Court of Appeal (Qld)|2006-06-23|Before: Jerrard JA, White and Philippides JJ, Separate reasons for judgment of each member of the Court, each concurring, as to the order made
Jerrard JA, White and Philippides JJ, Separate reasons for judgment of each member of the Court, each concurring, as to the order made
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
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED– PARTICULAR OFFENCES –OFFENCES AGAINST THE PERSON –GENERALLY – where applicant pleaded guilty to one count of unlawfullydoing grievous bodilyharm with intent – where applicant was sentenced toseven years imprisonment with a serious violent offence declaration –where the applicant was intoxicated and attacked the complainant with an ironbar and detained her in a room – where the applicantpursued thecomplainant after she had escaped – where the complainant had offered noprovocation – where the applicanthad a lengthy criminal historycomprising many offences of violence including manslaughter – whethersentencing judge placedundue weight on the applicant’s criminal history– whether the sentence was manifestly excessive in all the circumstances
Penalties and Sentences Act 1992 (Qld), s 161B(3)R v
Beer [2000] QCA 193
CA No 404 of 1999, 26 May 2000, consideredR v
Bojovic [2000] 2 Qd R 183
[1999] QCA 206
CA No 4 of 1999, 8 June
1999, appliedR v Cowie [2005] 2 Qd R 533
[2005] QCA 223
CA No 42 of
2005, 24 June 2005, appliedR v Eveleigh [2003] 1 Qd R 398
[2002] QCA 219
CA No 356 of 2001, 21 June 2002, appliedR v Hudson
ex parte A-G
(Qld) [2002] QCA 239
CA No 124 of 2002, 3 July 2002, cited R v Lyon
[2006] QCA 146
CA No 14 of 2006, 5 May 2006, consideredR v McGrady
& Anor [2001] QCA 302
CA No 44 and CA No 45 of 2001, 27 July 2001,
cited R v Nielsen [2006] QCA 2
CA No 301 of 2005, 31 January 2006,
consideredR v Perussich [2001] QCA 557
CA No 169 of 2001, 7 December
2001, considered
Judgment (26 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] JERRARD JA: I have read the reasons for judgment of Philippides J and agree with Her Honour that the application for leave to appeal against sentence should be dismissed.
[3]
[2] WHITE J: I have read the reasons for judgment of Philippides J and agree with her Honour for the reasons that she gives that the application for leave to appeal against sentence should be refused.
[4]
[3] PHILIPPIDES J: The applicant seeks leave to appeal against a sentence of seven years imprisonment with a serious violent offence declaration imposed on 7 February 2006 on his plea to a count of unlawfully doing grievous bodily harm with intent. The applicant also pleaded to an associated count of deprivation of liberty and was sentenced to 12 months imprisonment to be served concurrently. A declaration was made in respect of 377 days pre-sentence custody, the applicant having at the date of sentence been in custody since 26 January 2005.
[5]
[4] The circumstances of the offences are that at about lunch-time on 25 January 2005, the complainant, a 45 year old woman, met a man by the name of Michael Love in King George Square, Brisbane. They had a few drinks and some time later were joined by the applicant, who was acquainted with Mr Love, but not previously known to the complainant. They stayed in the city for the rest of the day, socialising and consuming alcohol through to the early hours of the following day, Australia Day, 26 January, when they all took a taxi to the applicant's unit at Kangaroo Point. They remained at the unit and during the course of that day, two four litre casks of wine were purchased and consumed by all three at the unit. It seems that, in the period up to 7 pm of the evening of 26 January, when the offences in question occurred, a total of up to eight or nine litres had been consumed (with Mr Love's and the applicant's consumption being at a ratio of three drinks to the complainant's one).
[6]
[5] The sentence was a contested one in respect of the events immediately leading up to the commission of the offences, the applicant challenging the complainant's version as to the motivation for the attack on her and the deprivation of her liberty.
[7]
[6] The applicant gave evidence that, in the course of the evening of 26 January 2005, he had fallen asleep and had awoken to find the complainant "mucking around" with his stereo and television, in a manner that led him to believe she was attempting to steal it (he alleged she was attempting to unplug a cable connected to a power point in the wall behind the equipment). He said he decided to "teach her a lesson" and went to his room, returning with an iron bar. He accepted he used it against the complainant, but just to "touch her up" and "tap" her with it. His evidence was that the complainant ran into the bedroom to escape from him and shortly thereafter jumped from the unit to the ground below.
[8]
[7] The sentencing judge preferred the complainant's evidence over the applicant's as to what had pre-empted the attack on her and as to the nature of that attack and the deprivation of her liberty. The complainant's evidence was that, shortly before the attack, Mr Love had fallen asleep and that the applicant had then made sexual overtures to her, which she rejected. That caused the applicant to become angry and verbally abusive. He said he was going to kill her. He then went to the bedroom of the unit and returned with the iron bar with which he proceeded to hit her, striking her on her head, legs, shoulders and arms. The complainant said that the applicant swung the iron bar over his head and brought it down as hard as he could but that he did not succeed in hitting her each time. She said that she was forced into the bedroom of the unit by the applicant hitting, kicking and punching her. At some stage the applicant opened the bedroom door to get something and the complainant took the opportunity to escape, running to the balcony and jumping the one floor to the ground below. The complainant ran across the road and towards another woman, Ms Latimer, who had witnessed the complainant's fall from the unit. The complainant hid behind a car. Ms Latimer's evidence was that the applicant approached the two women. He did not have the iron bar with him at that stage. The complainant was in a distressed state and said to Ms Latimer "You've got to help me. He is trying to hurt me". The applicant tried to pursue the complainant who evaded him by staying to one side of a brick pylon. The applicant pushed Ms Latimer aside and tried to apprehend the complainant, who fled down the road, with the applicant yelling "Get back here".
[9]
[8] The police were called and spoke to the applicant whom they described as being intoxicated. They located in the bedroom of the unit the iron bar, which had blood stains on it, as did the shirt the applicant was wearing. There were also blood stains in a number of rooms in the unit, including the bedroom and laundry.
[10]
[9] The complainant was taken to the Princess Alexandra Hospital for treatment. She sustained a laceration to the left elbow and compound fracture of that elbow which required surgical treatment. She also sustained lacerations to her scalp, which were sutured, lacerations to her shins, bruising around her left eye and right shoulder and a dislocation of the fifth metatarsal phalangeal joint, which required manipulation. The complainant still suffers from some lack of balance as a result of her toe injury, in addition to considerable ongoing pain associated with the injuries to her left elbow and right shoulder. She also suffers from the continuing psychological effects of the attack as detailed in the Victim Impact Statement, including anxiety attacks and nightmares.
[11]
[10] The sentence proceeded on the basis of a drunken intent and on the basis that the fracture of the left elbow constituted the grievous bodily harm for the purposes of the offence.
[12]
[11] His Honour accepted the complainant's evidence as to how the applicant had used the iron bar against her (that he had raised the bar above his head before bringing it down) and as to the number of times he had done so, (the complainant's evidence being that he had raised the bar towards her about 12 to 15 times). His Honour observed that the reason why the assault failed to have the physical consequences for the complainant that might otherwise have been expected may have been explained by the extent of the applicant's intoxication at the time.
[13]
[12] At the time of sentencing, the applicant was 51, being born on 6 August 1954. He has a relevant and lengthy criminal history, comprising many offences of violence, the first and most important being a conviction after trial in 1980 for manslaughter for which he was sentenced to eight years imprisonment. The circumstances of that offence were that the deceased, the applicant and a co-accused had all been drinking at a hotel. The applicant and his co-accused followed the deceased into a toilet to steal the deceased's wallet. While robbing the deceased, the applicant attacked the deceased with considerable violence and fatal consequences.
[14]
[13] The applicant's criminal history also includes numerous lesser offences of violence, with convictions for assaulting police in 1980 (for which he was fined), assault occasioning bodily harm in 1985 (for which he was sentenced to three months imprisonment), unlawful assault and aggravated assault on a female both committed in 1986 (for which he was sentenced to terms of two and four months imprisonment respectively), assault occasioning bodily harm on a female committed in 1987 (for which he was fined), assaulting police committed in 1988 (for which he was fined), assault occasioning bodily harm also committed in 1988 (for which he received two months imprisonment), unlawful assault committed in 1990 (for which he was sentenced to three months imprisonment), aggravated assault on a female committed in 1992 (for which he was fined) and common assault committed in 1998 (for which he was fined). Apart from the latter offence, the applicant's criminal history from 1994 includes convictions in 1995 for breaking, entering and stealing, and convictions in 1995 and 1997 for wilful and unlawful damage. The applicant's criminal history for the period from 1993 to 2000 also includes numerous convictions for breaches of the Bail Act1980 (Qld) and street offences.
[15]
[14] Before the learned sentencing judge the prosecution submitted, primarily relying on R v Perussich[2001] QCA 557, that the applicable sentencing range was one of six to eight years imprisonment and ultimately urged the imposition of a sentence of seven years imprisonment combined with a serious violent offence declaration made pursuant to the discretion under s 161B(3) of Part 9A of the Penalties and Sentences Act 1992 (Qld) ("the Act"). On the applicant's behalf it was contended that an appropriate sentence was one in the vicinity of five years imprisonment with a declaration in respect of the time served, and that it was also within the sentencing discretion to suspend the sentence after three years. Reliance was placed on R v Beer[2000] QCA 193, R v McGrady & Anor[2001] QCA 302 and R v Hudson; ex parte A-G (Qld)[2002] QCA 239.
[16]
[15] In imposing the sentence of seven years imprisonment with a declaration that the offence was a serious violent offence, the learned sentencing judge observed that the offence had occurred in circumstances where the complainant had offered no provocation, and where potentially deadly violence was inflicted, using an iron bar of significant size for an extended period. His Honour noted the continuing consequences of the assault for the complainant. His Honour had regard to the applicant's extensive criminal history, referring to the large number of offences of violence recorded, commencing with the manslaughter in 1980. His Honour observed that although the offences in more recent times were of a less serious nature than the present offence, they had continued until at least 2000. His Honour noted that the consumption of alcohol was a regular feature of the applicant's previous offences, and had figured largely in the present case. His Honour took into account the plea entered by the applicant, which he noted was not an early one, by reducing the sentence he would otherwise have imposed.
[17]
[16] His Honour found that the applicant was a serious risk to the community if he persisted in his behaviour, particularly when regard was had to the fact that there was nothing that could validly have caused the applicant to act as he had in the present case. Taking into account those matters, the serious conduct engaged in by the applicant, and the need to protect the community, his Honour considered that a declaration under s 161B(3) of the Act was warranted.
[18]
[17] The applicant, who appeared for himself, argued that the sentence imposed was manifestly excessive in the circumstances of the case and that a serious violent offence declaration ought not to have been made. The applicant maintained that the sentencing judge placed undue weight on his criminal history and pointed to the most serious of his prior convictions, the manslaughter, having occurred nearly 27 years ago.
[19]
[18] The applicant referred to a number of authorities as comparatives, many of which concerned sentences imposed for the offence of grievous bodily harm simpliciter (which carries a maximum penalty of 14 years imprisonment), rather than grievous bodily harm with intent (which carries a maximum sentence of life imprisonment). As such they offer no assistance. As to the decision of R v Nielsen[2006] QCA 2, to which the applicant also referred, that case involved three counts of doing a malicious act with intent to do grievous bodily harm for which concurrent sentences of six years imprisonment were imposed on late pleas of guilty. The 23 year old offender in that case drove his car towards each of the three complainants after an altercation. While the conduct involved was described as extraordinarily reprehensible, the injuries inflicted were of a minor nature and the offender had no prior criminal history. The case is also therefore of little assistance as a comparative.
[20]
[19] In addition, the applicant referred to R v Lyon[2006] QCA 146, where a sentence of nine years imprisonment with a declaration imposed after trial on a count of unlawful wounding with intent to do grievous bodily harm was challenged as manifestly excessive (a concurrent term of five years for burglary with a circumstance of aggravation was also imposed). The offender was in an acrimonious relationship with his ex-wife, the complainant. Under the influence of alcohol he took a sharpened machete to the complainant's house and forced his way in. He pinned the complainant against a wall and swung the weapon at her several times, intending to hit her. A number of the blows hit the wall, but there was at least one glancing blow to the complainant, who sustained cuts to her face, neck, upper left arm and left finger and suffered ongoing psychological consequences. The offender had no prior convictions for like offences other than two breaches of a restraining order for which he was convicted the day before the offences were committed. There was also an offence of breaking and entering committed some 25 years previously. On appeal, a majority held that, were it not for offers to plead to the counts of which he was convicted, the appropriate sentence would have been in the vicinity of eight years imprisonment, but reduced the sentence to one of seven years with a declaration to take into account a number of offers to plead to the offences, which had not been fully brought to the sentencing judge's attention. The majority also indicated that a seven year sentence with a recommendation after three years would have been appropriate if pleas had actually been entered.
[21]
[20] The respondent referred to the decisions of Perussich and Beer by way of comparatives_._ In Perussich, a sentence of nine years imprisonment with a serious violent offence declaration was varied on appeal to the extent of removing the declaration. The defendant in that case had been acquitted after trial of attempted murder, but convicted of the alternate count of grievous bodily harm with intent. The offence occurred after the complainant and the defendant had been drinking together. The complainant was struck on the head a number of times with a gun by the defendant, who also shot the complainant in the leg. While accepting that the offence was a violent and serious one with far-reaching and permanent consequences for the complainant, it was held that the declaration, in requiring an addition of almost three years mandatory imprisonment, invested the sentence with a penalty which was not called for having regard to the defendant's criminal history and the nature of his conduct generally.
[22]
[21] In Beer, a sentence of eight years imprisonment with a serious violent offence declaration imposed after trial was set aside on appeal and reduced to one of seven years imprisonment without a declaration. Applying the approach in R v Bojovic[2000] 2 Qd R 183; [1999] QCA 206, the majority found that the declaration was not warranted, the incident being seen as "an unjustified attack by an elderly man following his disturbing an intruder within his son's premises, who was assisting his son's estranged girlfriend to remove her property". Although the majority of the Court of Appeal reduced the sentence imposed, they held that the appropriate sentencing range for the offence there under consideration was one of six to eight years, taking into account the deliberate use of a knife and the fact that the defendant had some prior convictions for violence, albeit some 25 years previously (consisting of some street offences and one conviction for assaulting police and occasioning bodily harm).
[23]
[22] It is to be acknowledged that the applicant has the benefit of a plea, which the offenders in Perussich and Beer did not have. On the other hand, the applicant has a considerably more serious criminal history than those offenders. In addition the very different circumstances present in Beer (the offender there having disturbed an intruder) make it an unsatisfactory case to be considered as a comparative. Lyon is a closer comparative in some respects, but the more serious criminal history of the applicant is an important distinguishing feature which goes against the applicant, although on the other hand Lyon had the aggravating feature of a home invasion.
[24]
[23] In Bojovic the Court of Appeal held that properly approached, the making of a declaration under Part 9A of the Act is the result of a single integrated sentencing process; the discretion under s 161B(3) may be exercised where it results in a sentencing outcome that accords with the sentencing guidelines contained in s 9 of the Act, and is thus simply an additional sentencing tool that is available as part of the overall sentencing process: see also R v Eveleigh[2003] 1 Qd R 398; [2002] QCA 219. In considering whether to exercise the discretion contained in s 161B(3), a sentencing judge is required to determine a sentence which is "just in all the circumstances" (R v Cowie[2005] QCA 223 at [19]). However, where the making of a declaration is discretionary, it is not necessary in order that the discretion be exercised that the circumstances of the case should take it beyond the "norm" for cases of its type; relevant factors in concluding that a declaration is appropriate will include the seriousness of and violence in the course of the offence (Eveleigh at p 431) and the protection of the community (Beer at [22]).
[25]
[24] Considerations of deterrence, denunciation and protection of the community feature prominently in the circumstances of the present case. Given the serious nature of the assault, involving a prolonged attack with a potentially lethal instrument in unprovoked circumstances, and the applicant's very extensive and relevant criminal history, a significant penalty was called for. In those circumstances, the sentence of seven years imprisonment with a declaration, although a heavy one requiring a mandatory period of five and a half years to be served, was not one that was outside the sentencing discretion, even bearing in mind the applicant's plea, the extent of the injuries actually sustained and that a drunken intent was involved. The general conduct of the applicant was of a serious nature, and given the applicant's significant criminal history, the danger of repetition cannot be said to be remote, particularly when regard is had to the regular feature of intoxication and offences of violence in that history.
[26]
[25] In my view, the sentence was imposed in accordance with appropriate sentencing principles and was not manifestly excessive. I would refuse the application for leave to appeal against the sentence.