R v Mah

SUPREME COURT OF QUEENSLAND

CITATION: R v Mah [2004] QCA 198

PARTIES: R v MAH, Eng Hou (applicant)

FILE NO/S: CA No 78 of 2004 / DC No 405 of 2003

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Southport

DELIVERED EX TEMPORE ON: 8 June 2004

DELIVERED AT: Brisbane

HEARING DATE: 8 June 2004

JUDGES: de Jersey CJ, Williams and Jerrard JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – where the applicant pleaded guilty to torture, grievous bodily harm and deprivation of liberty – where applicant was declared a serious violent offender – whether the sentence of six years and the serious violent offender declaration were manifestly excessive

R v G; ex parte A-G (Qld) [1999] QCA 84; (1999) 106 A Crim R 14, considered / R v BH [2000] QCA 110; (2000) 110 A Crim R 499, considered / R v Burns [2000] QCA 201; CA No 399 of 1999, 30 May 2000, cited / R v Dack [2002] QCA 44; CA No 340 of 2001, 20 February 2002, cited / R v Edwards [2001] QCA 366; CA No 173 of 2001, 5 September 2001, cited / R v M [2000] QCA 6; CA No 262 of 1999, 2 February 2000, cited / R v Roelandts [2002] QCA 254; (2002) 131 A Crim R 590, cited

COUNSEL: The applicant appeared on his own behalf / D L Meredith for the respondent

SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The applicant pleaded guilty to three offences; torture, grievous bodily harm and deprivation of liberty, arising from his treatment of a 23 year old autistic man at the Gold Coast. The applicant was then 25 years old. The conduct occurred over the period 18th September 2002 to 9th October 2002. For the offence of torture he was imprisoned for six years with a declaration that he had been convicted of a serious violent offence. It was declared that 520 days' presentence custody was time already served under the sentence. No further penalty was imposed for the other two counts. The applicant seeks leave to appeal on the ground that the six year sentence coupled with the serious violent offence declaration is manifestly excessive.

The offences involve the applicant's exploitation of the disabled complainant who was by nature gullible. When the complainant left his friends and moved into his own rented premises in September 2002, the applicant moved in with him. The applicant then effectively commandeered the complainant's unit, requiring the complainant for example, to sleep on the lounge room floor and to use toilet facilities at a nearby shopping centre. Over the period of a fortnight to a month the applicant hit the complainant with a steel pipe, daily at first, with increasing frequency later on. The applicant hit the complainant about the head, face, chest, shoulders and upper back. He also kicked the complainant. When the complainant was eventually recovered by his family on the 9th of October 2002, he was admitted to hospital and he then bore a haematoma to the right side of his head, a wound to the back of the head, six injuries to his face, bruising and wounds on his arms, bruising on both thighs, and some 20 injuries to his back being wounds and ulcerations.

The wounds over his shoulder blades were particularly serious with a large area of full skin thickness loss with possible necrotic muscle tissue underneath. There was systemic infection probably septicaemia. In the absence of medical treatment the complainant would have died as a result of his injuries. Even after medical treatment he is now left with permanent scarring over his back and shoulder blades. It is expected he will lose muscle tissue function and a range of movement in both shoulders.

The learned sentencing Judge noted the particularly relevant features, the vulnerability of the complainant and the persistent brutality dealt out to him by the applicant; the extensive life-threatening nature of the injuries from which the complainant will continue to suffer throughout his life; and on the other side of the ledger, the applicant's pleas of guilty; the circumstance that he had no prior criminal conviction and the psychiatric evidence suggesting the applicant suffered from emotional disturbance probably related to abusive treatment of him during his childhood.

The applicant's motivation in committing these offences was not clearly disclosed in the psychiatric material, inferentially it was sadism. There is no particularly comparable reported case, R v G; ex parte A-G (Qld) (1999) 106 A Crim R 14 is of some assistance. G was a 25 year-old man with no prior convictions who was imprisoned for six years for torturing an 18-20 month old infant over a period of three months. The Court of Appeal noted the maltreatment in that case did not fall into the most serious category because, for example, it did not include the inflicting of serious permanent injury. The Attorney-General's appeal was dismissed. Because of his disability and consequent vulnerability, this complainant was in a generally analogous position to the victim in G. But this complainant was subjected to more serious beatings and is left with serious residual disability.

It is the gravity of the beatings and the permanent consequent disabilities taken with the applicant's grotesque exploitation of a disabled man which distinguish this case from G and warranted a more severe response. Those features also rendered this case sufficiently distinct to warrant the making of a serious violent offence declaration. In R v BH (2000) 110 A Crim R 499 a range of seven to ten years' imprisonment with a serious violent offence declaration was suggested for the torture of a 17 year-old daughter, maltreatment of more severity than occurred here. I mention the case particularly however for the observation at page 505 that, "It is likely that a person who is convicted of the crime of torture particularly where it involves intentional infliction of pain or suffering on more than one occasion, will be declared a serious violent offender." I endorse that view which confirms the plainly reasonable exercise of the discretion which occurred here. Reference was also made to R v M [2000] QCA 6 where the sentence was 10 years' imprisonment but that was a much more severe case than this one.

The applicant has expressed concern that he may have been treated harshly because he is an illegal immigrant and Asian. There is, unsurprisingly, no basis at all for that concern. He also seeks clemency in the hope he may be able to return earlier to Singapore to care for his aged frail mother. In a case like this that can only be a subsidiary consideration and it did not warrant amelioration of the penalty imposed by the learned Judge.

The applicant referred us to a number of cases where lesser penalties were imposed. R v Burns [2000] QCA 201, R v Roelandts [2002] QCA 254, Egan and Litfin, a sentence imposed on 15th February 1999, R v Dack [2002] QCA 44, R v Real [2001] QCA 422 and R v Edwards [2001] QCA 366. What distinguishes all of those cases from this one, is that they all concern maltreatment on the one occasion or in the course of the same day. This course of torture occurred over a period of a fortnight to a month with daily beatings and more frequently as time went on. G offers a much more helpful basis for comparison because the torture there occurred over a substantial period.

The sentence imposed for the torture was reasonably open. I would refuse the application.

WILLIAMS JA: The facts establishing the offence of torture demonstrate this was a gratuitously violent crime deserving of a serious violent offence declaration. I agree with all that has been said by the Chief Justice and with the order proposed.

JERRARD JA: I agree.

THE CHIEF JUSTICE: The application is refused.