R v Hoogsaad [2001] QCA 27

R v. Swayn (CA 59 of 1998), in which a sentence of five years imposed for doing grievous bodily harm in somewhat similar circumstances to which was added a further six months for possession of drugs. The applicant in that case was involved in a drunken fight with another young man at a nightclub. After being ejected from the premises, he followed his victim and felled him with a blow to the back of the head. He then kicked and stamped on his head, causing bruising around the eye, a depressed zygoma, serious haematoma to the left front of the skull, and fractures of various facial and head bones. As a result, the victim suffered post traumatic amnesia, high level balance and memory problems and difficulties with his attention and concentration faculties, as well as double vision and hearing loss. He was diagnosed as a chronic invalid who was unemployable. His condition was therefore considerably more serious than that of the complainant in the present case, which is not to underrate the seriousness of the complainant's disabilities.

To that extent, it would have been open to the learned sentencing Judge here to differentiate in favour of the present applicant, either in relation to the head sentence or by making a parole recommendation of the kind sought, especially having regard to the fact that the applicant's plea of guilty and what is said to be his express remorse in the present case operated in his favour.

Like the offender in Swayn who was 22 years old, the applicant here is a young man, who was aged 19 at the time of the offence and 20 when sentenced. Each had a record of prior offences, the applicant's being the more persistent of the two, but neither of them was of real relevance to the sentencing process. In the present case his Honour said that the applicant's record was not really indicative of any offences of a violent nature.

The two cases are therefore in some ways comparable, and it has to be borne in mind that in Swayn's case there was no plea of guilty, but a fiercely contested trial, at the end of which the Judge said he regarded the accused in that case as a liar.

Here there are, however, some respects in which the applicant's criminal conduct seems to me to be fairly capable of being regarded as more serious than that of Swayn. One is that he used a potentially lethal weapon, described as an iron bar, and at one stage, I think, as a pointed iron bar, that was about one metre long and an inch thick in diameter. Precisely where he obtained this bar is not apparent, and has not been explained by anyone who may have been aware of it. Another is that the complainant here had not been involved in any kind of altercation or physical struggle with the applicant before he was set upon in the way I have described. He was simply a bystander. Even now the complainant does not know what brought about the attack on him any more than, in fact, we do. The complainant has no memory of what happened, and the applicant himself has not explained, according to the material we have, precisely what led him to commit the assault.

In terms of criminality there is therefore little to choose between the two offenders, and in some ways the applicant's behaviour was the more reprehensible of the two. What else can be said when a man is suddenly attacked for no discernible reason whatever with a dangerous weapon like an iron bar.

On any view of the matter, the features favourable to the applicant, such as his plea of guilty in the present case, are in my view not of such significance as necessarily to call for recognition of a substantial margin in the penalty to be imposed in his case compared with that of Swayn. To have imposed on the applicant here a sentence at the same effective level as for Swayn is not, in my opinion, of itself enough to demonstrate that the sentencing discretion in this instance must have miscarried.

The process of sentencing cannot be reduced to the level simply of matching colours. For all that, however, I remain a little concerned that no specific explanation was given of why there was no discount for the applicant's early plea of guilty. Nevertheless, if the Court were to interfere here, there would, I think, be no real room for the exercise of any judicial discretion in the sentencing process at all.

In the end, the differences between the two cases which we have been considering are not so obvious as to enable it to be said that a parole recommendation was necessarily called for here, or that a lower head sentence should have been imposed.

In the result, the sentence imposed on the applicant was in my opinion not manifestly excessive. I would consequently dismiss the application for leave to appeal in this matter.

MACKENZIE J: Yes, I agree. I would only add that the fact that no non-parole period was specified in a case where the learned sentencing Judge said that he took into account the plea of guilty, implies that the starting point for sentencing was probably of the order of five and a half to six years imprisonment.

Where a Judge makes allowance for a plea of guilty and other mitigating circumstances by reducing the head sentence, it is in my view a good and desirable practice to make what has been allowed explicit so that the sentencing process is transparent.

The facts of this matter are that the complainant was uninvolved in the incident which caused the violence. The only apparent explanation for the attack on him seems to be that he was attacked because the applicant believed he was associated with the person who broke the glass.

The complainant has suffered significant disabilities and loss of amenities of life which have been detailed by Mr Justice McPherson. The case also involved the use of a weapon which was capable of causing serious injury and did, in fact, cause serious injury. That in my view is a serious factual aggravation of the offence.

In Swayn, for example, it was not a case where a weapon was used but it appears to have involved only kicking and stomping, reprehensible as that might be.

I would agree with the order proposed by Mr Justice McPherson for the reasons advanced by him.

McPHERSON JA: Yes, the order is that the application for leave to appeal will be dismissed.