R v Hodges [1999] WASCA 278

Sentence imposed by District Court on 3 August 1999 set aside

Sentence of 2 years' imprisonment with eligibility for parole substituted

Drage v The Queen, unreported; CCA SCt of WA; Library No 990098; 8 March 1999

R v Jacobs, unreported; CCA SCt of WA; Library No 930610; 29 October 1993

R v O'Malley, unreported; CCA SCt of WA; Library No 980715; 9 December 1998

R v Webb, unreported; CCA SCt of WA; Library No 930524; 1 October 1993

1 JUDGMENT OF THE COURT: This is a Crown appeal against sentence. The respondent pleaded guilty to an indictment in the District Court at Karratha charging him with the offence of unlawfully doing grievous bodily harm on 31 January last. He was sentenced to a community based order for two years with a requirement to complete 120 hours of community service. The appeal is essentially on the ground that the sentence was manifestly inadequate.

2 The facts are that the respondent had been drinking heavily at the Wickham Sports Club in Karratha. When the club closed at about 2.30 am the victim, who was a friend of the respondent, offered to drive him home. The respondent got into the back seat of the vehicle with the victim's girlfriend, the front passenger seat being occupied by another acquaintance of the victim, who was asleep. As they were driving, the respondent commenced to make sexual advances to the victim's girlfriend. She angrily resisted them and the respondent began to verbally abuse her. Eventually, the victim stopped the car and he and his girlfriend told the respondent to get out. At first he refused to do so, but ultimately he did get out of the car. By this time, the victim was also out of the car and there was a verbal exchange between them. The respondent indicated that he wished to fight. The victim and his girlfriend were urging the respondent to get on his way. Suddenly, the respondent struck the victim a heavy blow to the face with a clenched fist. The force of the blow and its immediate consequences were described in the girlfriend's deposition as follows:

"I was looking back and as I turned around I saw Stacey king hit Mort to the face with a clenched fist.

Mort flew back out [sic about] 2 metres and landed flat on his back.

I heard the crunch of his head hit the ground. He was immediately unconscious."

3 Thereafter, as the victim lay unconscious, the respondent commenced to physically assault and abuse the girlfriend. Separate charges were preferred in respect to the offences committed on the girlfriend and the respondent has been sentenced on those charges. It is, however, relevant to the circumstances surrounding the gravity of the offence now under consideration to know that he took the girl by her hair and dragged her a short distance by her hair and then punched her to the jaw with his fist, causing bruising to her lips and cuts to the inside of her mouth.

4 The victim was seriously injured. He suffered a fractured skull and sustained bruising and swelling to his brain. In the medical report, the injury was described as life-threatening. He was in a coma for two weeks and spent about six weeks in a rehabilitation centre. In his victim impact statement, he described his residual disabilities as including the following:

"a) my speech is now very slow and slurred at times;

b) I have lost my sense of taste and smell except that I can smell garlic and chilli;

d) I tire very easily and after two or three hours of any type of activity I need to rest and sleep;

e) I cannot do physical activities that I did before such as swimming, jogging, tai chi. I cannot even cut meat at the dinner table nor can I drive. I have lost a stone in weight and cannot do work working, welding and any handyman jobs that I was fond of doing before the accident."

5 One of the main complaints of the Crown is that the learned sentencing Judge did not give sufficient weight to the seriousness of the consequences of this attack and, in our opinion, that complaint is justified. What his Honour said was this:

"I have seen the victim impact statement and I can certainly accept what was said in relation to the effect that all of this has had on the complainant. The only comment of course I should make with respect to that is that no matter what I do it's not going to return the complainant to his previous good health. Whilst he may be very concerned and upset about the events whatever I do certainly isn't going to have any immediately beneficial effect upon him ... Although it has resulted in a very severe head injury this is one of those cases where although it is a direct consequence of the blow it is not an offence, for example, such as kicking someone in the head where the relationship between the nature of the offending and the severity of the injury is even more direct ... It was obviously unfortunate, and unlucky indeed, that the punch resulted in him falling heavily and suffering a severe head injury. The punch may well not have had that effect. Nonetheless of course it is a matter for which you were responsible."

6 Taken as a whole and in the context of the sentencing reasons as a whole, these passages do reveal that his Honour did not give proper application to the well-accepted principle that, in cases of inflicting grievous bodily harm, the sentence must reflect the seriousness of the consequences to some extent. It is a principle of wide application both here and in the United Kingdom. For an English case to that effect see R v McCarthy (1995) 16 Cr App R (S) 1038. For a case in this Court in which that principle was directly applied see Munmeri v The Queen, unreported; CCA SCt of WA; Library No 8746; 1 March 1991 per Malcolm CJ, Wallace and Pidgeon JJ. The latter case was somewhat more serious than this. The appellant had struck the victim with such force to the head that the blow lifted him off his feet. As in this case, the victim fell to the ground, striking his head and immediately lost consciousness. Thereafter, the appellant kicked him, but the kicks were not shown to have caused additional injuries. The victim suffered head injuries, brain trauma and severe residual disabilities from the fall. The sentence of 5 years' imprisonment was upheld. Malcolm CJ said (at p 9):

"The degree of harm inflicted by the savage blow administered by the applicant in this case was very serious indeed and has had substantial after effects which the learned Judge described. In my view, when one takes into account all the circumstances it has not been demonstrated that the sentencing discretion vested in the learned sentencing Judge has in any way miscarried in this case."

7 A review of the decisions of this Court in recent times in cases involving assaults causing grievous bodily harm show that sentences of immediate imprisonment are usually imposed when the degree of harm done is serious. In McLaughlan v The Queen, unreported; CCA SCt of WA; Library No 950252; 26 May 1995 the sentence was 5 years and 6 months for a two-person attack on a 12-year-old boy who was severely beaten and kicked, leaving him with injuries and residual disabilities of much the same kind and level of seriousness as those suffered by the victim in the case which we are considering. In R v O'Neil, unreported; CCA SCt of WA; Library No 960172; 29 March 1996 five young people attacked a young man who already suffered from a disability. The attack was extremely vicious, including kicking him when he was down and jumping on his head. He was left unconscious and discovered three days later and, as a result of his injuries, suffered left side paralysis and marked impairment of mental and cognitive functions. A sentence of 18 months' imprisonment was increased to 3 years and 6 months. The Court of Criminal Appeal expressly took into account the fact that it was a Crown appeal, there was double jeopardy and the respondent had served much of the non-parole period of the initial sentence. The court observed that the starting-point before taking account of mitigatory features was 5 years' imprisonment.

8 In this case, the consequences of the attack must be regarded as very serious. The victim has been permanently deprived of a great deal of his enjoyment of life and much, if not all, of his earning capacity has been taken away from him. Not only were the consequences very serious, the surrounding circumstances were bad. It was a completely unprovoked attack. To the extent that there was an argument preceding the attack, it had been entirely caused by the respondent's appalling behaviour and refusal to desist when requested to do so. Although it was a single blow, it appears to have been a very heavy blow and the consequences of it were entirely foreseeable, namely, that the victim would fall backwards and his head would hit the hard ground heavily. Immediately following the attack, the respondent showed no remorse. To the contrary, he set upon the victim's girlfriend, viciously attacking her.

9 Looking only at the attack upon the victim of the grievous bodily harm, it was a vicious, unprovoked and dangerous blow, calculated to cause grievous bodily harm and it did so. In those circumstances, a sentence of immediate imprisonment was the only proper sentence.

10 As to the length of the sentence, it must reflect the seriousness of the consequences of the attack. There must be an element of deterrence, punishment and retribution. Having regard to the double jeopardy arising out of the fact that this is a Crown appeal and for the fact that it was a single blow not involving any implement or anything in the nature of a weapon, but bearing in mind the force of the blow, we think the appropriate term should have been 3 years' imprisonment. The respondent is a man of good character with no criminal record to speak of. The attack occurred whilst the respondent was heavily influenced by alcohol. When eventually he calmed down, he rendered assistance to the victim by helping the girl get the victim into the car. His behaviour since shows that he is extremely remorseful for his conduct and has displayed a willingness to reform. He has stopped drinking, or at all events has stopped drinking to excess. Not only has he expressed remorse, he pleaded guilty at the earliest opportunity. He is still quite a young man of 23 years. On account of those mitigatory features and because this is a Crown appeal against sentence, the respondent now having completed a substantial part of the original sentence, we would discount what would otherwise be an appropriate sentence from 3 years to 2 years.

11 The sentence of the learned sentencing Judge should be quashed and a sentence of 2 years' imprisonment imposed in lieu.