Court of Appeal (Qld)|2000-09-28|Before: Pincus J, Jersey CJ, Thomas JA

R v Matamua; ex parte Attorney-General [2000] QCA 400 (28 September 2000)

THE CHIEF JUSTICE: I will ask Mr Justice Pincus to deliver the first judgment.

The respondent is aged 38 and has some, but not an extensive, criminal history. The complainant is a woman with whom the respondent was, until the time of the offences, in a de facto relationship. While the complainant and the respondent and a person called James Lane were drinking together on a Sunday, sometimes with others, an argument developed between the respondent and the complainant.

The respondent smashed a full stubby of beer on his forehead, breaking the glass, and then pushed the complainant backwards on the bonnet of a car. He pinned her down and held the broken bottle at her throat and threatened to slice her with it. She managed to repel this assault and the group shortly afterwards continued drinking; but another argument developed.

On this occasion, the respondent picked up an axe and, yelling abuse at the complainant, swung the axe at her. He hit her on the back of the head with the handle and knocked her to the ground. He then swung the axe again so that the head became embedded in the ground, right beside the head of the complainant. She tried to get up and grappled with the respondent but he jumped on her chest with his feet and then dropped on to his knees on her chest. This caused the complainant to be winded and she struggled to remain conscious. He then placed the head of the axe at the complainant's throat and told her to be prepared to die. At this stage, she was struggling, trying to keep the axe away from her.

The descriptions I have given so far relate to count 1, common assault and count 2, assault occasioning bodily harm while armed with an offensive instrument. The offensive instrument was, of course, the axe and the bodily harm was a lump on the complainant's head caused by the blow with the axe handle.

To return to the account of events, the respondent swung the axe at Lane, the third person I have mentioned. He had gone to assist the complainant. Then the respondent either put the axe down or had it taken off him by Lane and Lane started to help the complainant to walk to the caravan park manager's office. (I should have mentioned that the incident took place in a caravan park.)

Lane was supporting the complainant, when the respondent came again with the axe and there was a cry of alarm from a park resident. Lane and the complainant ran away from the respondent; then the manager of the park went to investigate and located the respondent, who walked towards him with the axe raised. Unsuccessfully, the manager tried to calm the respondent down and then the manager ran away and cleared residents of the park out of the way. The respondent went after the complainant and Lane and caught up with them outside the caravan park. The police came and found the respondent holding on to the complainant with one hand and the axe with the other. After several demands, the respondent dropped the axe and was taken into custody.

The complainant experienced severe pain in the rib area and had trouble breathing. However, X-rays were taken on more than one occasion and they showed no fractures. She got herself to Townsville Hospital two days after the offence. She was coughing up blood but was not admitted. She came back to the hospital two days later, still coughing up blood and with persisting pain. She had headaches, muscular pain on the left side of her neck and bruising on the left side of her head. According to her victim impact statement, the rib trouble took eight or nine weeks to heal, but she suffered no permanent physical injury. The statement says, not surprisingly, that she was frightened for her life during the incidents I have described and subsequently she had had nightmares and anxiety attacks. She says that since the incidents, she has been solitary and apprehensive about contact with people.

The respondent, who was born in New Zealand, had a long de facto relationship with a woman, which produced six children who are apparently in her custody. That relationship ended in 1995. The learned sentencing Judge, after explaining the circumstances giving rise to the charge, dealt with the victim impact statement and added the complainant had gone in fear out of Queensland at considerable expense to herself, so she could feel safe from the respondent.

His Honour mentioned the respondent's criminal history. There were some drug offences in 1983 for which he was fined, offences of driving under the influence in 1984 and 1985 and unlicensed driving in 1985, again producing fines, and last, more drug offences and an offence of behaving in a threatening manner in 1998, punished by 12 months probation.

In the course of discussion of the matter with counsel, the Judge remarked that "it was a regrettable outcome of a

most - of an unusual event of excessive celebratory drinking or binge drinking, whatever you want to call it, and ..... out of character".

The Judge told counsel that he had in mind imposing a fine of $1,000 and $1,000 compensation and a suspended term of imprisonment. Counsel for the respondent was then asked by the Judge whether he thought that the penalty was so light that the Attorney-General might appeal. And the Judge asked whether counsel wished to take that risk. After taking instructions from the client, counsel for the respondent announced that he did wish to do so. It seems to me unnecessary to make any observation upon this course of conduct by the Judge, other than to say that it seems unusual. What was being done, in effect, was to offer the party being sentenced a choice of penalty, depending upon the view the parties' lawyers might take of the risk of the penalty being upset on appeal.

In the result, the Judge imposed a term of six months' imprisonment on the first and third counts and 18 months on the second, all concurrent. The Judge wholly suspended the sentences; he set the operational period at two and a half years and he ordered the fine and compensation as I have mentioned, that is, a thousand dollars each.

The Attorney-General's appeal is based on the contention that a custodial sentence was required, despite the plea of guilty and the relatively minor previous criminal history. The respondent was plainly grossly affected by alcohol but it does not appear to me that the circumstances were such as to take the case outside the general rule that that circumstance is not a mitigating factor.

There were no serious physical injuries and the respondent's counsel has pointed out that the relationship between the complainant and the respondent was brought to an end by the offences so the respondent was no longer a risk to the complainant.

Both sides have relied on Conochie, CA No 107 of 1999,

28 May 1999. That was an appeal against a wholly suspended sentence. There were assaults consequential upon a domestic argument, the principal assault being with a baseball bat of a small type. After the assault, the offender phoned the police and ambulance to get help for his wife. The parties separated after this event and the offender obtained custody of two children and shared custody of another. He was said to be extremely remorseful. Counsel for the respondent here has suggested, I think, correctly, that the injuries sustained were little worse than those involved here. But it must be said that nothing was done in Conochie quite as threatening or, indeed, dangerous as the use of the broken beer bottle at the throat and the swinging of the axe. The relevance of Conochie is that there an Attorney's appeal failed.

A case which has some resemblance is C, CA No 34 of 2000, 3 May 2000. Without going into details, there was a "prolonged episode of violence and abuse while the offender was in an uncontrolled rage". The offender was sentenced to three years imprisonment for the assaults being, at the time, on bail in respect of a sentence of 18 months imprisonment for indecent dealing. It does not appear to me that the case is of any direct help, for the reason which has been given by counsel for the respondent, namely, that there was a significant history involving offences of violence. If the case has any relevance, though, it tends to suggest that the present sentences were too light.

We have also been addressed on Bell, CA No 116 of 1994,

20 June 1994, but that seems to me to be distinguishable, for reasons which are evident on reading the case. An authority which was briefly discussed was Haughton, CA No 219 of 1997, 6 August 1997. We were supplied with a summary of the case and we have had the opportunity of reading the reasons which show that the summary given is reasonably accurate. The summary, which I will read, is as follows. This was not an Attorney's appeal, it was an appeal against a sentence, for assault occasioning bodily harm whilst armed, of 15 months' imprisonment:

"The app was involved in a domestic dispute with his wife at a caravan park. The app had returned intoxicated and his wife decided to leave him that evening. The app did not accept his wife was leaving & tried to pull their child out of his wife's arms. The wife resisted and he punched her in the face. The wife

left with the help of Dooley & another man from the park. The app then grabbed an axe and told Dooley he was going to kill him and Dooley picked up a stool for protection. The app then threw the axe when he was 10 to 15 feet away. The axe hit Dooley in the upper left side of the chest with the heel of the blade. Some soft tissue damage."

Haughton was 25 years of age with no criminal history and there was an early guilty plea. There was reference in the summary to some deficits which afflicted Haughton. Perhaps I should read out that part of the reasons of White J. who gave the principal judgment:

"Contemporaneous medical reports in respect of that injury were tendered on sentence. He has been left with both physical and psychological deficits as a consequence of that injury, including some speech and coordination dysfunction and irritability. His capacity for work was reduced to unskilled labour with maximum supervision."

The injury referred to was one to the applicant's head.

He had received some $330,000 compensation, in respect of the injuries. Another passage, which is perhaps worth referring to, is at the end of my reasons, where I mention photographs of the injuries sustained by the victim and say:

"A careful look at the photographs would convey the impression that the complainant's injuries were relatively trifling."

Now, in that case the 15 months imprisonment was reduced to six months imprisonment followed by two years probation. Although I recognise the force of the observation made by counsel for the respondent, that an Attorney's appeal involves different considerations, Haughton certainly suggests that in the present case there should have been a custodial sentence.

Although one can understand the Judge's reluctance to impose a term of actual imprisonment in the present case, in my view his Honour must be taken to have erred in doing so. There comes a point at which the degree of violent behaviour is of such a character and involves such a danger to others as to necessitate, in my view, a deterrent sentence, a sentence which has some real deterrence. Here we have a man running amok with an axe in such circumstances that but for good chance someone could well have finished up with the blade of the axe through the skull. The violent behaviour was prolonged. It involved, not only the de facto who was herself assaulted, but other persons and, it appears, involved alarming the residents of the caravan park in general. If the Courts are to encourage or foster the creation of an ordered society in Queensland, it seems to me that conduct of this kind must be met by a prison sentence. Accepting fully the argument from counsel for the respondent, that the Courts have always been slow to interfere at the instance of the Attorney-General, the present case is one which seems to me plainly to call for such action on our part.

I would set aside the sentences imposed below and impose in respect of count 2, which is the principal count of assault occasioning bodily harm whilst armed, a sentence of

18 months' imprisonment, with a recommendation for parole after six months. I would leave the sentences on the other two counts as they stand - that is, of six months' imprisonment - but remove the order for suspension.

I would add a recommendation that the respondent receive counselling in respect of alcohol problems during his imprisonment and during the period of parole. I would not interfere with the compensation order, that is the order for payment of $1000 but would set aside the fine of $1000 which was imposed below. I would allow the appeal accordingly.

THE CHIEF JUSTICE: I entirely agree. The prolonged nature of the brutality, the nature of the weapons and the psychological effect on the complainant in particular combine plainly to warrant actual imprisonment.

I feel constrained expressly to note that the learned Judge was obliged to approach the sentencing process by the exercise of a judicial discretion consistently with the determinations of the Court of Appeal. The course ultimately determined upon should not have depended on what amounted to an election by counsel for the defence. The way the sentencing process proceeded was in that respect in this particular case inappropriate.

THOMAS JA: I agree that this appeal should be allowed for the reasons which have been mentioned by Mr Justice Pincus and the Chief Justice.

There will be a warrant issued for the arrest of the respondent to lie in the Registry for a period of seven days pending execution.

R v Matamua; ex parte Attorney-General [2000] QCA 400

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R v Matamua; ex parte Attorney-General [2000] QCA 400 (28 September 2000)

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