising out of any disparity between the sentence imposed upon the applicant and his co-accused.

[33]

[32] There are a number of factors that suggest that the offending in question referred to in this application deserved punishment at the higher end of the scale referred to in R v Verheyen. The applicant was the principal offender, he assaulted the applicant in company, the assault was entirely unprovoked, the assault took place in a public place, the applicant not only punched but also kicked the complainant several times once he had fallen to the ground, the applicant recommenced his attack on the complainant after he had fallen to the ground and was completely unable to attempt to defend himself; the complainant suffered serious and lasting injuries; the applicant's false version in the police interview showed a lack of remorse and the plea of guilty was not an early one.

[34]

[33] I conclude that the sentence imposed was within the applicable range for offences of this type and was not, therefore, manifestly excessive. The application for leave to appeal against sentence should be refused.

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Judgment (34 paragraphs)

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