_R v Jaramillo_

Court of Appeal (Qld)|2007-11-23|Before: Williams and Muir JJA and McMurdo J, Separate reasons, for each member of the Court, each concurring as to the orders made

MUIR JA: The applicant pleaded guilty to one count of doing grievous bodily harm and was sentenced in the District Court on 13 August 2007 to imprisonment for five years. 13 August 2009 was fixed as the parole eligibility date.

The applicant was born on 10 December 1983 and was thus 21 years of age on 16 January 2005, when the offence was committed. His prior criminal history was minor, he had been dealt with summarily on 10 October 2005 for possessing a dangerous drug and utensils and for contravening a direction. No conviction was recorded.

The offence arose out of a fracas outside the front of the Surfers Paradise International Resort. The complainant was in one of two groups involved in the incident, the applicant was a member of the other group.

At about 5 a.m., the male complainant, aged 22, in company with three other men, approached the entry of the hotel where they were staying. As they did so, they encountered a group of 10 to 15 people, including the applicant and his brother.

After an exchange of words, one of the complainant's companions walked over to the other group and issued an invitation to fight.

A member of the applicant's group held a beer bottle to that man's neck, threatening to cut him with it, and then struck him on the head with the bottle. A brawl ensued. In the course of the brawl, the applicant armed himself with a bottle which he had smashed and used to threaten persons who had attacked him whilst he was on the ground.

In an interview with a psychiatrist on 29 May 2007, the applicant told the doctor that when he threatened his assailants with the broken bottle prior to the attack on the complainant, his assailants told him to calm down and left. He said that as the complainant's group left, "some said words to the effect of, 'let's go upstairs and get knives.'"

At that stage, the applicant experienced increasing rage. He asserted that the complainant had taunted him, saying that he was "full of shit" and that the applicant "would not do anything."

According to the applicant, he then attacked the complainant. The complainant was chased by the applicant, his brother and two others into the hotel foyer. He fell over a chair and was kicked and punched while on the ground, suffering a broken nose. When the complainant attempted to stand up, the applicant stabbed him in the chest with the broken bottle. The applicant's brother joined in the attack and punched the complainant. After his brother joined in the attack, according to the account the applicant gave the psychiatrist he remained enraged and kept punching the complainant "...but had the bottle in his hand and as a result he, 'by accident', cut [the complainant] a second time with the bottle."

The complainant suffered a 3 millimetre deep cut above the right eyebrow, a 4 centimetre long and 3 millimetre deep Y-shaped laceration from the top of the left side of the nose, a 2 centimetre long and 8 millimetre deep cut to his lower lip on the left side, a 6 centimetre long deep V-shaped wound to the lower lip, a vertical 12 centimetre laceration to the left breast, a 3 millimetre deep L-shaped cut on the inner border of the right nipple and a 6 centimetre long, 5 millimetre deep laceration to the right axillae. The facial wounds required plastic surgery. In all, the injuries required 70 stitches.

The applicant's version was not accepted by the learned Crown Prosecutor. The factual conflict was mentioned by the sentencing Judge, who referred to the possibility that evidence might be required to resolve it. No evidence, however, was called to that end.

The sentencing Judge referred to the account the applicant had given the psychiatrist, but at no stage indicated the version of the facts upon which he was acting.

It was argued on behalf of the applicant that he was pre-disposed to be enraged and over-reacted to the previous threat of violence posed to his brother and himself by the group of which the complainant was a member. It is submitted that in these circumstances, the head sentence ought to have been within the range of three to four years imprisonment. Furthermore it was submitted that in the circumstances where the offender is relatively young, co-operates with the authorities, enters an early plea and has demonstrated remorse, ordinary sentencing practice would be to set the parole eligibility date at one-third of the sentence.

In support of his contentions, the applicant's counsel relied on R v. Bryan Ex Parte Attorney-General [2003] QCA 18,

R v. Berryman [2005] QCA 471 and R v. Rehavi [1998] QCA 157. The offender in Bryan was sentenced on an Attorney's appeal to six years imprisonment on doing grievous bodily harm whilst in the company of a group of males who pestered the complainant and his female companion in the central city area of Brisbane. A fight between the complainant and the offender took place and when the complainant appeared to be getting the better of things, the offender, who had a knife on his person, stabbed the complainant causing three serious wounds to the chest which were described by doctors as life threatening.

In Berryman, the Court dismissed an application for leave to appeal against a sentence of three years imprisonment, suspended after 12 months with an operational period of three years for doing grievous bodily harm. The applicant approached the complainant who was drinking with a group in a hotel bar and unprovoked, smashed a glass into the complainant's face. The glass broke on impact, severely lacerating the complainant's face. One cut was very close to an eye, another was 10 centimetres long, with only a small amount of tissue left open between the open cavity of the laceration and the oral cavity.

The incident took place in Stanthorpe, and it was deemed necessary to take the complainant to Brisbane for plastic surgery. There was a timely plea of guilty and the applicant was found to be remorseful. He had no prior convictions and had a good work history.

Rehavi concerned an appeal against conviction and sentence. The appellant's conviction for grievous bodily harm with intent to do grievous bodily harm was set aside and a verdict of guilty of doing grievous bodily harm was substituted. The sentence imposed at first instance was set aside and a sentence of three years was imposed.

The appellant in that case launched an unprovoked attack on the complainant in a night club bar. In the course of it, the appellant smashed the top of a glass he was holding on the bar and struck the complainant in the face with the broken glass.

The complainant sustained a laceration to the left side of the face, extending through the skin and muscle into the jaw bone. There were abrasions over the left cheek and bruising near the left eye. The injuries resulted in the complainant suffering from numbness in the lower part of his ear and jaw, ringing in his ears and reduced control over the left corner of his mouth, resulting in dribbling when he ate or drank. The numbness and loss of control were likely to be permanent.

Berryman was a far less serious case than the present one. It involved one blow to the face with an unbroken glass. The applicant did not act in company with others, and the blow was not repeated. The facts in Rehavi were similar.

There is some mitigation in the circumstances that the applicant's attack was a continuum of a melee in which the complainant participated, in which the applicant had been under threat of injury and had observed his 16 year old brother being punched.

The applicant's story that he punched the complainant, forgetting that he had a broken bottle in his hand, is improbable. In order to punch, the hand is shaped into a fist. That is impossible if the hand is clasping a broken bottle and accepting the applicant's version of events, he,

aided by others, deliberately attacked the defenceless complainant with a broken bottle. There is no suggestion that there was any material pause in the attack and when he launched it, the applicant intended to wound with the broken bottle. His actions were brutal and cowardly and were likely to result in serious, if not life threatening, injuries to the complainant.

The applicant may well have armed himself with a broken bottle for the purposes of self defence, but the threat to his person had disappeared by the time of his attack on the complainant.

I accept the learned Crown Prosecutor's submission that the subject offence is distinctly more serious than those in Berryman and Rehavi, but less serious than that in Bryan. The above analysis of comparable sentences suggests that whilst a sentence of less than five years was open, a sentence of five years could not be described as manifestly excessive.

I am of the view, however, that the sentence was manifestly excessive over all as a result of the Judge's failure to have sufficient regard to the considerations relied on by the applicant's counsel and the other circumstances I have mentioned.

For the above reasons, I would allow the application for leave to appeal, allow the appeal, but only to the extent of

ordering that the parole eligibility date be fixed at a date 18 months from 13 August 2007.

Allow the appeal to the extent of substituting 13 February 2009 as the parole eligibility date in lieu of 13 August 2009.

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