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[2003] QCA 137
General information, not legal advice.
Court of Appeal (Qld)
2003-03-28
de, Jersey CJ, Williams JA and Atkinson J, Separate reasons for judgment of each member of the Court, Williams JA and
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v O'Grady; ex parte A-G (Qld) [2003] QCA 137
PARTIES: R / v / O'GRADY, Nathan / (respondent) / EX PARTE ATTORNEY-GENERAL OF QUEENSLAND / (appellant)
FILE NO/S: CA No 35 of 2003 / DC No 473 of 2002
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by A-G (Qld)
ORIGINATING COURT: District Court at Maroochydore
DELIVERED ON: 28 March 2003
DELIVERED AT: Brisbane
HEARING DATE: 19 March 2003
JUDGES: de Jersey CJ, Williams JA and Atkinson J / Separate reasons for judgment of each member of the Court, Williams JA and Atkinson J concurring as to the orders made, de Jersey CJ dissenting in part
ORDERS: The appeal is allowed, the sentence of 12 months imprisonment to be served by way of intensive correction order is set aside, and in lieu thereof, it is ordered that the respondent be imprisoned for two years, and it is further ordered that such term of imprisonment be wholly suspended with an operational period of three years.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where unprovoked, gratuitous street violence – where specific blow occasioning grievous bodily harm the culmination of a prolonged attack – where respondent is young, holds a responsible job, is in a stable family situation and has satisfactorily completed two months of an intensive correction order – whether custodial sentence appropriate / Dinsdale v R (2000) 202 CLR 321, approved / Malvaso v R (1989) 168 CLR 227, approved / R v Craske [2002] QCA 49; CA No 11 of 2002, 1 March 2002, considered / R v Cuff; ex parte A-G (Qld) [2001] QCA 351; CA No 151 of 2001, 22 August 2001, distinguished / R v D [1996] 1 Qd R 363, considered / R v de Simoni (1981) 147 CLR 383, considered / R v Dodd [1998] QCA 323; CA No 241 of 1998, 17 September 1998, considered / R v Elliott [2001] QCA 507; CA No 168 of 2001, 14 November 2001, considered / R v Merriman [1973] AC 584, considered / R v T [1993] 1 Qd R 454, considered
COUNSEL: M J Copley for the appellant / A J Moynihan for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Legal Aid Queensland for the respondent
de JERSEY CJ: On 15 January this year the respondent, then 28 years old and with no prior criminal history, was sentenced to 12 months imprisonment to be served by way of intensive correction order for one count of assault occasioning bodily harm and one of doing grievous bodily harm. The Attorney-General appeals.
The charges, to which the respondent pleaded guilty, arose from events which occurred at about midnight on 9 March 2002. The male complainants were, with their wives, returning to a motor vehicle from a restaurant. Members of an approaching group made insulting comments. Shortly thereafter, the respondent, who had been elsewhere, crash tackled and punched the complainant, Mr Wilcox, who was 43 years old. The learned sentencing judge found that the attack was entirely unprovoked. Mr Wilcox suffered a peri-orbital haematoma, associated with a depressed fracture of the anterior wall of the left frontal sinus. He was hospitalised overnight. He experienced headaches for the following ten days.
The other complainant, the 46 year old Mr Langley, intervened to assist the wives who had been set upon by the group which had earlier levelled insults. The respondent punched the complainant, forcing him across the street and over a fence. The blows were delivered to the complainant’s head, mouth and nose, causing a split lip, a bleeding nose and some bruising. The police then arrived. The complainant, in a state of high agitation, urged the police officer to put her gun to the respondent: the complainant himself placed two fingers to the right side of the respondent’s neck. The respondent reacted by delivering the blows which caused the grievous bodily harm, directed to the complainant’s right eye. He was knocked unconscious, suffering a laceration to the right, lower eyelid/cheek junction and a blow out fracture of the right medial orbital walls and floor. The orbital floor fracture was repaired by operation ten days later. The surgeon reported the injury was consistent with a blow of moderate force. If left untreated, permanent double vision would have resulted. As at the date of sentencing a year later, Mr Langley was still complaining of distortion of vision.
When interviewed by the police, the respondent claimed to have been acting in self-defence, a contention the learned sentencing judge did not accept. The respondent also said that he was very intoxicated at the time. Intoxication of course does not warrant mitigation in penalty.
Criticism was made on behalf of the appellant of the following passage in the judge’s sentencing remarks:
“Although you are certainly guilty of the offence of committing grievous bodily harm on Michael Langley the circumstances in which that occurred render it explicable in ordinary parlance. It is not a case of premeditated behaviour. It is not a case of kicks. It is not a case of offering violence to someone who was on the ground or in a defenceless position. It is more a case of someone who was understandably agitated and upset himself behaving in a manner which many people would regard as provocative in the non-technical sense and consequently what you did, in my opinion, is not as serious as in many cases of the infliction of grievous bodily harm. … The really serious matter of inflicting grievous bodily harm is, in my view, rendered less serious by reason of the sequence of events leading up to the commission of that offence.”
In my respectful view, that assessment ignored the circumstance that the respondent was the author of the overall situation, that the complainant’s strident and emotional demands of the police might be seen as an understandable reaction to what had been done to him, and there was rationally no prospect those demands would be effected. The respondent’s commission of the offence of doing grievous bodily harm must be seen in context of his having previously felled the complainant MrWilcox for absolutely no reason, and not content with that, his having administered a sustained beating to a second, older man in the form of Mr Langley. I can see no basis whatever for mitigating the seriousness of the offence constituted by the second assault upon Mr Langley.
The judge remarked that a sentence of imprisonment was inevitable, but that he was prepared to order that it be served by way of an intensive correction order having regard to the absence of any prior criminal history, the respondent’s being a person of generally good character with a good work history, and his having pleaded guilty. In my view, undue allowance was made for those features. Gratuitous street violence without provocation must be sternly deterred.
Counsel for the appellant referred us to Elliott [2001] QCA 507, Craske [2002] QCA 49 and Dodd CA No 241 of 1998. Elliott pleaded guilty to doing grievous bodily harm and to assault occasioning bodily harm. For the former offence he was sentenced to two-and-a-half years imprisonment, with eligibility for parole recommended after one third. Elliott was a younger man, 23 years old, but had a substantial prior history for violent offending. Each offence involved a single blow. The grievous bodily harm involved a fracture of teeth, somewhat less serious than the harm done to Mr Langley. Dodd, 26 years old with no prior history, was sentenced to 18 months with parole recommended after six. He struck his complainant once, fracturing his jaw and knocking out teeth. Craske was only 18 years old at the time, and sentenced to 18 months to be suspended after four, for a kick with a boot to the head of a complainant while on the ground. That was however a case where the complainant had provoked an altercation which developed into the commission of the relevant offence.
Those sentences, all imposed following pleas of guilty, demonstrate that the sentence of 12 months to be served by way of intensive correction order was in this case manifestly inadequate, having regard to the overall extent of the violence involved in this case, with two complainants, and culminating in the serious offence committed upon Mr Langley. I accept the appellant’s contention that an appropriate sentence was two years imprisonment, which I would suspend after six months, that level of suspension taking sufficient account of the plea of guilty, the respondent’s lack of prior criminal history, and his having for two months been subject to and complying with the intensive correction order. I would regard the head term of two years as also appropriately moderate in that context. But for the completion of two months of the intensive correction order, I would as sentencing judge have suspended the two year term after eight months.
“The prisoner then begins to throw punches at Mr Langley who, in effect, covers himself up, that is his face area to block the punches. Mr Langley, and in his own words, “proceeded then to back off or back away across the road in order to lure the prisoner away from the group”, and this continued – the punches continued, he says, as he was luring him across. It appears his wife tried to get between the two of them, that is the prisoner and Mr Langley, to no avail. They ultimately ended up in a front yard of a dwelling. Now, the prisoner continues in this front yard of this area to continue to punch Mr Langley in the head, mouth and nose area with a closed fist and Mr Langley contributes a split lip and a bleeding nose to this part of the prisoner’s conduct”.
Later in making his submissions on sentence the prosecutor said that the assault after the arrival of the police had to be “viewed in the light of the previous assault upon Mr Langley”.
Defence counsel before the sentencing judge conceded that the respondent “threw punches at Langley. There was some pushing and shoving and wrestling and further blows. … In that initial attack upon Langley as my learned friend indicates, the injuries were a split lip and a bloody nose”.
In his sentencing remarks, the learned District Court judge, after dealing with the assault on Wilcox, referred to the respondent assaulting Langley: “There was then this flurry of blows by you to him hitting him about the head essentially and he was backing away at the time going across the street. So there were a number of blows struck to him at that time which again did not cause a great deal of injury to him. … I think that the attack upon Langley at least was probably entirely unprovoked. … You should be regarded as the aggressor in the assaults upon both Wilcox and Langley”.
The principal submission of Mr Moynihan who appeared for the respondent in this court was that the assault after the arrival of the police, which occasioned the grievous bodily harm, was a single impulsive punch consequent upon Langley’s provocative act of placing two fingers to the right side of the respondent’s neck (suggesting he should be shot). Mr Moynihan argued that as the respondent was not charged with or convicted of any offence relating to the “preliminary” assault that could not be taken into account when sentencing the respondent for the offence of doing grievous bodily harm. In support of that submission he relied on passages in The Queen v de Simoni (1981) 147 CLR 383 at 389-92 and R v D [1996] 1 Qd R 363 at 403.
de Simoni was primarily concerned with the question whether or not at sentence the court could place significance on conduct which constituted a “circumstance of aggravation” as defined in the Criminal Code and not charged. The Western Australian Code provided in s 582: “If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment”. That is replicated in s 564 of the Queensland Code. Gibbs CJ (with whom Mason J and Murphy J agreed) said at 389:
“However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence for which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence”.
“In the present case … section 582 … has, in my opinion, the effect that a judge in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance should be placed upon it. He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation, but which do not fall within the definition of that expression in the Code, because they do not render the offender liable to a greater punishment”.
“1.Subject to the qualifications which follow:
(a)a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;
(b)common sense and fairness determines what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes. (cf Merriman at 593, R v T at 445); and
(c)an act, omission, matter or circumstance within (b) which may itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.
2.An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstance would then establish:
(a)a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;
(b)a more serious offence than the offence of which the person to be sentence has been convicted; or
(c)a “circumstance of aggravation” (Code s 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increased the maximum penalty to which that person is exposed.
3.An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are material unless used to increase penalty or deny leniency, e.g. “context” or the “relationship” between the victim and the offender, or to establish, for example, the offender’s “past conduct”, “character”, “reputation”, or that the offence was not an “isolated incident”, et cetera.”
The references in that passage are to the judgment of Lord Morris of Borth-y-Gest in R v Merriman (1973) AC 584 at 593, a passage cited with approval by the members of this court in R v T [1993] 1 Qd R 454. In broad terms that passage supports the proposition that in determining whether or not to bring a single charge where several blows have been struck, the question is “best answered by applying common sense and by deciding what is fair in the circumstances”.
In my view the assault which resulted in the grievous bodily harm to Langley cannot be properly evaluated for purposes of sentencing the respondent without regard to the earlier events involving those two persons. In having regard to those events the court is doing no more than considering all the relevant conduct of the respondent, a matter recognised by Gibbs CJ in de Simoni as a relevant circumstance. Adopting that course is, in my view, in accordance with paragraphs 1(a), (b) and (c) of the passage quoted from R v D. The fact that the earlier blows may technically constitute separate offences is not a sufficient reason for excluding them from consideration. Adopting the common sense approach referred to in Merriman the appropriate charge to lay was that of doing grievous bodily harm resulting from the one blow, and the preliminary blows provide the background circumstances in which the criminality of that blow is to be evaluated.
When the matter is considered in that light this was not a case of a single impulsive punch delivered by an intoxicated person occasioning grievous bodily harm.
The facts establish that this was a case of unprovoked, gratuitous street violence. The criminality of the specific blow occasioning grievous bodily harm is made more serious because of the fact that it was the culmination of a reasonably prolonged attack on two passers-by who were unknown to the respondent. The blow occasioning grievous bodily harm cannot be dissociated from the earlier conduct; there was not such a separation in either time or space as would make the earlier conduct a separate offence which ought to have been made the subject of a separate charge before it could be regarded as relevant for sentence purposes in the present context.
The conduct in question called for a custodial sentence; deterrence is the most significant consideration in dealing with crime of this type. In my view a sentence of 12 months imprisonment to be served by way of intensive correction order does not reflect the criminality involved in the conduct of the respondent, and is a wholly inadequate penalty to impose; it is manifestly inadequate. The real problem is to determine what now is the appropriate penalty for this court to impose.
The offences occurred on 9 March 2002 and the respondent was sentenced on 15 January 2003. Since 9 March 2002 he has continued to hold a responsible job, and the material before this court indicates that he has satisfactorily completed two months of the intensive correction order. That involved him spending every Sunday performing community service work, and in addition reporting twice weekly to Community Correctional Officers. He has also commenced various programs as part of that order.
R
O'Grady; ex parte A-G
(2000) 202 CLR 321
(1989) 168 CLR 227
(1981) 147 CLR 383
Counsel for the respondent relied on Cuff CA No 151 of 2001, where a sentence of the level imposed here was in generally similar circumstances upheld. The point of distinction, however, is that this instance of doing grievous bodily harm occurred in context of the offence of assault occasioning bodily harm committed such a short time before. Further, the judge found the respondent inflicted multiple blows upon Mr Langley, involving ‘a high level of violence’. It was submitted for the respondent that only the blows immediately inflicting the grievous bodily harm fell for consideration. But the blows inflicted so recently before upon Mr Langley, in fact immediately leading up to the incident at the fence, must in ‘common sense and fairness’ (R v D [1996] 1 Qd R 363, 403) be regarded as relevant attendant circumstances – if for no other reason than to rebut the characterization of impulsivity which the respondent’s counsel offered in relation to the ultimate assault involved in the charge of grievous bodily harm.
I have had the advantage of reading the reasons for judgment of Williams JA. Notwithstanding the considerations to which his Honour refers in para [30] of those reasons, I am firmly of the view that punishment and deterrence required that this perpetrator of gratuitous, sustained violence on two innocent passers-by, culminating in the inflicting of grievous bodily harm, required that the offender serve actual imprisonment, albeit he had no prior record and pleaded guilty.
The sentence actually imposed was so substantially out of line with an appropriate range that this court should not in my view decline to intervene because allowing the appeal will mean imprisoning a respondent who has, since sentencing, been at large in the community, and for the last couple of months subject to the intensive correction order (with which I note he has complied). If the term of actual imprisonment I contemplate were very short, the position may be different, but I would not characterise six months in that way.
I would order:
That the appeal be allowed;
That the sentences imposed in the District Court on 15 January 2003 be set aside;
That in respect of each of counts one and four, the respondent be imprisoned for two years (concurrently), to be suspended after six months for an operational period of two years;
That a warrant issue for the apprehension of the respondent.
WILLIAMS JA: I will not repeat unnecessarily facts set out in the reasons for judgment of the Chief Justice, which I have had the advantage of reading. This court is primarily concerned with the appropriate penalty to be imposed for the assault on Langley.
Before the District Court the Crown prosecutor related facts establishing the initial assault on Langley before the police arrived. Relevantly he said:
He is a relatively young man, aged 28, who has no previous convictions. Numerous references attesting to his good character were placed before the sentencing judge who observed: “the character references which I have read … indicate that people in the community have a very high opinion of you.” He is in a stable family situation with a partner and dependent child. Though the child is not his, the references speak of his being an excellent father to that child.
The learned sentencing judge in his remarks said that ordinarily a sentence of the order of two years imprisonment would be appropriate for the offences in question. It was because of the personal factors to which I have referred that he ultimately decided to impose the intensive correction order.
In my view as a head sentence two years imprisonment is the appropriate punishment for the offences in question. The early plea of guilty, the clear remorse, the previous good character, and the fact he is a relatively young man would ordinarily have resulted in such a head sentence being suspended after serving a short period in actual custody. But bearing in mind the fact that the respondent has already satisfactorily completed two months of the intensive correction order, and the principles relating to appeals by an Attorney-General which are of particular significance in a case such as this (Malvaso v The Queen (1989) 168 CLR 227 at 234 and Dinsdale v The Queen (2000) 202 CLR 321) I have come to the conclusion that it would be inappropriate to require the respondent at this point of time to spend some very short period in actual custody. Indeed spending a very short time in actual custody could be counter-productive. Whilst not the major consideration, the court cannot ignore the issue of rehabilitation.
Against all that background I have come to the conclusion that the appeal should be allowed, the sentence of 12 months imprisonment to be served by way of intensive correction order be set aside, and that in lieu thereof it be ordered that the respondent be imprisoned for two years, and it is further ordered that such term of imprisonment be wholly suspended with an operational period of three years.
ATKINSON J: I have had the advantage of reading the reasons for judgment of Williams JA. There is nothing I can usefully add. I agree with the orders proposed by his Honour for the reasons which he has given.