R v Ford [2011] QCA 208

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] MARGARET McMURDO P: The applicant, Damien Robert James Ford, pleaded guilty at the Southport District Court on 18 February 2011 to unlawfully assaulting Meghan Cormie Colivas and doing her bodily harm (count 1) and unlawfully doing grievous bodily harm to Samuel John Ford (count 2). It is not suggested the applicant and the male complainant are relatives. The applicant was sentenced on count 1 to nine months imprisonment and on count 2 to six years imprisonment with the parole recommendation date fixed at 18 February 2013, that is, after two years. He has applied for leave to appeal against his sentence on the grounds that it is manifestly excessive.

[3]

[2] The applicant was only 18 years old at the time of the commission of the offences which both occurred on 10 October 2009. He had turned 19 by the time of his sentence. He had no criminal history.

[4]

[3] It was common ground that the applicant was larger than the male complainant.

[5]

A few weeks beforehand, they were in a dispute at a party. They met up again in the Coolangatta area on 10 October 2009. The female complainant gave the following version of events upon which the prosecution relied.

[6]

[4] The male complainant and his then girlfriend, the female complainant, had spent the evening in Coolangatta. At about 10.00 pm they were walking along the footpath when they heard the applicant yell out, "Sam Ford, come here, cunt." The applicant and Kieren Pineaha were about six metres behind them. The applicant looked angry and agitated. He charged towards the male complainant who backed away. The applicant yelled out, "You were at the Pottsville party where I bashed your friend." The male complainant said, "Yes, so what? What do you want?" The applicant stood right in front of the male complainant saying, "Fight me, let's go. Let's go now." The male complainant told him to go away and leave them alone. The female complainant screamed at the applicant and told him to leave. He told her to shut up. The male complainant turned to walk away. The applicant screamed, "Come on, fight me. Fight me. Get all your boys." Kieren Pineaha asked the female complainant if the male complainant was her boyfriend. She responded, "Yes, go away." Pineaha told the applicant, "No, let's leave it, let's go. Let's go."

[7]

[5] The female complainant told the applicant that she and the male complainant did not want any trouble, adding, "Let's just go." The applicant was not listening to anyone. He stood there screaming at the male complainant to fight him. The male complainant was texting on his mobile phone as he walked backwards away from the applicant. The applicant yelled at the female complainant and she yelled back, telling him to leave the male complainant alone. The applicant screamed at her and pulled his fist back towards his shoulder as if to punch her and then laughed as she pulled her head back to avoid being hit.

[8]

[6] She stood in front of the male complainant. She saw the applicant come charging towards them. He screamed, "Hide behind your girlfriend." The male complainant did not reply and continued texting. The applicant kept yelling at the male complainant, trying to get him to fight. The female complainant was standing between the applicant and the male complainant. Suddenly the applicant threw a punch over the top of the female complainant towards the male complainant. She suffered two lumps and a cut when the applicant's elbow connected with her head (count 1).

[9]

[7] This blow also connected with the male complainant's face. The male complainant pushed the female complainant out of the way. The applicant grabbed the male complainant who moved backwards and lost his footing. The applicant punched him directly in the face with his fist. It was a big swing which caused the male complainant to flip backwards. His body lifted off the ground and his head hit the road hard and bounced off it (count 2). The applicant and Kieren Pineaha ran off (count 2).

[10]

[8] The male complainant was taken by ambulance to Tweed Heads Hospital at about 12.30 am. He suffered dreadful injuries. He was unconscious, unresponsive and had vomited. There was bruising and bleeding to his face. His pupils were abnormally deviated to the left. He was intubated and artificially ventilated to facilitate a CT scan of his head and neck. The scan showed a 2 cm bruise to the frontal brain, with bleeding tracking along the connective tissue structures around the brain and signs of increased intracranial pressure. There was a fracture to the back of the skull on the left and right sides. There was another fracture to the left side of the skull in the inner apparatus of the ear, extending into the base of the skull bilaterally.

[11]

[9] As a result of these extensive injuries, he was transferred to the Gold Coast Hospital for neurosurgical care. He remained on a ventilator in intensive care for some weeks. A monitor was inserted into his cranium through a burr hole to measure the intracranial pressure which was difficult to control. He also underwent a decompressive craniotomy. The pressure monitor was removed on 16 October and he then made a very slow neurological recovery.

[12]

[10] He remained in a virtually vegetative state for some months. He developed a deep vein thrombosis and was placed on blood thinning medication. He developed pneumonia and required antibiotics. On 17 December 2009, he was transferred to a rehabilitation ward and gradually became more alert and responsive. He still required full nursing care as he had severe disabilities. Without the extensive treatment he received, he most likely would have died. He would continue to improve for up to two years post-injury but he would have a significant severe and permanent disability.

[13]

[11] From October 2010, he was at the Urilup Rehabilitation Unit at Murwillumbah where he reached his full recovery potential and his transfer home was planned. He will continue to have long term disabilities requiring 24 hour care. He cannot walk without a forearm support frame and with others in close attendance. He cannot speak. He is deaf in his left ear. He has double vision so that one of his eyes must be patched at all times. He needs assistance when showering, shaving and in all activities of personal care and hygiene. He is incontinent of bowel and urine. He needs help with feeding and can only eat a modified diet. He has lost his fine motor skills. He previously worked as a carpenter but will never return to any gainful employment. He will need fulltime care for the rest of his life.

[14]

[12] The applicant was interviewed by police shortly after the offences. He said the male complainant was being a "smart arse" and the applicant, who had been drinking, was angry with him over his behaviour at a party a few weeks earlier. The applicant threw one punch at the male complainant after the female complainant moved out of the way. The male complainant was yelling, "Have a go. Have a go." The applicant participated with police in a video re-enactment. Police asked him if he felt what he did was the right thing. The applicant said:

[15]

"Probably not. I seen on the news about the guy that got punched and died from it, I think. I think I now, like it's wrong. I was - 'cause I had been in a few fights before and knocked a couple of guys out cold. I have always been scared that I was going to hurt someone too much, like, from someone trying to fight me. I wish I didn't do it really." (errors as in original)

[16]

[13] In response to an enquiry as to why he decided to punch the male complainant, he stated:

[17]

"Well, I didn't really like him because of when he - what he done to me the first time, but. I've always been brought up just to look after myself and never really - if someone comes at me, never back down, but he didn't really come at me, he was just egging me on, being smart. ...

[18]

I have, with my diabetes and stuff, kind of just really shortens my temper. You know, like if my levels are a bit high and 'cause when I drink my levels go high and I can have a hyper, which means I just really - I get - I just get really angry. Just someone says one thing and I just blow up. ...

[19]

He just said a couple of things and he was just egging me on and I just kind of lost my temper."

[20]

[14] Victim impact statements were tendered from the female complainant; the male complainant (compiled by his mother); and his parents and brothers. Each statement eloquently provided insight into the catastrophic effect of the applicant's offending, predominantly on the male complainant, but also on his family and former girlfriend. Their lives have also been plunged into resulting sadness and turmoil and will never be as they were before.

[21]

[15] The prosecutor at sentence, relying on R v Dietz,[1] submitted that a sentence of between six and seven years imprisonment should be imposed, giving proper recognition to the applicant's plea of guilty.

[22]

[16] Defence counsel made the following submissions. The applicant did not accept unreservedly the version of events given by the female complainant. He conceded, however, that the blow he delivered to the male complainant was a heavy and forceful one resulting in serious injury. The male complainant tried to back away but the applicant punched him causing him to fall to the ground. The applicant immediately walked away, not realising that he had seriously injured him. The applicant had been at an 18th birthday party and was intoxicated. He was an insulin dependent diabetic and was angry on the night. He took responsibility for his actions and cooperated with police in both a frank and honest account in an interview in which he expressed early and genuine remorse, and a re-enactment. He was so remorseful that he had not drunk alcohol since the incident. He was a loving son and a talented and committed footballer, respected, and not considered violent by those who knew him. He lived with his mother and three siblings. His mother, father and a brother were in court to support him.

[23]

[17] Defence counsel tendered a letter from a surf lifesaving club about courses undertaken by the applicant together with 10 references which supported counsel's submission as to the applicant's normally pleasant and helpful disposition, good character and impressive football skills. Counsel conceded that Dietz was a relevant and comparable authority but emphasised that Dietz was 20 (not 18 like the applicant) and was an experienced boxer. Further, Dietz lied to police, had a committal hearing and trial, and had demonstrated no remorse. Counsel conceded the resulting injuries in Dietz were not as severe as the male complainant's injuries in this case. He submitted that the sentencing range here was between four and six years imprisonment, taking into account the plea of guilty, remorse and other mitigating features. He urged the judge to impose a sentence of five years imprisonment with parole eligibility after 20 months.

[24]

[18] In sentencing the applicant, the judge made the following observations. After referring to his antecedents, he recited the circumstances of the offending and the dreadful resulting injuries. The applicant made full and frank admissions and cooperated by taking part in a video re-enactment. He was a diabetic and this affected his temper and anger control when he drank alcohol, as he had on the night of these offences. His Honour referred to the victim impact statements, noting "that the injuries sustained by the complainant have not only been catastrophic for the complainant himself but have effectively destroyed the quality of life of his family members". After noting the prosecutor's submission as to sentence and discussing Dietz, his Honour gave a précis of defence counsel's submissions.

[25]

"A case such as this is not easy for anyone involved. Here, as the result of a very short period of gratuitous violence, two young men have had their lives irreversibly, and catastrophically in the case of the complainant, affected. The [applicant] comes before this Court with no criminal convictions.

[26]

From the material placed before me it seems that this is a classic case where one punch resulting in terrible and permanent injury to the complainant must be visited by a lengthy period of imprisonment."

[27]

[20] His Honour concluded that a sentence of five years imprisonment, as urged on the court by defence counsel, did not give sufficient weight to the male complainant's injuries. On the other hand, a sentence of seven years imprisonment as argued for by the prosecutor was too severe. As noted earlier, his Honour imposed a nine month term of imprisonment on count 1 and a six year term of imprisonment on count 2, with parole eligibility fixed after two years.

[28]

[21] The applicant now contends that a careful consideration of Dietz demonstrates that Dietz's offending was objectively demonstrably worse than the applicant's. Unlike the applicant, Dietz did not cooperate with the authorities or demonstrate remorse, so that the applicant should have received a lesser sentence than Dietz's six years imprisonment. The sentence imposed gave insufficient weight, he contends, to the applicant's remorse, a factor additional to his guilty plea. This Court should substitute a head sentence on count 2 of five years imprisonment, with suspension after serving 18 months, to give proper recognition to the applicant's remorse, youth, lack of criminal history and promising prospects of rehabilitation: see R v Kinersen-Smith & Connor; ex parte A-G (Qld).[2]

[29]

[22] This case, like Dietz, was, as the primary judge identified, another heart-wrenching example of the calamitous impact on the lives of two young people, and their families and loved ones, through alcohol-fuelled gratuitous street violence in the form of a single, powerful punch. The complainants were not the aggressors and actively tried to avoid conflict. The male complainant was smaller than the applicant and sought to back away. The female complainant urged the applicant to leave them alone. The injuries the male complainant received from the applicant's single but forceful punch and the resulting impact with the ground are life-threatening, permanent and grossly disabling. The punishment must reflect these dreadful injuries, even though they were inflicted by just a single punch from a remorseful young man with no prior convictions and with genuine remorse and promising rehabilitative prospects, who cooperated with the authorities and pleaded guilty: see R v Amituanai.[3] There was the additional aggravating feature of the assault on the female complainant. Denunciation and general and personal deterrence were important considerations in arriving at a just punishment. The male complainant's injuries were considerably worse, not only than in Dietz, but also than in R v Bryan; ex parte A-G (Qld)[4] and R v Thomason; ex parte A-G (Qld).[5] Had the applicant gone to trial and without his many matters in mitigation, the offending would have warranted a sentence in the range of seven or even eight years. See for example, R v Kirkby[6] where 9.5 years imprisonment was imposed, and R v Parker[7] where 8.5 years imprisonment was imposed for the offence of grievous bodily harm.

[30]

[23] The maximum penalty on count 2 was 14 years imprisonment and on count 1, seven years imprisonment. The grave injuries suffered by the male complainant made this a serious example of the offence of grievous bodily harm, despite the many matters in the applicant's favour. The sentence imposed was a severe one for an 18 year old without prior convictions and with promising rehabilitative prospects. But it adequately balanced the significant mitigating features against the dreadful and permanent injuries suffered by the male complainant and the resulting catastrophic impact on his family and loved ones. The applicant's promising rehabilitative prospects and antecedents suggest he will be a very sound candidate for parole when he becomes eligible on 18 February 2013. A minimum of two years in prison followed by many years on parole will be a heavy burden for the young applicant and his family, but it is far less onerous than the life-long burden to be carried by the male complainant and his family. The sentence was not manifestly excessive. The application for leave to appeal must be refused.

[31]

Application for leave to appeal against sentence refused.

[32]

[24] MUIR JA: I agree that the application for leave to appeal against sentence should be refused for the reasons given by Margaret McMurdo P.

[33]

[25] BODDICE J: I have had the advantage of reading the draft reasons for judgment of McMurdo P. I agree with those reasons and that the application for leave to appeal against sentence should be refused.

[34]

[1] [2009] QCA 392.

[35]

[2] [2009] QCA 153, [26].

[36]

[3] (1995) 78 A Crim R 588; [1995] QCA 80.

[37]

[4] (2003) 137 A Crim R 489; [2003] QCA 18.

[38]

[5] [2011] QCA 9.

[39]

[6] [2001] QCA 37.