Court of Appeal (Qld)|2010-08-13|Before: Chief Justice and Fraser JA and Atkinson J, Separate, reasons for judgment of each member of the Court, Fraser JA and Atkinson J, concurring as to the orders made, Chief Justice, dissenting
Chief Justice and Fraser JA and Atkinson J, Separate, reasons for judgment of each member of the Court, Fraser JA and Atkinson J, concurring as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – where applicant pleaded guilty to assault occasioning bodily
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLYEXCESSIVE ORINADEQUATE – where applicant pleaded guilty to assault occasioning bodilyharm, breaking and entering a dwellinghouse with intent to commit anindictable offence, doing grievous bodily harm with intent, robbery while incompany and armed withan offensive weapon, and using other personal violence– where applicant seeks leave to appeal on the ground that the sentenceofeight years, imposed in relation to the offence of doing grievous bodily harmwith intent, was manifestly excessive and becausethe sentencing judge failed togive proper weight to considerations in s 9 Penalties and Sentences Act1992 (Qld) – where complainant suffered a range of injuries andoffence was violent – whether sentence imposed was manifestlyexcessiveCRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE
– APPEALS BY CROWN – EXERCISE OF DISCRETION –
OTHER MATTERS
– where respondent committed numerous offences on successive days in
relation to the one victim – where
respondent sentenced to eight years
imprisonment with a recommendation for parole after two and a half years for the
offence of doing
grievous bodily harm with intent – where lesser terms of
imprisonment imposed in relation to other offences committed by respondent
– where all terms of imprisonment to be served concurrently – where
Attorney-General appeals the sentence imposed for
the offence of grievous bodily
harm with intent on the grounds of inadequacy and that the sentencing judge
erred in recommending
early parole – where appellant contends that the
eight year sentence should be varied by deleting the recommendation as to
parole
and adding a serious violent offence declaration – whether the eight year
sentence should be varied by deleting the
recommendation as to parole and adding
a serious violent offence declaration
Penalties and Sentences Act 1992 (Qld), s 9
Criminal Code Act
1899 (Qld), s 669A
AB v The Queen (1999)198 CLR 111
[1999] HCA 46, applied
R v
Amituanai (1995) 78 A Crim R 588
[1995] QCA
80, distinguished
R v Beer [2000] QCA
193, cited
R v Blenkinsop [2007] QCA
181, cited
R v Booth [2001] 1 Qd R 393
[1999] QCA
100, applied
R v Chambers, Harrison and Fisher
ex parte A-G (Qld)
(2002) 136 A Crim R 89
[2002] QCA
534, applied
R v Darke [1996] QCA
303, distinguished
R v Diana & A-G (Qld) [1996] QCA
505, distinguished
R v Dullroy & Yates
ex parte A-G (Qld) [2005] QCA
219, applied
R v Eade [2005] QCA
148, cited
R v Fahey, Solomon and AD [2002] 1 Qd R 391
[2001]
QCA 82, distinguished
R v Granato [2006] QCA
25, applied
R v Holland [2008] QCA
200, applied
R v Horne [2005] QCA
218, applied
R v
Kinersen-Smith & Connor
ex parte A-G (Qld) [2009] QCA
153, considered
R v King & Morgan
ex parte A-G (Qld) (2002)
134 A Crim R 215
[2002] QCA
376, cited
R v Lacey
ex parte A-G (Qld) [2009] QCA
274, cited
R v Laing [2008] QCA
317, applied
R v Lovell [1999] 2 Qd R 79
[1998] QCA
36, applied
R v McDougall & Collas [2007] 2 Qd R 87
[2006]
QCA 365, cited
R v Mikaele [2008] QCA
261, applied
R v Mitchell [2006] QCA
240, applied
R v Nolan [2009] QCA
129, cited
R v Perussich [2001] QCA
557, applied
R v Taylor & Napatali
ex parte A-G (Qld) (1999)
106 A Crim R 578
[1999] QCA
323, applied
R v Tiburcy, Gardner and Zeuschner (2006) 166 A Crim
R 291
[2006] VSCA 244, applied
The Queen v Shrestha (1991) 173 CLR
48
[1991] HCA 26, applied
Judgment (133 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where applicant pleaded guilty to assault occasioning bodily harm, breaking and entering a dwelling house with intent to commit an indictable offence, doing grievous bodily harm with intent, robbery while in company and armed with an offensive weapon, and using other personal violence - where applicant seeks leave to appeal on the ground that the sentence of eight years, imposed in relation to the offence of doing grievous bodily harm with intent, was manifestly excessive and because the sentencing judge failed to give proper weight to considerations in s 9 Penalties and Sentences Act1992 (Qld) - where complainant suffered a range of injuries and offence was violent - whether sentence imposed was manifestly excessive
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL -APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - OTHER MATTERS - where respondent committed numerous offences on successive days in relation to the one victim - where respondent sentenced to eight years imprisonment with a recommendation for parole after two and a half years for the offence of doing grievous bodily harm with intent - where lesser terms of imprisonment imposed in relation to other offences committed by respondent - where all terms of imprisonment to be served concurrently - where Attorney-General appeals the sentence imposed for the offence of grievous bodily harm with intent on the grounds of inadequacy and that the sentencing judge erred in recommending early parole - where appellant contends that the eight year sentence should be varied by deleting the recommendation as to parole and adding a serious violent offence declaration - whether the eight year sentence should be varied by deleting the recommendation as to parole and adding a serious violent offence declaration
A W Moynihan SC, with C Kershaw, for the respondent
[32]
Director of Public Prosecutions (Queensland) for the respondent
[33]
Director of Public Prosecutions (Queensland) for the appellant
[34]
[1] CHIEF JUSTICE: On 23 February 2010, Victor Allan Honeysett was sentenced in the District Court to the following concurrent terms of imprisonment:
[35]
(a) assault occasioning bodily harm committed on 15 April 2009: two years;
[36]
(b) breaking and entering a dwelling house with intent to commit an indictable offence, aggravated by his using actual violence, being in company, and damaging property, an offence committed on 16 April 2009: five years;
[37]
(c) doing grievous bodily harm with intent to do grievous bodily harm (on 16 April 2009): eight years, with a recommendation for parole after two and a half years; and
[38]
(d) robbery while in company and armed with an offensive weapon, and using other personal violence (also on 16 April 2009): four years.
[39]
[2] He seeks leave to appeal on the ground that the sentence of eight years is manifestly excessive, and because the sentencing Judge failed to give proper weight to considerations in s 9 of the Penalties and Sentences Act 1992 (Qld). The Honourable the Attorney-General has separately appealed, on the grounds of inadequacy, and particularly, that the Judge erred in recommending early parole. The Director of Public Prosecutions, appearing for the Attorney, contends a serious violent offence declaration should have been made (which would necessitate the serving of at least 80 per cent of the term of imprisonment imposed).
[40]
[3] At the time of committing the offences, Mr Honeysett was 19 years of age. About 12 months before committing them, he had been placed on probation for eight months for an offence of assault occasioning bodily harm committed on 19 January 2008. He was also then ordered to pay $8,465 compensation. In committing that offence, he punched another person in the head for no apparent reason, rendering him unconscious and causing serious injuries to his face and ribs.
[41]
[4] The instant offences, to which Mr Honeysett pleaded guilty, were committed on successive days, and concerned the one victim.
[42]
[5] On 15 April 2009, Mr Honeysett was one of a group of people gathered outside his girlfriend's house. The complainant had previously borrowed $20 from the girlfriend, and had not yet repaid it. Honeysett confronted the complainant and demanded repayment. When that did not occur, Honeysett punched the complainant in the face. The complainant fell onto a bitumen road-way, hitting his head. He lapsed into unconsciousness and remained so for 10 minutes. Other persons present assisted the complainant, including calling an ambulance. When the complainant recovered consciousness, he waited for the ambulance, but left after an hour's waiting and went home to bed. The blow had caused a tooth to penetrate his lip, and bruising of the back of his head.
[43]
[6] The complainant spent the next day, 16 April 2009, convalescing at home. At about 7 pm, Honeysett, who had been drinking, arrived at the complainant's house in company with his brother, James Terrence Robert Honeysett. The complainant heard a knock at the front door and saw Honeysett through an open window. Honeysett claims the complainant threw something at him (though this was not said to amount to provocation, and Honeysett suffered no injury). Honeysett then punched the complainant through the window. The complainant closed the window and retreated into the house to fetch a stick with a view to self-defence. Honeysett kicked the door open and attacked the complainant, wrestling him on the floor. James Honeysett joined in, punching the complainant. The complainant discarded the stick. Honeysett retrieved it and hit the complainant to the point of unconsciousness. Honeysett then embarked upon a protracted and brutal assault on the defenceless complainant. Honeysett subsequently said he meant to inflict serious injury. He also said that he discarded the stick because of his view it was not causing sufficient pain and injury. He repeatedly punched and kicked the complainant, choking him and gouging at his eyes. Honeysett desisted only when his older brother physically restrained him. Honeysett later told the investigating police that if his brother had not stopped him, the complainant would probably have died.
[44]
[7] Honeysett and his brother then robbed the complainant of his wallet, phone and watch, and left him in an unconscious state. They donned further clothing to hide the blood, and went elsewhere to resume their drinking.
[45]
[8] The complainant regained consciousness some time that night, and went to bed. He woke up the following afternoon. He was taken by another man to the Ipswich Hospital for assessment, and then to the Princess Alexandra Hospital for specialized treatment.
[46]
[9] The complainant suffered a traumatic subarachnoid haemorrhage, a blow-out fracture of the left orbital wall, a nasal fracture, upper and lower lip lacerations, a left upper eyelid laceration, facial abrasions, abrasions to the torso and upper limbs, and bleeding in the anterior chamber of the eye. The fractures needed surgery. He suffered pain, swelling, decreased visual acuity in the right eye, impaired eye movement in the left eye, facial scarring and altered cognitive functioning. He spent 12 days in hospital, and needed full-time care for 12 months upon discharge. He has undergone extensive ongoing treatment. As at 16 February 2010, he was working with government agencies to facilitate a return to work. The sentencing Judge was provided with a "victim impact statement" from the complainant's sister.
[47]
[10] Point was made of there being no report as to continuing disability. The primary Judge was not confronting a damages claim. For sentencing purposes, the significant point was that Honeysett visited very serious injuries upon the complainant, extending to injury to the brain. Evidence of substantial continuing disability (as, for example, in Fisher [2002] QCA 534 and Fahey and Solomon [2001] QCA 82) would have rendered this case even more serious, but it remains serious because of the extent of injury inflicted on the complainant, and what is known of his treatment and subsequent history.
[48]
[11] The gravity of the offending may be further illustrated by these following statements made by Honeysett during the police interview:
[49]
"Well I pretty much continually punched him in the face and I choked him a little and I tried to pull his eyeball out of his head."
"It just made me angry and I just kind of got a bit too headstrong and lost it; I couldn't stop."
"It wasn't - because for me that night it was like a very - that made me feel like really good to do that in a sick way."
When asked what made him feel good, Honeysett said: "Just hurting another human being."
Question: "This incident here, is it solely about $20?" Answer: "Well pretty much. I didn't - like he never made a move on Sam." Question: "So you're - you're happy to say that this was all about $20?" Answer: "Well while hurting him it did cross my mind a few times, like you'd better stay away from Sam, you piece of shit. So it was at first, but then it kind of turned into me just wanting to hurt him."
[50]
[12] The Director of Public Prosecutions, Mr Moynihan SC, offered this summation of the principal considerations:
[51]
"The respondent forced his way into the complainant's home and, for no good reason, while armed and in company, engaged in a gratuitous, protracted and brutal assault on the defenceless man intending to cause him serious injury and anticipating his death. He stopped only because his co-offender intervened. He callously robbed the complainant and left him in an unconscious state. The complainant suffered very serious injuries requiring surgical intervention and which have long term consequences. The savage and sadistic nature of the assault is particularly concerning. The respondent had previously been sentenced for an assault occasioning bodily harm and the report tendered and relied on by the respondent below discloses a long history of violent and anti-social behaviour including fighting and drowning a former girlfriend's cat for pleasure. The only matters in the respondent's favour are his confession to police, plea of guilty and the fact that he was 19 years old when he offended. The value of the plea is diminished by the overwhelming nature of the Crown case and the fact that the Crown had 15 witnesses at court on the day of committal when the respondent elected to proceed by way of full hand up brief...The weight to be accorded the respondent's young age is diminished because of his history of aggressive and violent behaviour."
[52]
[13] Defence Counsel provided the sentencing Judge with a report of a psychologist, Mr Peter Jordan. Honeysett experienced a substantially deprived upbringing. In the year 2008, he suffered a serious injury at work, losing three toes and half of a fourth, permanently limiting his mobility. He experiences "extremely low self-esteem". The psychologist says:
[53]
"The overall picture of this young man is that he can be triggered into violent and psychotic rages at times when he feels threatened and/or rejected. By behaving very violently towards others, he briefly overcomes his grave sense of inadequacy. He will resort to violence even when the threat before him is not overt - for instance, the example he offered of drowning his girlfriend's cat simply to overcome his feelings of despondency at being rejected by another female to whom he had formed an attachment."
[54]
The psychologist confirms a need for both psychiatric and psychological treatment. He adds:
[55]
"Effective treatment of his psychotic symptoms would significantly reduce the likelihood of similar reoffending. At the same time, it will be very important to address longstanding issues related to his very poor self-esteem, his ongoing symptoms of clinical depression and the issues surrounding adjustment to his workplace injury."
[56]
[14] The features emphasized by Honeysett's Counsel, Mr D Lynch, are his youth, his cooperation, his pleas of guilty, his remorse, his good work record, that his offending can "properly be regarded as a coping mechanism for his chronic feelings of inadequacy and low self-esteem", that he has insight into his psychological function and wishes to change, his mental health problems including depression and hallucinations, and the impact of his decreased mobility upon his incarceration.
[57]
[15] It is convenient to address first the contention that the eight year sentence, with parole eligibility recommended after two and a half years, is manifestly excessive.
[58]
[16] As to youth, while obviously it remains a relevant consideration (R v Mikaele [2008] QCA 261, paras 26-28), its significance is diminished by s 9(4) of the Penalties and Sentences Act because of the violent nature of the offending. In this case, among the factors to which the sentencing court was bound to give primacy, was community protection. The content of the psychologist's report bore on that issue.
[59]
[17] Mr Lynch relied on a number of cases, Perussich [2001] QCA 557, Mitchell [2006] QCA 240, Beer [2000] QCA 193, Laing [2008] QCA 317, Holland [2008] QCA 200, and Granato [2006] QCA 25, for a contention that "a sentence in the range of 5-7 years is appropriate with an accompanying early recommendation for parole". In response to the Attorney's appeal, Mr Lynch submitted that the eight year term imposed involved the imposition of a penalty "at the top of the appropriate 'range' but (one which) makes appropriate allowance for the competing sentencing imperatives set out in s 9...such an approach meets the sentencing objectives of general and personal deterrence, community expectation of denouncement of and protection from violent crime, yet allows for the rehabilitation and replacement into the community of a young offender, in a supervised environment and over a lengthy period of time".
[60]
[18] On the other hand, Mr Moynihan submitted that cases such as Granato and Laing were unhelpful, because they did not involve "the same level of extreme violence on a defenceless, unconscious victim where the assault only came to an end because of the intervention of a third party. Further, they did not rob the victim." Mr Moynihan particularly relied on Mikaele, supra, and Eade [2005] QCA 148.
[61]
[19] Mikaele was a 17 year old who pleaded guilty to doing grievous bodily harm with intent. He was part of a group which without provocation attacked a person waiting for a train. By contrast with the instant attack, that one was not premeditated, no weapon was used and Mikaele was not solely responsible for the injuries inflicted. Mikaele did however continue to assault after the victim fell into unconsciousness and the co-offenders had desisted. He told the police that he had "gone psycho" during the attack. The physical and psychological effects on the victim were generally comparable with those suffered by the instant complainant. Mikaele's only prior conviction was for public nuisance, although he had, through other outstanding offending, demonstrated a tendency to act violently to members of the community. He was sentenced to nine years imprisonment with a serious violent offence declaration. There is substantial comparability between that case and this, notwithstanding the range of offending which confronted Mikaele.
[62]
[20] Eade was a 17 year old man with no prior criminal history. He attacked another man after he had damaged his motor vehicle. He beat the other man with a hockey stick and then ran over him with his car. That complainant sustained generally comparable injuries to those sustained by the instant complainant. Eade pleaded guilty to causing grievous bodily harm with intent, and was imprisoned for 10 years with the automatic serious violent offence declaration.
[63]
[21] The decisions in Mikaele and Eade justified the term of eight years imprisonment which was imposed here, and militate against a contention that that term was manifestly excessive.
[64]
[22] The application for leave to appeal against sentence should accordingly be refused.
[65]
[23] The Attorney-General contends that the eight year sentence should be varied by deleting the recommendation as to parole and adding a serious violent offence declaration.
[66]
[24] Mikaele challenged the serious violent offence declaration before the Court of Appeal. Mackenzie AJA, with whom the other members of the court agreed, said this (para 34):
[67]
"In my view, the submission that the offence was not beyond the norm for offences of doing grievous bodily harm with intent has no substance. There was an attack on a member of the public waiting for public transport. He had done nothing to provoke the attack. He was obviously at a disadvantage because of intoxication. While the applicant did not instigate the attack, the victim almost immediately fell to the ground once it started and was probably unconscious for most of the time it was carried out. The applicant joined in the assault and engaged in repeatedly punching, kicking, and stamping on the victim. The description given to the police of his own role by the applicant graphically confirms this. It also demonstrates an almost incomprehensible degree of callousness and disregard for the likelihood that the victim would be seriously injured. Then, after all the others had ceased, the applicant returned to inflict more violence on the unconscious victim. That, according to the evidence, also involved attacking the victim's head. The sentencing judge said that it seemed to him that the nature of his attack on the victim deserved the appellation of a serious violent offence. It is an inevitable conclusion that the sentencing judge did not err in that regard."
[68]
[25] I refer also to what was said in R v McDougall and Collas [2006] QCA 365 at para 21:
[69]
"The considerations which may lead a sentencing judge to conclude that there is good reason to postpone the date of eligibility for parole will usually be concerned with circumstances which aggravate the offence in a way which suggests that the protection of the public or adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required by the Act having regard to the term of imprisonment imposed. In that way, the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question, and, so, outside 'the norm' for that type of offence."
[70]
[26] In R v King & Morgan; ex parte A-G (Qld) [2002] QCA 376 this was said (p 11):
[71]
"The obvious purpose of the serious violent offender regime is to strengthen the sentences to be served by serious violent offenders. That purpose is subverted if in cases obviously calling for a declaration, it is not made."
[72]
[27] The learned Judge declined to make a declaration because of the psychological report, Honeysett's youth, and his having only one prior conviction - offsetting his comments to the police and that prior conviction. But it was the brutality, indeed sadism, of this prolonged unprovoked attack, in substantial part with the victim unconscious, and ceasing only when Honeysett was pulled away by his brother, an attack which was a continuation of that of the previous day, and with serious consequences for the victim, including brain injury, which strongly supported the making of a declaration.
[73]
[28] The circumstances tabulated by Mr Lynch, covering principally matters personal to Honeysett, do not warrant the view that a declaration should not be made in this case. Mikaele and Eade were both 17 years old, and Eade had no prior criminal history. The extraordinary and gratuitous level of violence inflicted on this complainant plainly put the case "outside the norm" for this type of offence. I find myself in substantial disagreement with the sentence imposed below (R v Lacey; ex parte A-G (Qld) [2009] QCA 274), because of the absence of a serious violent offence declaration.
[74]
[29] Acknowledging and respecting the legislative intention, this should be seen as a classic example of a serious violent offence. The question to be answered is whether Her Honour erred in principle in not making a declaration, in deference to Honeysett's personal circumstances. In my respectful view she did: the nature of the offending, notwithstanding those personal circumstances, compelled the making of a declaration.
[75]
[30] The adding of a declaration would not, in context of Mikaele and Eade especially, warrant reduction of the eight year term. Imprisonment for eight years, coupled with a declaration, is the sentence which should now be imposed, consistently with R v Lacey, supra, paras [147], [150]. That is the 'proper' sentence, in terms of s 669A of the Criminal Code Act.
[76]
[31] The appeal by the Attorney-General should be allowed, with an order that the sentence imposed on count 3, doing grievous bodily harm with intent to do grievous bodily harm, be varied by deleting the recommendation as to parole eligibility, and adding a declaration that the respondent's conviction of that offence is a conviction of a serious violent offence.
[77]
[32] FRASER JA: I have had the advantage of reading the draft reasons of the Chief Justice and Atkinson J.
[78]
[33] As appears from their Honours' reasons, the seriousness of the applicant's offending arises from an aggregation of circumstances. Importantly, the applicant committed his most serious offences in the context that the day before he had attacked the same complainant and rendered him unconscious; in that context, the applicant broke into the complainant's home and embarked upon a determined and violent attack; he persisted in the attack after he had rendered the complainant unconscious; and only a fortunate intervention by the applicant's brother halted the attack. The applicant himself anticipated that the complainant might die and, predictably, the complainant sustained serious injuries. The applicant then callously robbed the complainant and left him injured and unconscious.
[79]
[34] Taking those matters into account I do not accept that the sentence, though severe, was manifestly excessive. Notwithstanding those factors which operate in the applicant's favour, a term of imprisonment as long as eight years with eligibility to apply for parole after two and a half years, was within the sentencing discretion. However, in my respectful opinion a sentence of eight years imprisonment with a serious violent offence declaration would be too severe and inconsistent with the appropriate range suggested by decisions of this Court.
[80]
[35] In R v Perussich [2001] QCA 557, this Court varied a sentence of nine years imprisonment with a serious violent offence declaration by omitting the declaration. That 40 year old offender struck the complainant at least three or four times in the head with a gun and then shot the complainant in the leg. It is important to note that Perussich's offence involved some seriously aggravating features which are absent here. In particular, the use of a firearm in an assault has always been regarded as calling for very serious punishment, for obvious reasons. The evidence in that case demonstrated that the complainant was left with a serious disabling injury and a depressive illness. It is of concern that in this case the sentencing judge was not assisted by medical evidence about any permanent consequences for the complainant arising from his injuries. Whilst the complainant plainly suffered serious injuries and it must be on the cards that he was permanently affected, this Court, like the sentencing judge, is obliged to determine the application and appeal in the absence of any evidence that the complainant sustained permanent, serious disabilities.
[81]
[36] Perussich's personal circumstances also seem to have been much worse than this applicant's. Perussich had three previous convictions for offences involving violence, including one offence of unlawful assault for which he had been imprisoned for two months. Finally, that offender was sentenced after a trial in which the jury rejected his version of events, whereas the applicant admitted his offence, pleaded guilty, and cooperated with the authorities. When those features and the applicant's relative youthfulness are borne in mind, the overall sentence proposed for the Attorney is seen to be unduly severe. That conclusion is consistent also with R v Granato [2006] QCA 25, R v Mitchell [2006] QCA 240, R v Holland [2008] QCA 200 and R v Laing [2008] QCA 317. I respectfully agree with Atkinson J's analysis of those decisions.
[82]
[37] A severe sentence was certainly appropriate, but a sentence of eight years imprisonment, with earlier release depending upon the result of an application for parole no earlier than after two and a half years in custody, is a severe sentence. Despite the undoubtedly serious features of the applicant's offending, and taking into account particularly the applicant's youthfulness, his cooperation, his admissions of matters otherwise unknown to police, and his plea of guilty, I am not persuaded that the sentence proposed for the Attorney would be the proper sentence in all of the circumstances.
[83]
[38] I agree with the orders proposed by Atkinson J.
[84]
[39] ATKINSON J: This is the determination both of an application for leave to appeal by Victor Allan Honeysett on the ground that the sentence of eight years is manifestly excessive and of an appeal by the Attorney-General that the failure to impose a serious violent offence declaration makes the sentence manifestly inadequate.
[85]
[40] The facts of this matter have been set out in detail by the Chief Justice which relieves me from having to recite the facts again. This offending, as the Chief Justice has pointed out, has a number of very serious aspects.
[86]
[41] Because of a relatively minor matter (the failure by the complainant to repay $20 said to be owed to the applicant's girlfriend), the applicant punched the complainant on one occasion rendering him unconscious and sought him out on the following day when he kicked in the door of the complainant's home and beat him, losing control, causing injuries including fractures to the complainant's eye socket and a subarachnoid haemorrhage. The home invasion aspect of this offence was of particular concern.[1]
[87]
[42] The applicant had committed an offence of violence a year earlier and a psychological report showed disturbing features such as the applicant's capacity for uncontrolled anger and the sense of power he appears to have obtained from the gratuitous drowning of a cat. All of those matters warranted a condign punishment for these serious offences.
[88]
[43] However there were factors in the applicant's favour. He was only 19 years of age at the time he committed the offences. He had a good work record, encouraging references from those who knew him and was apparently remorseful. His youth was a relevant and important factor to be taken into account whilst sentencing him. As Mackenzie AJA observed in R v Mikaele [2008] QCA 261 at [26]:
[89]
"The young age of the applicant is clearly one factor that has to be considered in deciding whether the sentences imposed are manifestly excessive. The effect of immaturity on culpability is often recognised as a factor which mitigates the seriousness of offending behaviour. Regard is also had to the benefit to society if there are demonstrated prospects of rehabilitation of the youthful offender. This approach has its greatest application where the offender has previously been of good character, there is evidence of a capacity for rehabilitation, and the issue is whether a community based order should be made rather than a requirement to serve some time in actual custody (eg R v Taylor & Napatali; ex parte Attorney-General of Queensland(1999) 106 A Crim R 578; [1999] QCA 323). It is also a factor to be taken into consideration in deciding whether the sentence is manifestly excessive in that a serious violent offence declaration has the consequence of 80 per cent of whatever sentence is imposed has to be served before eligibility for parole."
[44] The applicant's youth remains a relevant factor notwithstanding the amendment to the Penalties and Sentences Act 1992 ("P&SA") in 1999 so that the principle that a sentence of imprisonment should only be imposed as a last resort does not apply to offences that involve the use of violence against another person. In R v Dullroy; ex parte Attorney-General (Qld), White J (as her Honour then was), with whom McMurdo J agreed, quoted with approval at [33] from the judgment of Byrne J, with whom Davies JA and, generally Pincus JA agreed, in Lovell v The Queen [1998] QCA 36; [1999] 2 Qd R 79 at 83:
[92]
"The 1997 amendments reflect a legislative conviction that less hesitation by the Courts in requiring a violent offender to undergo the rigours of imprisonment conduces to the protection of the community from the offender and from others who might be tempted to commit similar offences. Nonetheless youth remains a material consideration; for the rehabilitation of youthful, even violent, offenders, especially those without prior, relevant convictions, also serves to protect the community. And among the matters to which the court is required by s 9(4) to pay primary regard are 'the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed' (g), and 'the antecedents, age and character of the offender'(h)."
[93]
This statement was affirmed by McPherson JA in R v Taylor and Napatali; ex parte Attorney-General (Qld) [1999] QCA 323; (1999) 106 A Crim R 578 at 585-586.
[94]
[45] This was not an offence of gratuitous street violence committed against an unsuspecting member of the public as was the case in R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80 (where the applicant, who was one of a group of drunken young men, delivered a karate kick to the head of a stranger at a taxi rank which had left the victim with serious long term physical and neurological injuries); R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18; R v O'Grady; Ex parte Attorney-General (Qld) [2003] QCA 137; (2003) 138 A Crim R 273; R v Tupou; ex parte A-G (Qld) [2005] QCA 179; R v Price [2006] QCA 180; R v Anning [2008] QCA 161; and R v Mikaele [2008] QCA 261. However, even in such a case, as Mackenzie AJA held in R v Mikaele, the youth of the offender is relevant.
[95]
[46] In R v Kinersen-Smith & Connor; ex parte AG (Qld) [2009] QCA 153, the court dismissed an appeal by the Attorney-General against a sentence of two and a half years imprisonment suspended after six months imposed on the 17 year old and 18 year old respondents who had no previous criminal history. The offenders committed what the court referred to as a "brutish and mindless" assault on a stranger in the early hours of the morning in an inner city street. The attack left the victim with permanent loss of sight in one eye. The sentence is not comparable because the offence in that case was grievous bodily harm and not, as here, grievous bodily harm with intent.[2] However, the sentencing principles are relevant. Holmes JA, with whom McMurdo P and Lyons J agreed, quoted at [26] with approval from R v Mules [2007] QCA 47 at [21] where McMurdo P, with whom Keane JA and Mullins J agreed, held:
[96]
"... youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and cooperated with the administration of justice, even where they have committed serious offences like [robbery with violence], should receive more leniency from courts than would otherwise be appropriate. That is because rehabilitation of young offenders is in the community interest ..."
[97]
[47] Also relevant to the sentencing discretion was the applicant's response to an earlier court order. He had committed an offence of assault occasioning bodily harm more than a year earlier but had successfully completed probation of eight months in respect of that assault and paid $8,465 compensation.
[98]
[48] This was not a series of violent anti-social offences carried out over many months whilst on bail, as in Re v Kinersen-Smith & Connor; ex parte A-G (Qld). Nor did the applicant take or use a weapon in his attack on the complainant (except briefly using a piece of wood with which the complainant had armed himself) unlike R v Darke [1996] QCA 303; R v Diana [1996] QCA 505; R v Frazer [1997] QCA 306 (where the offenders took a large and very heavy rock with them when they broke into the complainant's house to collect a debt); R v Granato [2006] QCA 25 (where the offender was armed with a baton but also struck the complainant with a baseball bat and a Club lock with which the co-offenders had come armed); and R v Blenkinsop [2007] QCA 181 (where the offender, who led a well planned vigilante style home invasion, was armed with a sword, while his co-offenders were armed with a steak knife and a baseball bat.)
[99]
[49] The extent of injury to the victim is relevant to punishment: R v Chambers, Harrison and Fisher, ex parte A-G (Qld) [2002] QCA 534. This is not a case where there was evidence of continuing serious disability to the complainant as for example in R v Amituanai (where the complainant suffered brain damage and some right side paralysis as well as other physical, neurological and psychological deficits); R v Fahey and Solomon and AD [2001] QCA 82 (where the complainant suffered a serious head injury from being hit with a brick and repeatedly kicked to the head leading to permanent chronic organic brain syndrome with severe cognitive deficits, memory deficits, inability to walk and complete dependence for all personal needs) or R v Chambers, Harrison and Fisher; ex parte A-G (Qld) (where the complainant had been left in a persisting vegetative state).
[100]
[50] As the learned Chief Justice has observed, community protection is among the factors to which the sentencing court was bound to give primacy. The learned sentencing judge was of the view that the community was best protected by imprisoning the applicant and following that with a lengthy period of supervision when released from custody. This is similar to views expressed about the sentencing discretion in R v Price [1978] Qd R 68 at 70-71; R v Lovell [1998] QCA 36; [1999] 2 Qd R 79 at 83 and R v Dullroy; ex parte Attorney-General (Qld) [2005] QCA 219 at [51]- [55], [59]. In my view, the Attorney-General has not demonstrated that her Honour was incorrect in that assessment.
[101]
[51] There is as Maxwell P said in R v Tiburcy, Gardner and Zeuschner [2006] VSCA 244; (2006) 166 A Crim R 291 "The very considerable public interest in the rehabilitation of offenders".[3] Brennan and McHugh JJ explained in The Queen v Shrestha [1991] HCA 26; (1991) 173 CLR 48 at 63:
[102]
... the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public.
[103]
[52] The public benefit will be served by the applicant's strict supervision on parole with the consequence that if he breaches his parole conditions or re-offends he will be returned to custody to complete the whole of the sentence imposed upon him. This will act as a deterrent to further offending behaviour.
[104]
[53] Also relevant is the applicant's co-operation. He cooperated with the police in making full admissions including describing aspects of the assault that were otherwise unknown to the complainant or police: see AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [111]; R v Horne [2005] QCA 218 at p 7.
[105]
[54] Finally, the applicant pleaded guilty to the offences after a full hand up committal hearing. It is well established that a sentencing judge should take into account a plea of guilty as a mitigating factor in sentence: see P&SA s 9(2)(g); s 13(1). In R v Taylor (1999) 106 A Crim R 578; [1999] QCA 323, McPherson JA observed[4] that s 13 confers a discretion on the sentencing judge but that it is plainly intended that the sentence will ordinarily undergo some reduction on that account. See also Cameron v The Queen (2002) 209 CLR 339 at 343; and R v Woods [2004] QCA 204.
[106]
[55] In the home invasion case earlier referred to, R v Nolan, Fraser JA referred with approval to R v Ramm [2008] QCA 13 where a sentence of four years imprisonment had been imposed upon a 25 year old offender with a criminal record which included an offence of personal violence. Ramm smashed his way into the complainant's home, attacked her with the intention of raping her, and desisted only after neighbours came to her aid upon hearing her screams. The complainant suffered a fractured knee as a result of the attack which left her with a continuing disability. In unrelated offending, he stole tools and sold them. The court held that his sentence was manifestly excessive because no parole eligibility date had been specified to reflect his plea of guilty and personal circumstances.
[107]
[56] The applicant has not shown that eight years imprisonment with a parole eligibility date after he had served two years six months in custody was manifestly excessive for such a brutal and unrestrained attack involving a home invasion. Nor has the appellant shown that the sentence was manifestly inadequate. The sentence imposed is supported by the decisions in R v Perussich [2001] QCA 557; R v Granato [2006] QCA 25; R v Mitchell [2006] QCA 240; R v Holland [2008] QCA 200; and R v Laing [2008] QCA 317.
[108]
[57] In R v Perussich, the applicant was sentenced to nine years imprisonment with a serious violent offence declaration following a conviction after trial for grievous bodily harm with intent where Perussich, who had three prior convictions for offences of violence and was 40 years old, struck the complainant three or four times to his head with the barrel of a gun and then shot him in the leg. On appeal, the Court removed the serious violent offence declaration.
[109]
[58] In R v Granato, the applicant pleaded guilty to burglary and a malicious act committed with intent (entering the complainant's dwelling with intent to do grievous bodily harm). The applicant was accompanied by two other men and struck the complainant repeatedly with a baton as a form of retribution for the complainant punching him a week earlier. The complainant had been sleeping. He was sentenced to five years imprisonment with a recommendation for community-based release after 21 months. He sought leave to appeal on the basis that the sentence imposed was manifestly excessive.
[110]
[59] The complainant sustained a fractured skull, a small pneumothorax and lung contusions and a compound fracture of his finger. There was however no significant residual disability.
[111]
[60] The applicant was 33 at the time of the offending and had no relevant prior criminal history. He was an amateur boxer and had had a falling out with the complainant.
[112]
[61] The Chief Justice, with whom Williams and Keane JJA agreed, dismissed the applicant's application for leave to appeal against sentence. Despite the applicant's lack of criminal history, favourable references and pleas of guilty the court found that the need for denunciation and deterrence warranted substantial penalties for offending of this disturbing gravity.
[113]
[62] In R v Mitchell, the applicant pleaded guilty and was sentenced to seven years imprisonment with a serious violent offence declaration for doing grievous bodily harm with intent. The circumstances of the offending were that the applicant, aged 45 at the time, met the complainant woman at a bar. They returned together to the applicant's home and consumed a large quantity of alcohol. The sentencing judge accepted the Crown's submission that the applicant had made sexual advances towards the complainant and when she rejected him, fetched an iron bar and proceeded to strike her with force over the head, arms, legs and shoulders. The applicant also kicked and punched her. The complainant sustained lacerations to her body and as a result of the offence, suffered from ongoing pain and anxiety.
[114]
[63] The applicant had a lengthy criminal history including many offences of violence and one offence of manslaughter over 20 years earlier.
[115]
[64] On appeal Philippides J, with whom Jerrard JA and White J agreed, refused the application for leave to appeal. The serious nature of the assault and the use of a potentially lethal instrument in unprovoked circumstances were said to warrant the sentence imposed. One major factor that also influenced the court was the applicant's extensive criminal history which involved offences of violence. Based on this, Philippides J considered that "the danger of repetition cannot be said to be remote".
[116]
[65] In R v Holland, the applicant was convicted of grievous bodily harm with intent and was sentenced to five years imprisonment. The applicant sought leave to appeal the sentence on the basis that it was manifestly excessive. The circumstances of the offending were that the applicant and his girlfriend were staying with the complainant. The applicant became angry when he saw the complainant ogling his girlfriend. He punched and kicked the complainant several times while wearing a heavy boot.
[117]
[66] As a result of the attack, the complainant's jaw was broken in several places requiring two rounds of surgery. The complainant was left without feeling in his lower lip and jaw area.
[118]
[67] The applicant was 43 at the time of the offence. He showed no remorse for his actions and committed the offence during the operation period of a suspended sentence imposed for an offence of assault occasioning bodily harm
[119]
[68] On appeal, the court (comprised of McMurdo P, Keane JA and Fryberg J) unanimously dismissed the applicant's application for leave to appeal against sentence. In particular Keane JA commented at [63] that:
[120]
"According to decisions of this Court, in R v Mitchell and R v Lowe, the range of sentence which might have been imposed in a case where grievous bodily harm has been deliberately inflicted by the use of a weapon by a mature offender with a record of personal violence is between four and seven years imprisonment."
[121]
The sentence was held to not be excessive, much less manifestly so.
[122]
[69] In R v Laing, the appellant was convicted of one count of burglary with a circumstance of aggravation and one count of grievous bodily harm with intent. He was sentenced to six and a half years imprisonment for each offence. The appellant appealed on the basis that the sentence imposed was manifestly excessive. The circumstances of the offending were that the appellant entered the home of the complainant in the early hours of the morning armed with a hammer. The complainant was asleep. The appellant struck the complainant on the leg and then four times in the head with the hammer. The appellant had been in a relationship with a woman with whom the complainant had taken up dancing. There was evidence that the appellant had threatened the complainant in the past.
[123]
[70] The complainant was an elderly man and suffered serious injuries as a result of the attack. His injuries were not detailed in the judgment although it was said that they had a continuing adverse effect on the quality of his life.
[124]
[71] The appellant was 62 years old at the time of the offending. He had a minor and largely irrelevant criminal history despite one previous conviction for assault twenty years earlier. He showed no remorse for his actions.
[125]
[72] Keane JA, with whom Fraser JA and Jones J agreed, dismissed the appeal finding that the offences in question involved the premeditation of an armed attack upon a defenceless elderly man in his own home. His Honour remarked the sentence was not excessive, much less manifestly so.
[126]
[73] This is a case in which a proper exercise of sentencing discretion meant that the imposition of a serious violent offence declaration was open but it was not mandatory. It has not been shown that not imposing the declaration was an error in the exercise of the sentencing discretion or made the sentence imposed manifestly inadequate. If a declaration had been made, the applicant's plea of guilty would have warranted a reduction in the otherwise appropriate head sentence of eight years to reflect the plea of guilty. Where a serious violent offence declaration is made, the sentencing court can only reduce the sentence on account of a plea of guilty by reducing the head sentence: see R v Booth [2001] 1 Qd R 393.
[127]
[74] The only technical error in sentencing was in specifying a period of time to be served before the offender was able to be released on parole rather than setting a parole eligibility date.[5] The sentence imposed leads to a parole eligibility date of 20 October 2011. That date should be inserted as the parole eligibility date.
[128]
[75] In the circumstances, the application for leave to appeal should be refused except that the recommendation for release on parole be replaced by a parole eligibility date of 20 October 2011. The appeal by the Attorney-General should be dismissed.
[129]
1. Application for leave to appeal and appeal allowed only to the extent that the recommendation for release on parole be replaced by a parole eligibility date of 20 October 2011.