Court of Appeal (Qld)|2004-11-26|Before: McPherson and Williams JJA and Philippides, JSeparate reasons for judgment of each member of the Court, each concurring, as to the orders made
McPherson and Williams JJA and Philippides, JSeparate reasons for judgment of each member of the Court, each concurring, as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASESENTENCE – OFFENCES AGAINSTTHE PERSON – where respondent convictedof manslaughter – where sentenced to eight years imprisonment withrecommendationthat he be eligible for post-prison community based release afterthree years and three months – where respondent was involvedin fight withdeceased and others – where lethal punch was delivered when deceased wasnot posing a threat to respondent andafter arrival of police – whethersentence imposed manifestly inadequateR v Bojovic [1999] QCA 206[2000] 2 Qd R 183, citedR v Schubringex parteA-G (Qld) [2004] QCA 418CA No 217 of 2004, CA No 228 of 2004, 5 November
2004, citedR v Simeon [2000] QCA 470
CA No 167 of 2000, 21 November
2000, citedR v Summers [1990] 1 Qd R 92, citedR v Tientjes
ex
parte A-G (Qld) [1999] QCA 480
CA No 229 of 1999, 16 November 1999,
citedR v Whiting
ex parte A-G (Qld) [1994] QCA 425
[1995] 2 Qd R 199, cited
Judgment (23 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] McPHERSON JA: I agree with the reasons of Williams JA, which I have had the opportunity of reading. I agree with the orders proposed in his Honour's reasons.
[3]
[2] WILLIAMS JA: The respondent pleaded guilty in the Circuit Court at Mt Isa on 18 August 2004 to a charge of manslaughter. He was sentenced to eight years imprisonment with a recommendation that he be eligible for post-prison community based release after serving three years and three months. Four days pre-sentence custody was declared to be time already served. From that sentence the Attorney-General has appealed.
[4]
[3] The events giving rise to the charge occurred on 29 September 2002 at Normanton. The deceased and a number of his friends were drinking at the Purple Hotel on that evening. The respondent and his friends were also drinking there. The respondent and the deceased did not know each other prior to the evening in question, but it appears that the two groups did mingle in the course of the evening. There was no suggestion of disharmony between the groups at that stage. Later in the evening each of the groups moved separately to the Central Hotel. By that stage the deceased was heavily intoxicated. It appears that as he alighted from a vehicle outside the Central Hotel he bumped into a man named Logan and apologised. Logan insisted on fighting the deceased and the respondent joined in. The statement of facts put before the sentencing judge included the following: "the prisoner and Logan and perhaps some other people as well fought the deceased by punching him to the ground and kicking him from which the deceased recovered. He got back on his feet and started to lean on the utility." Witnesses noted that the deceased was then bleeding "fairly considerably" from his face, nose, mouth and forehead.
[5]
[4] The statement of facts is not entirely clear as to what happened thereafter. It seems that a number of fights broke out in which the respondent was involved, but the deceased remained leaning against the motor vehicle. A number of people in the vicinity tried to settle the respondent down and pull him away from the fighting. A number of witnesses described the respondent as "totally out of control at that time". Despite attempts to pull the respondent away a series of fights continued. Police then arrived and took steps to separate all the parties. The relevant statement of facts put before the sentencing judge goes on:
[6]
"After being separated, the prisoner walked towards the deceased who was still leaning on the tailgate of his utility, not moving. Both police officers as well as a number of other civilian witnesses watched as the prisoner delivered a single punch to the facial area of the deceased. The deceased stiffened up before falling solidly to the ground, striking the back of his head on the concrete surface."
[7]
[5] The deceased sustained a subdural haematoma and lost consciousness. He never recovered and ultimately life support was switched off on 9 October 2002.
[8]
[6] It is not without significance that after the fatal blow was delivered to the deceased the respondent again started fighting with a number of people in the vicinity and again had to be restrained by the police.
[9]
[7] It should be noted that though the respondent is of aboriginal descent and the deceased was of European descent there was no suggestion that any racial issue provoked the violence.
[10]
[8] The respondent was born on 2 March 1981 making him aged 21 at the time of the offence and 23 at sentence. The learned sentencing judge was told that the respondent had a good work record, and that he had done a traineeship in house construction and horticulture. He also had a wife and two children.
[11]
[9] The respondent had a relevant criminal history. On 1 June 2000 he was dealt with in the Normanton Magistrates Court on two counts of assault occasioning bodily harm; one on 8 October 1999 and the other on 21 October 1999. He was fined $150 on the first and $300 on the second. Then on 17 May 2001 he was convicted in the Normanton District Court of one count of occasioning grievous bodily harm on 8 December 2000. He was sentenced to four months imprisonment wholly suspended for a period of nine months.
[12]
[10] In his sentencing remarks the learned judge observed that the respondent at the time was "intoxicated and acting very aggressively". He noted that the respondent was a strongly built man and that the "fatal blow was delivered gratuitously at a time when the deceased was offering you no provocation and was no threat to you". He said that he took into account the plea of guilty and "the cooperation which that entails with the authorities, although you were not prepared to take part in a record of interview". He described the conduct as "brazen" because the fatal blow was inflicted whilst police were present. He suggested that intoxication was the explanation for that.
[13]
[11] The learned sentencing judge emphasised on a number of occasions that no weapon was involved but he concluded that because the offence was a very serious one a substantial term of imprisonment was called for. He then, without giving any specific reason for so concluding, indicated that he was going to recommend that the respondent be eligible for "parole somewhat earlier than you otherwise would have been".
[14]
[12] Finally the learned sentencing judge concluded "[n]ot without some degree of hesitation" that it was not appropriate in the circumstances to make a declaration that the offence was a serious violent one. His conclusion was based on the fact "that a single blow only was involved and no weapon was used".
[15]
[13] Before this court counsel for the Attorney-General submitted that it was misleading to focus only on the single punch. The deceased was already injured from previous violence to which the respondent was a party, and was not in a position to defend himself, when the final blow was struck. Further, the fatal blow was delivered after the police had intervened and quelled the fighting. In those circumstances, and given the respondent's relevant criminal history, it was submitted that the sentence in fact imposed was manifestly inadequate.
[16]
[14] Relying on cases such as Bojovic[1999] QCA 206; [2000] 2 Qd R 183, Tientjes[1999] QCA 480, Simeon[2000] QCA 470, Schubring[2004] QCA 418, Whiting[1994] QCA 425; [1995] 2 Qd R 199 and Summers[1990] 1 Qd R 92 counsel for the appellant submitted that a sentence in the range eight to ten years with a serious violent offence declaration was called for in the circumstances of this case. The final submission by counsel for the appellant was that a sentence of at least eight years imprisonment with a serious violent offence declaration was called for; that would result in the respondent serving 6.4 years before being eligible for post-prison community based release.
[17]
[15] The submissions of counsel for the respondent concentrated on the fact that the respondent was a young man and that intoxication was a significant factor in the conduct ultimately resulting in the death of the deceased. He contended that it was not misleading to say that a single blow was involved. Death was in fact caused by that single blow and in the circumstances, despite the respondent's criminal history, the sentence imposed was not outside the appropriate range.
[18]
[16] He also submitted that it could not be demonstrated that the learned sentencing judge had erred in the exercise of his discretion in declining to make a serious violent offence declaration. He pointed out that, as demonstrated by a number of decisions, the offence of manslaughter does not always warrant the making of such a declaration.
[19]
[17] Given the persistent violence of the respondent on the night in question, and the brazen act of king hitting a defenceless and injured man notwithstanding the presence of police officers, I am of the view that the sentence in fact imposed was manifestly inadequate. Having regard to the authorities referred to above, and making due allowance for the plea of guilty (though it is difficult to see what defence could have been raised given that the blow was witnessed by police officers and other independent witnesses), a sentence of nine years imprisonment without any recommendation for post-prison community based release is the minimum which could be imposed given the respondent's conduct on the night in question and his record. However, it has not been demonstrated that there was any error by the learned sentencing judge in declining to make a serious violent offence declaration and this court, in the circumstances of this case, ought not itself impose such a declaration.
[20]
[18] I would therefore make the following orders:
[21]
2. Set aside the sentence imposed at first instance and in lieu thereof order that the respondent be imprisoned for nine years to date from 18 August 2004;
[22]
3. Declare that the respondent has spent four days in pre-sentence custody which is time served pursuant to the sentence imposed by this court.
[23]
[19] PHILIPPIDES J: I agree with the reasons for judgment of Williams JA and with the orders proposed.