R v Ishibashi [1998] QCA 342

Court of Appeal (Qld)|1998-05-29|Before: Pincus JA, Pherson JA, Ambrose J

The applicant's submission to this Court is that his sentence is manifestly excessive and that comparable cases suggest a head sentence of four years would have been appropriate, without taking into account mitigating circumstances which called for a suspended sentence or, so it is said, at least a recommendation for early parole.

The applicant stresses his previous good character and record and his good work history. He claims that the offence was completely out of character. The sentencing judge referred to the applicant's plea of guilty, but said he found it difficult to accept as the product of remorse in the light of the applicant's conduct immediately after these events.

The applicant submits that his behaviour was the outcome of an irrational moment of misconduct and of his condition of generalised anxiety disorder. He blames his behaviour, on this occasion, on the matrimonial disharmony that existed between them, and claims that until then he had integrated successfully into Australian society.

There was, it was pointed out before us, no evidence of any planning, premeditation or preparation for this offence, and no weapon or instrument was used in the course of the assault. The basic submission on behalf of the applicant comes down, in the end, in my view, to an argument that a sentence of six years or more is appropriate generally for cases where there has been a degree of premeditation or planning for the offence or the use of a weapon or instrument in order to inflict injuries which, in most of the cases concerned, appear to have had more serious consequences than this.

The applicant has almost no criminal history. He has one conviction consisting of a charge to which he pleaded guilty of wilful destruction of property in the night-time, for which he was placed on a good behaviour bond and ordered to make restitution of $140.00.

A number of comparative sentences were referred to in the written and oral submissions before us. In Hakkila (CA 14 of 1994, 30 March 1994) the accused was sentenced to six years for grinding a broken sliver of a china mug into the victim's eye, causing the loss of this eye as well as serious facial lacerations.

In Brown (CA 155 of 1996, 26 July 1996) a sentence of six years was imposed for an assault carried out with a large metal spanner which caused serious injuries to the head, left arm and knee and a compound fracture to the right leg. A seven year sentence was imposed on the accused in Thompson

(CA 575 of 1996, 16 April 1997) for punching and stabbing the complainant with a screwdriver causing puncture wounds to the head and below the left breast.

In other cases to which we were referred sentences ranging from eight to 10 years have been imposed for acts of violence causing brain damage; or, in one instance, using acid to cause disfigurement; or, in another, pouring petrol on the complainant which it was sought to ignite. In Lingwoodock

(CA 396 of 1987, 22 March 1988) a sentence of five years was imposed for cutting the complainant's throat with a knife.

These sentences appear to me to be of some utility in assessing the appropriateness of the sentence in the present case. It is of course true that the offence of which the applicant was convicted in this case was not simply one of doing grievous bodily harm but of doing grievous bodily harm with intent to disfigure. Nevertheless, it is right to say that the consequences of the action of the offender are relevant in determining the appropriate sentence, even in cases in which the more serious offence is charged. Exacerbating features of the applicant's conduct here are that the injuries were inflicted on his own wife, and that they have resulted in permanent disfigurement, more serious perhaps for a woman, as well as some disabilities of a permanent kind.

Nevertheless, the extent of the injury and the disability is less severe than, for example, the loss of sight of an eye or the brain damage inflicted in two of those other cases that attracted sentences of six years. Taken in conjunction with the plea of guilty, it seems to me that the sentencing level adopted in those other cases suggests that a sentence of imprisonment for six years in the present case was excessive to the point where this Court ought to intervene.

Having regard to the serious character of the offence and its permanent consequences for the complainant I can, for my part, see no compelling reason for recommending parole, or for a suspension of the sentence in the present case. I would however allow the appeal and vary the sentence imposed below by reducing it to one of imprisonment for four years.

PINCUS JA: Were the matter free from authority the sentence imposed might perhaps be able to stand. Counsel have gone to some trouble to assemble comparable sentences, particularly those relating to assaults arising out of domestic or marital disharmony. The substantial injury in the present case is loss of a little finger, not by any means a trivial matter, but a very much lesser injury than is involved in most of the cases to which we have been referred. In my opinion, despite Mr Chowdhury's strong submission to the contrary, it is simply not the case that the six year sentence reconciles reasonably with the range of sentences manifested in the decisions of this Court and the Court of Criminal Appeal. I agree with the order proposed by Mr Justice McPherson and with His Honour's reasons.

AMBROSE J: I agree with the order proposed and with the observations made by both my brothers.

PINCUS JA: The order will be application granted, appeal allowed, head sentence reduced to four years, sentence below otherwise confirmed.

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