R v Richmond [1997] QCA 321

Court of Appeal (Qld)|1997-07-17|Before: Pherson JA, Pincus JA, Byrne J

The applicant, who has appeared before us in person and has put submissions to the Court with the assistance of a relative of his, has either personally or with the assistance of his relative advanced the thesis that what he did was done in self-defence. Even if that be accepted, it must be said that the retaliation or defence measures adopted went well beyond the limits allowed by the law and well beyond what was necessary and reasonable in order to defend himself.

When the police arrived, the applicant told them that the complainant had called him a faggot. Later he said of the complainant when told of his condition, "I hope he dies. I don't give a shit." The complainant was taken to hospital unconscious. He was in a serious condition and was kept in the intensive care unit for a day.

As at 9 May 1997, he was still suffering pain in the right mandible joint, although there is no later report after that time to enable it to be said precisely what his condition is or has been since then.

Indirectly, the other two offences committed in February 1997 arose out of the first offence of grievous bodily harm which I have been describing. The applicant was, it seems, aiming to escape to Vancouver in order to avoid the grievous bodily harm charge I have described. He arranged to use a signed photograph of another person and, by means of exchanging it with one of his own, intended to obtain a passport in a false name.

Under the Passport Act 1938, s.10(1)(a), that offence carries a maximum sentence of two years. The activity in which he engaged also involved a forgery, which has a maximum penalty of 10 years under the Crimes Act.

There is, it should be added, evidence that shows that the applicant was fully aware of the offences he was committing and of the penalties that they were likely to attract. The Judge was plainly justified in making the sentences for these offences cumulative, and no complaint on that score has been made.

The applicant was 22 years old at the date of sentencing. Regrettably, he has prior convictions for attempted break and enter with intent, assault occasioning bodily harm, stealing and drug offences.

The assault to which I have referred led to his conviction on 17 September 1996, when he was placed on a good behaviour bond; that is to say, a recognisance of $200 to be of good behaviour for 12 months. On the same occasion, he also received a good behaviour bond of the same kind, or perhaps the same bond, for the attempted break and enter offence to which I referred earlier.

He has, it must be said, had an extremely deprived childhood, but that, to my mind, is no sufficient reason for the degree of violence, and the persistence with which it was carried out, in the course of his attack on the complainant on

21 September 1996. He has been subjected to psychiatric examination but the conclusion that resulted from it was, in the opinion of the psychiatrist, that he was suffering from no psychiatric illness.

It is, in my opinion, not possible to regard, a term of three years imprisonment as excessive for an offence of grievous bodily harm of this degree of seriousness. The more so when one takes into account that the applicant was, at the time, on a good behaviour bond into which he had entered only three or four days before, and that he had been engaged in an earlier assault which had led to that penalty being imposed.

In all the circumstances, I do not regard the case as one in which it can properly be said that the sentencing discretion miscarried and I would therefore refuse the application.

McPHERSON JA: The application for leave to appeal against sentence is refused.

Under the Passport Act 1938

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