Court of Appeal (Qld)|2002-07-03|Before: Davies JA, Williams JA, Jerrard JA

R v Hudson; exparte A-G (Qld) [2002] QCA 239 (3 July 2002)

JERRARD JA: On 14 October 2001 Gary Paul Hudson returned to the residence he shared at Kowanyama with his then de facto partner, Katherine Florrie George. She had been drinking alcohol at her sister's home and was very angry with him for having gone away that day without telling her. They argued. He told her to leave and when she did not he picked up a steel chair and chased her down the stairs and across a roadway. She tripped and fell, holding her arm up to protect herself, and he struck her on that arm once with the chair. She suffered a fractured left humerus and bruising to her left forearm, and she now describes that arm as deformed.

On 21 March 2002 he pleaded guilty in the District Court at Kowanyama to one count of having unlawfully done grievous bodily harm to Ms George, and one count of having knowingly contravened a domestic violence order made on 25 January 2001. He was sentenced to six months' imprisonment. The Attorney-General appeals to this Court, arguing that the sentence imposed for unlawfully doing grievous bodily harm was manifestly inadequate.

Mr Hudson was 40 years old when he committed that offence. He had been convicted before, in six separate Court appearances, of 13 offences involving assault, with the first Court appearance being on 25 November 1981. The other dates were September 1982, January 1983, December 1987, May 1988 and July 1999. He had been imprisoned for offences of assault in November '81, September '82, May 1988 and July 1999. The longest sentences were three months, imposed on each of the May 1988 and July 1999 hearings. Seven of those prior assault offences were ones of assault occasioning bodily harm, and one was an offence of aggravated assault on a female.

The Attorney-General complains that this case is a serious example of an offence of unlawfully causing grievous bodily harm, since it involved the use of a weapon which appears to have caused an injury of a permanent nature. Further, Mr Hudson has a significant history of committing offences in which violence is used by him on others, and short periods of imprisonment imposed on other occasions have not effectively deterred him from again resorting to violence.

As against that it was said without contradiction on his behalf to the learned sentencing Judge that Mr Hudson was a well liked and well respected member of the Kowanyama community. - He was described as a hard working man. He had worked for many years, the Court was told, since age 17 outside that community. For example, at Comalco as a trades assistant labourer, as a ringer at Billies Lagoon Station, at Sudley Station, and as a truck driver. He has lived apparently permanently in Kowanyama since 1996, and has what is described as the position of supervisor for a homelands program into which he puts a great deal of effort.

The learned Judge was told that Mr Hudson was very sorry for what he had done to Ms George. A victim impact statement describes them as having separated immediately after the incident and they remain separated. Further, he desisted from his attack immediately a witness, his mother, called out to him telling him to stop.

The sentencing remarks of the learned Judge reveal that Katherine George also had been sentenced by that same Judge that same day for an offence of having stabbed Mr Hudson, which offence had occurred a couple of months after Mr Hudson caused grievous bodily harm to her. The Judge commented that the relationship between Mr Hudson and Ms George was quite clearly a bad one for both of them. The Judge's sentencing remarks included the observation that Mr Hudson had been violent towards other people in the past, had been to gaol for that and on this occasion had used a weapon. The Judge took into account that Mr Hudson had entered an early plea of guilty and that he accepted he was sorry for what he had done.

The Attorney-General complains that the sentence of six months imprisonment appears manifestly inadequate when compared with sentences imposed in other matters. Ones to which the Attorney principally referred us were as follows.

In a matter of D'Arcy, COA214/2000, that appellant had been convicted by a jury of doing grievous bodily harm. The complainant had upset him by flirting with the woman living next door to the house the appellant and complainant shared with a third man. All three men had been drinking during the day and late that evening the appellant forcibly entered the complainant's room, and there struck him two blows with a pinch bar. One broke the complainant's raised right forearm and the other lacerated his skull. Mr D'Arcy had a substantial record for offences of violence, commencing in 1981 when he was then convicted of manslaughter and sentenced to five years' imprisonment. He had committed 14 further offences of violence since 1986. His application for leave to appeal the sentence of three and a half years' imprisonment was dismissed. That matter has the features more serious than this one of two blows being struck, there was no plea of guilty, and Mr D'Arcy had a far more serious history of violence.

The Attorney referred also to the matter of Grimley [2000] QCA 64, in which Mr Grimley was convicted after a trial of having unlawfully done grievous bodily harm. He was 46 years old, and had one prior conviction for assault occasioning bodily harm. He had punched the complainant on the complainant's jaw, breaking it, apparently without any provocation. His sentence was reduced on appeal to one of 20 months' imprisonment. Mr Grimley did not admit guilt, did not use a weapon and had far fewer prior convictions for violence.

The Attorney also referred to a matter of Hegarty. Mr Hegarty was convicted after an early plea of guilty of the offence of doing grievous bodily harm. He had committed a prolonged assault upon his ex de facto with a piece of wood, beating her around the head, body, legs and arms. He had entered her house in Cherbourg in the evening to commit that offence, attacked her in her home and then pursued her onto the roadway when she attempted to escape. That incident had followed their having drunk together earlier that afternoon in a Murgon hotel, and having had an argument during which the complainant had struck Mr Hegarty with a beer glass, cutting his head. That cut needed 10 stitches. Mr Hegarty had been convicted on six other occasions of committing offences of assault, including on that same woman. On appeal by the Attorney-General his sentence of three and a half years' imprisonment, completely suspended for five years, was changed to a sentence of three and half years' imprisonment with a recommendation that he be considered eligible for release on parole after serving six months of that sentence. That matter has a number of features similar to this one, except that the offence committed by Mr Hegarty involved a far more prolonged use of deliberate force.

I think by comparison with those three matters the sentence of six months' imprisonment imposed in this one does appear manifestly inadequate. That is because of the matters identified by the sentencing Judge, namely the use of a weapon by an offender with prior convictions for violence. I consider those earlier sentences demonstrate that what is often called the head sentence in this matter should be less than that imposed in the matters of D'Arcy or Hegarty, and more than that imposed in the matter of Grimley.

The respondent's counsel submits that recent decisions of this Court unequivocally demonstrate that short terms of imprisonment, or wholly and partially suspended terms of imprisonment, and intensive correction orders are within the permissible range of sentencing options when grievous bodily harm is at the lower end of the scale of seriousness. The Court was referred principally to the following matters.

In the matter of Craske, the 18 year old offender chased the 28 year old complainant and kicked the complainant once in the head whilst the complainant was lying on the ground. That caused a grossly displaced fracture of the right and left jaw. Craske had no prior criminal history and the complainant had provoked a confrontation between himself and a group which included Craske. No weapon was used and there was a plea of guilty on an ex officio indictment. Craske's application for leave to appeal against a sentence of 18 months suspended after four months was dismissed. That offender used no weapon and had no prior history. He was sentenced to a longer head term of imprisonment. That matter appears less serious that this one.

The Court was referred to a matter of Cuff, in which the Attorney-General appealed from the imposition of a sentence of 12 months' imprisonment to be served as an intensive correction order, accompanied by an order that the respondent pay the complainant compensation in the sum of $10,000. The offence committed was one of doing grievous bodily harm, caused by the offender punching the complainant once in the face with a closed fist. The offender had two prior convictions for assault occasioning bodily harm. It is clear from reading the judgment of this Court that the fact that the $10,000 compensation had been paid before the appeal was heard was a very significant circumstance which kept that offender, who had not used a weapon, out of prison.

We were referred to a matter of Dodd in which an appeal against sentence of 18 months' imprisonment, with a recommendation for consideration for release on parole after six months, was dismissed. That offender was 26 years old with no prior relevant criminal history who had hit the complainant once in the face, fracturing the complainant's jaw in three places. The complainant had offered no provocation. That matter appears less serious than the present one, there being once again no weapon used and no relevant history; and yet once again a longer head sentence was imposed.

We were also referred to a matter of Camm, in which a 47 year old appellant had thrown the 56 year old complainant out of a doorway and onto a concrete driveway one metre below. The complainant suffered a fractured left hip. It appears that there was some provocative conduct from the complainant. The appellant succeeded in having set aside his sentence of three years' imprisonment, which was originally ordered to be suspended after nine months; and instead he was sentenced to two years' imprisonment suspended immediately. The effect of that order was that he serve four and a half months in custody. He had no prior criminal history and did not use a weapon. That makes that matter less serious than Mr Hudson's conduct in this case.

I note that the Aboriginal and Torres Strait Islander Women's Task Force on Violence Report states at page (x) in the executive summary of that report that its members were advised that the strongest message that they could give to the Government and the public of Queensland is that violence in all its forms whatever its locale and in any circumstances is unacceptable.

I consider that to leave the present sentence stand does not send that message. Accordingly, in the circumstances I consider that the sentence which is appropriate, having regard to the previous decisions of this Court cited by both parties, is a sentence of two years' imprisonment to be suspended after Mr Hudson has served nine months. I think that any shorter period of a head sentence fails to reflect sufficiently the fact of Mr Hudson's quite significant number of prior convictions for assault, and the fact that he used a weapon. I also think that any longer period of imprisonment to be served before the sentence is suspended fails to reflect sufficiently his plea of guilty, his apparent remorse, the fact that he desisted after one blow, and the fact that he did not initiate the argument which led to his using violence. In the result I would order that the appeal by the Attorney be allowed, that the sentence of six months' imprisonment be set aside, and in lieu thereof the respondent be sentenced to imprisonment for two years to be suspended after he has served nine months of that sentence, such suspension to be for a period of two years during which Mr Hudson must not commit another offence punishable by imprisonment.

DAVIES JA: The orders are as indicated by Justice Jerrard.

R v Hudson; exparte A-G

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Judgment (22 paragraphs)

R v Hudson; exparte A-G (Qld) [2002] QCA 239 (3 July 2002)

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