Court of Appeal (Qld)|2006-05-26|Before: Jerrard JA, White and Philippides JJSeparate, reasons for judgment of each member of the Court, each concurring as to the, order made
Jerrard JA, White and Philippides JJSeparate, 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 – applicant convicted after pleading guilty to one count ofunlawful woundingand one count of doing grievous bodily harm – sentencedto two years imprisonment for first offence and five years for secondoffence tobe served concurrently with no recommendation for early release – whereapplicant 17 years at time of offences andhas since shown promise forrehabilitation – where first complainant’s athletics career severelyhindered and secondcomplainant suffered serious long term injuries –whether sentence was manifestly excessive due to failure to order earlyreleasePenalties and Sentences Act 1992 (Qld), s 9(1)(c)
R v Bryan
ex parte A-G(Qld) (2003) 137 A Crim R 489
[2003] QCA 18
CA No 410 of 2003, 5 February 2003, consideredR v Hoogsaad [2001] QCA 27
CA No 277 of 2000, 9 February 2001, consideredR v Lovell [1998] QCA 36
[1999] 2
Qd R 79, consideredR v Tupou
ex parte A-G(Qld) [2005] QCA 179
CA No
88 of 2005, 31 May 2005, considered
Judgment (38 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] JERRARD JA: In this matter I have read the reasons for judgment and the order proposed by White J, and respectfully agree with those reasons and the order.
[3]
[2] WHITE J: The applicant for leave to appeal against sentence pleaded guilty on 10 February 2006 to one count of unlawful wounding on 4 April 2004 and one count of doing grievous bodily harm on 7 May 2004. The undesirably long delay between committing the offences and sentence was not explained. The applicant was 17 years when he committed these offences and 19 when sentenced.
[4]
[3] He had a minor offence of being found in a dwelling without lawful excuse the day following the first offence and a breach of a bail condition as a consequence of the second defence. He was remanded in custody after the second offence and released on bail on 2 November 2004. Since then he has remained free of breaches of the law and has been in gainful employment.
[5]
[4] He was sentenced to two years imprisonment for the first offence and five years for the second to be served concurrently. No recommendation for early release was made by the learned sentencing judge.
[6]
[5] Mr East, who appeared for the applicant, submitted that whilst the head sentence was not of itself manifestly excessive, the failure to order the applicant's release after serving a period of 18 months to two years made it so. This was because, he submitted, a head sentence of five years without a recommendation had not appropriately reflected the mitigating factors of the applicant's youth, his plea of guilty and his post-offence rehabilitation. To test that submission the facts of these offences need to be considered in light of relevant authorities.
[7]
[6] On 3 April 2004 at about 11 pm after being in the City the complainant, in respect of the first offence, Bruce Richard Kupfer, together with a friend, Catherine Drummond and some of her friends took a train to Cannon Hill on their way home. They were about seven in number and, having alighted the train were waiting for a taxi on the corner of a car park attached to the McDonald's Restaurant on Wynnum Road. The complainant was in full athletics training and had trained that day at the University of Queensland with Ms Drummond. He had not consumed any alcohol. He was aged 19. He was a full-time athlete and after many accomplishments in school boy athletics (many newspaper cuttings of his sporting successes were tendered to the court below) had moved from Roma to Brisbane to prepare for the World Junior Track and Field team in Italy in mid 2004. The prosecutor below told the court that the complainant was assured, as far as anyone could be, for selection in the Australian decathlon team and a probable medallist in that event at the 2006 Commonwealth Games in Melbourne.
[8]
[7] While the group was waiting, numerous youths, including the applicant, arrived in cars and congregated in the McDonald's car park. They had come from a party in a hall at Murarrie that had been disbanded by police. Some tense words were exchanged between the groups which it is unnecessary to detail. Without warning one Joshua Vosuqa, a co-accused, punched the complainant in the side of the head. He fell backwards over a small rail into a garden bed. Vosqua continued punching the complainant and three or four others in his group (not including the applicant) joined in inflicting blows to him. Some witnesses saw them kicking the complainant generally and some witnesses saw him actually being kicked in the head.
[9]
[8] The complainant got up from the garden bed and tried to escape the attackers by running across the main road towards a building. He was chased by Vosuqa who was closely followed by another co-accused, Shane Alexander, and the applicant. On the opposite footpath Vosuqa pushed the complainant causing him to fall. The complainant curled into a defensive position. The assault resumed and another co-accused, Aaron Visona, ran up to the complainant and without pausing kicked him in the left side of the face with the full momentum of his run-up. During a pause in the assaults the complainant tried to get to his feet and asked, "What have I done to you?" but the assailants continued punching and kicking him.
[10]
[9] During the assaults the complainant shielded his head with his left arm above his head. The applicant slashed the complainant's arm with a knife exposing muscles, tendons and blood vessels and causing profuse bleeding. A witness estimated the blade to be about 12 centimetres long and sharp on both edges. The assault on the complainant ended when the offenders saw the blood and left in their cars.
[11]
[10] The applicant revealed to the co-accused, Alexander, that he had "sliced" the complainant's arm with a knife which he repeated to others over the following days. The police investigations identified the applicant. On 8 April he denied to police any knowledge of the incident and nominated two of his co-accused as alibi witnesses. They eventually told police about their involvement and the applicant was charged and granted bail. A condition of his bail was that he not associate with his co-accused.
[12]
[11] The assault had a serious effect on the complainant's athletics career and personal life. Statements from his mother, his long-time general practitioner and athletics coaches describe the losses he has sustained. Many of his serious injuries related to the kicking and punching to his head for which this applicant was not responsible. The complainant's general practitioner, Dr D F Hatcher, wrote that after the attack the complainant had emergency surgery to rebuild his cheekbone and had a pin inserted. His left arm was extensively damaged from the knife attack. The complainant returned home to Roma after surgery where he was treated by Dr Hatcher for the continuing psychological and physical symptoms caused by his injuries. It is necessary to describe all his symptoms to appreciate the effect of the totality of the attacks keeping in mind the particular injuries for which this applicant alone is responsible. Dr Hatcher wrote that his injuries included:
[13]
"... depression, fluid build-up in his cheek, locked jaw sensation, nightmares, loss of sleep, arthritic fingers, chest pains, emotional stress, his inability to train, as well as an inability to deal with many aspects of his life. The pin in Bruce's cheek is very sensitive as certain sounds, cold food and the weather can effect him to the extent of causing him headaches. He has also now developed a pronounced spasmodic facial tic. This assault has resulted in lack of mobility and strength in his arm and this has drastically effected [sic] his athletic outcomes."
[14]
[12] The complainant's treating physiotherapist, Mr Craig Gilmore at the University of Queensland Sports and Rehabilitation Clinic, reported on 25 January 2006 and noted that the laceration to his left forearm needed 19 stitches. That injury resulted in a significant loss of wrist flexion extension, abduction and adduction. His finger movement was reduced with diminished strength in the wrist and fingers. The complainant underwent numerous sessions of physiotherapy and still required treatment a year post-injuries for wrist pain when he attempted the shot-put part of the decathlon suite of sports. The complainant experienced pain and stiffness in his left wrist and although he had tried to throw the shot-put in his right hand this had met with little success and he had reverted to his left hand in spite of the pain. Mr Gilmore concluded that he would continue to experience long-term wrist pain and stiffness ultimately influencing the success of his athletics career. The complainant's coaches noted his courageous attempts to regain form but it is clear that they think it unlikely he will achieve his pre-assault standard.
[15]
[13] A condition of the applicant's bail for the unlawful wounding charge was that he not associate with his co-accused. A month later on 7 May in breach of that condition the applicant joined about 20 youths to attend a party at Wynnum. The party was also attended by a large group of other youths who were described in the court below as the "Wynnum Boys". The applicant's group was not wanted at the party but no altercation followed because, it seems, police were called and brought the party to an end.
[16]
[14] The applicant and his friends adjourned to a nearby McDonald's Restaurant as did a large number of other youths who had attended the party. Some, including the applicant, gravitated to the car park where a drunken girl and a boy armed with a shovel had resumed an altercation which had begun earlier in the evening at the party. For whatever reason the applicant and some of his group intervened. He was urged not to get involved by a friend but did so. Eventually three car loads of "Wynnum Boys" arrived armed with supermarket shopping trolley bars, iron rods, machetes, a shovel and other items to be used as weapons. Others joined their group so that it eventually numbered some 20 to 30 youths outnumbering the applicant's group of about 8 to 10. The complainant in respect of this offence was a 16-year-old boy who was a member of the Wynnum group. This group chased the applicant's group throwing bottles, poles and other items at them. Some were picked up and thrown back by those fleeing the attack. A friend of the applicant's who was a co-accused with respect to the first offence was hit in the face with a shovel. The applicant later told police that he witnessed this but was unable to help his friend. The complainant threw a shopping trolley bar at the applicant as he fled. It missed him and landed some distance away. The applicant picked it up, turned and ran toward the complainant and threw it back toward him. The bar hit the complainant on the side of the head causing him to "buckle" at the knees and fall immediately to the ground. The applicant continued to run away, got to his car and drove off.
[17]
[15] The basis of the plea of guilty of doing grievous bodily harm was that the throwing of the bar was reckless and without intention to do harm but that it was reasonably foreseeable that serious injury might result. The injuries sustained by that complainant were extremely serious. Dr R A Hazelton, Director of the Brain Injuries Rehabilitation Unit at the Princess Alexandra Hospital reported on them on 27 August 2004 and 8 September 2005. On arrival at the Princess Alexandra Hospital the complainant was diagnosed with a depressed compound skull fracture. He required numerous operative interventions. He contracted pneumonia whilst in intensive care where he spent 18 days. He suffered from post-traumatic amnesia for 45 days. He was admitted to the Brain Injuries Rehabilitation Unit on 30 July 2004. He was then confined to a wheelchair and required assistance with all activities of daily living. A few months later his functional level had improved and he could transfer and walk with supervision and needed minimal assistance with personal care. Although his communication had improved he had significant cognitive language deficits. On 8 August 2005 a piece of titanium mesh was held in place in his cranium with screws to attempt to provide some protection to the exposed brain.
[18]
[16] More stark is the complainant's and his mother's assessments of the effect of the injuries. The complainant wrote
[19]
"I have no social life apart from when I go out with my community access workers 8hrs a week. I have very limited use of my right leg and my right arm doesn't work at all. I have difficulty finding the right words which makes it hard for me to communicate with new people. I have bad seizures that make me bedridden for a week at a time. I have a problem controlling my aggression and emotions which is a part of my damage. I am now 18 years old and just want to be the old Jesse."
[20]
[17] The mother wrote of the devastating effect that her son's injuries have had upon the whole family group. She spent five months in Brisbane to be near her son as he was engaged in post-operative rehabilitation. This meant a division in the family since they lived in Central Queensland. The complainant's injuries once he came home to live have proved extremely difficult to deal with. She noted that her son will need to live with her indefinitely as she is his "nurse, communicator, friend, driver and eyes as he has loss his right vision of both eyes." When he has seizures, which could prove fatal, he needs to be taken to an intensive care unit at a hospital.
[21]
[18] Following the attack the applicant contacted a co-accused from the first offence who was involved in the second and was to be interviewed by police. The applicant urged him not to say that the applicant had thrown the bar and made certain undisclosed threats. The co-accused took part in a pretext phone call with the applicant who eventually admitted throwing the trolley bar. The applicant was interviewed by police twice. He attempted to minimise his actions but told police he threw the bar because he was in fear of his safety and hoped that by doing so he would have more time to run away. He told police that he thought the complainant had just been knocked out and only later discovered the seriousness of his injuries.
[22]
[19] Once released on bail the applicant obtained work in Brisbane with a plasterer from whom a positive reference was received. The applicant aspired to being a chef but was precluded by the conditions of his bail from going out at night.
[23]
[20] When sentencing the applicant the learned sentencing judge made specific reference to the applicant's youth, his plea of guilty, his good work history since release from prison in November 2004 and that he had been provoked into retaliation in the second attack. He also noted the cowardly nature of the knife attack on a defenceless man in the first attack, the lack of remorse indicated by going out with the same group a month later in breach of his bail condition, the reckless response to the situation when told not to go into the fight on the second occasion and the serious consequences to the victims. He noted the threat made to a co-accused not to implicate him, erroneously said by his Honour to be in respect of the first offence when it was in respect of the second, but the comment was still correctly made. The learned sentencing judge declined to make an early recommendation because of the breach of bail and the seriousness of the offending. The issue for this application is whether that failure was beyond the exercise of a sound sentencing discretion and resulted in a sentence that therefore was manifestly excessive.
[24]
[21] In R v Bryan; ex parte A-G(Qld)[2003] QCA 18, Williams JA said at [32] of the offence of grievous bodily harm that it is difficult, if not impossible "to speak meaningfully of a 'range' when considering penalty" because of the great variety of acts which may result in the commission of the offence. The same might well be observed of unlawful wounding. The circumstances and the nature of the injury as well as the permanent consequences thereof will vary greatly and have impact on the appropriate sentence. As Pincus JA commented in Amituanai[1995] QCA 80; [1995] 78 A Crim R 588 at 589
[25]
"... for reasons that are evident enough, the offender will find that his punishment may depend on the extent of the damage the victim happens to sustain. That is, the risk that a blow which might by good luck have caused little damage in fact has catastrophic results, as it had here, is one which is shared by the victim and the offender ... The applicant may well, having served a period of imprisonment, leave the whole affair largely behind him; the victim can never do so and his prospects of a happy and useful life are greatly and permanently impaired."
[26]
[22] Thomas J (as his Honour then was) and I agreed with those comments and added at 596-7
[27]
"It must also bear [sic] in mind that vindication is one of the many functions of the sentencing process, and it is an evident matter in the present case. Unless courts are seen to inflict real punishment, victims and their families may be tempted to exact their own form of revenge. That is not to say that cases may not arise in which this factor will be outweighed by the benefits of rehabilitation."
[28]
[23] Deterrence, as well as vindicating the victims of violence, particularly in the case of street violence by gangs of adolescents and young men is of great importance and is enshrined in the sentencing guidelines in the Penalties and Sentences Act 1992 (Qld), s 9(1)(c). Street violence which was once regarded as an isolated occurrence is now reported as happening with alarming frequency in our cities and suburbs. No community can contemplate without unease the kind of activity which the facts of these two incidents reveal. This Court has consistently denounced street violence. In Amituanai the offender was sentenced to three years imprisonment with a recommendation for early release after serving nine months which, although described as "not light" was not interfered with on appeal. The offender was a 26-year-old young man who was celebrating his successful final university results and kicked his victim in the head which caused him to fall and sustain severe head injuries after an altercation at a taxi rank in the suburbs late at night. This occurred after the offender had himself sustained an unprovoked severe blow from a member of the complainant's group which fractured his jaw.
[29]
[24] The offender in R v Hoogsaad[2001] QCA 27 was aged 19 when he struck the complainant, a bystander outside a hotel in Ayr at night, with an iron bar around the arms and legs and then inflicted two blows to his head which left him with some serious deficits. There had been an earlier altercation which did not involve the complainant and there was no explanation for the attack. The five year sentence for inflicting grievous bodily harm was not disturbed after a plea of guilty.
[30]
[25] In Bryan a knife was used in an unprovoked attack in Brisbane on New Year's Eve with life-threatening consequences for the victim. This Court on an Attorney-General's appeal increased the sentence of four years suspended after 12 months with an operational period of five years after a plea of guilty to one of six years. Both the Chief Justice and Williams JA commented that a serious violent offence declaration may well, if sought, have been appropriately made.
[31]
[26] R v Tupou; ex parte A-G(Qld)[2005] QCA 179 was an Attorney-General's appeal where a sentence of three years suspended after nine months with an operational period of three years was increased to the extent of ordering suspension after serving 15 months. The offender, aged 18 years, pleaded guilty to doing grievous bodily harm to a much smaller mildly disabled young man at a taxi rank by punching him in the head and causing him to fall to the ground. The complainant's jaw was broken and he had ongoing problems. The offender subsequently sought to avoid detection and was on a good behaviour bond when he offended. The Chief Justice commented at p 10
[32]
"In a number of recent decisions, the Court of Appeal has emphasised the strength of the importance of deterrence in sentencing for violent offending of this general character. The public rightly expects the Courts by their sentences to achieve so much as can be achieved to help ensure the cities of this State are safe places for those who venture out during the night."
He quoted with approval the observations of Williams JA in Bryan at para 30
"Deterrence must be the major factor influencing sentencing (in these cases). Ordinary citizens must be able to make use of areas such as the Mall, even at night, sure in the knowledge that they will not be savagely attacked. The only way Courts can preserve the rights of citizens to use public areas in going about their own affairs is by imposing severe punishment on those who perpetrate crimes such as this."
[33]
[27] The amendments to the Penalties and Sentences Act 1992 (Qld) made by the Penalties and Sentences (Serious Violent Offence) Act 1997 (Qld) provided in s 9(3) that the principle in s 9(2) that imprisonment should be regarded as a last resort did not apply to the sentencing of an offender for an offence that involves violence. The effect of those amendments on the sentencing of youthful offenders, long regarded by sentencing courts as calling for special leniency, was commented on in R v Lovell[1998] QCA 36; [1999] 2 Qd R 79. Each of the members of the Court, Davies and Pincus JJA and Byrne J commented that the amendments had the consequence that the youth of an offender, while still relevant, does not have the weight which it had, especially where violence is used or physical harm caused to another person. It is true that the comments were made in the context of considering whether a term of actual imprisonment should be served by that offender and as Byrne J added at 83
[34]
"Nonetheless youth remains a material consideration; for the rehabilitation of youthful, even violent, offenders, especially those without prior, relevant convictions, also serves to protect the community."
[35]
[28] Whilst the rehabilitation of youthful offenders is important it is also important to keep firmly in mind that the court was here sentencing the applicant for two distinct and serious acts of street violence separated only by one month. The applicant has blighted the hopes and aspirations of one young man and devastated the life of the other and brought consequential suffering on their families, particularly in the case of the second complainant. In his case, as was noted by the learned sentencing judge, he himself was part of a gang engaged in street violence.
[36]
[29] Whilst the learned sentencing judge might have acknowledged the factors in favour of the applicant by an early recommendation or suspension, not to have done so can not, in my view, be described as being beyond the exercise of a sound sentencing discretion and therefore manifestly excessive.
[37]
[30] I would refuse the application for leave to appeal against sentence.
[38]
[31] PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of White J with which I am in complete agreement. I would also refuse the application for leave.