Court of Appeal (Qld)|2005-11-04|Before: McMurdo P, Jerrard JA and Douglas JSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, Jerrard JA and Douglas JSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, 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 - applicants convicted after pleas of guilty to
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTEDPERSONS -APPLICATIONS TO REDUCE SENTENCE - applicants convicted after pleas of guilty toan assortment of offences arising out ofan incident at a hotel - offencescomprised of an initial altercation when refused entry to the hotel and a secondaltercation whenthey returned to the premises - applicants intoxicated - fourcomplainants involved - all complainants employees of hotel - eventscaptured onsecurity video - applicants contend the sentences imposed are manifestlyexcessive and that the primary judge failedto give sufficient weight to themitigating factorsCRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTEDPERSONS -APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - applicant Sargeant convicted of
three counts of assault occasioning bodily
harm in company - sentenced on each
count to two years imprisonment suspended after four months with an operational
period of two
years - applicant contends sentencing judge wrongly found facts as
to his involvement in the offences - 24 years old at time of offence
- timely
plea of guilty - no criminal history - good work history - remorse shown -
references tendered suggesting offending out
of character - whether sentence
manifestly excessive
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 - applicant Price convicted of
three counts of assault occasioning bodily
harm in company and one count of
assault occasioning bodily harm - sentenced on each count to two years
imprisonment suspended after
eight months with an operational period of two
years - applicant contends sentencing judge took into account acts constituting
uncharged
offences - 24 years old at time of offence - timely plea of guilty -
minor criminal history - good work history - remorse shown -
references tendered
suggesting offending out of character - whether sentence manifestly
excessive
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 GRANTED - applicant Freier convicted of
one count of grievous bodily harm and one
count of assault occasioning bodily
harm in company - sentenced on each count to four years imprisonment suspended
after 16 months
with an operational period of two years - applicant contends
sentencing judge erred in imposing the same penalty on the offences
of grievous
bodily harm and assault occasioning bodily harm in company - 24 years old at
time of offence - timely plea of guilty
- minor criminal history - good work
history - at time of commission of offences abusing cannabis - since offences
attended counselling
to assist with cannabis problem and better manage temper -
138 A Crim R 273, distinguishedR v Swayn [1998] QCA 171
CA No 59
of 1998, 8 May 1998, consideredR v Tupou
ex parte A-G (Qld) [2005] QCA 179
CA No 88 of 2005, 31 May 2005, consideredR v Walsh, Sayer
& Thompson
ex parte A-G (Qld) [1998] QCA 217
CA Nos 158, 159 and
160 of 1998, 28 July 1998, considered R v Yanner & Yanner
ex parte
A-G (Qld) [1999] QCA 515
(1999) 109 A Crim R 109, considered
Judgment (84 paragraphs)
[1]
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 - applicants convicted after pleas of guilty to an assortment of offences arising out of an incident at a hotel - offences comprised of an initial altercation when refused entry to the hotel and a second altercation when they returned to the premises - applicants intoxicated - four complainants involved - all complainants employees of hotel - events captured on security video - applicants contend the sentences imposed are manifestly excessive and that the primary judge failed to give sufficient weight to the mitigating factors
[2]
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 - applicant Sargeant convicted of three counts of assault occasioning bodily harm in company - sentenced on each count to two years imprisonment suspended after four months with an operational period of two years - applicant contends sentencing judge wrongly found facts as to his involvement in the offences - 24 years old at time of offence - timely plea of guilty - no criminal history - good work history - remorse shown - references tendered suggesting offending out of character - whether sentence manifestly excessive
[3]
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 - applicant Price convicted of three counts of assault occasioning bodily harm in company and one count of assault occasioning bodily harm - sentenced on each count to two years imprisonment suspended after eight months with an operational period of two years - applicant contends sentencing judge took into account acts constituting uncharged offences - 24 years old at time of offence - timely plea of guilty - minor criminal history - good work history - remorse shown - references tendered suggesting offending out of character - whether sentence manifestly excessive
[4]
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 GRANTED - applicant Freier convicted of one count of grievous bodily harm and one count of assault occasioning bodily harm in company - sentenced on each count to four years imprisonment suspended after 16 months with an operational period of two years - applicant contends sentencing judge erred in imposing the same penalty on the offences of grievous bodily harm and assault occasioning bodily harm in company - 24 years old at time of offence - timely plea of guilty - minor criminal history - good work history - at time of commission of offences abusing cannabis - since offences attended counselling to assist with cannabis problem and better manage temper - positive references tendered - whether sentence manifestly excessive
Legal Aid Queensland for applicants Sargeant and Price
[14]
Director of Public Prosecutions (Queensland) for respondent
[15]
[1] McMURDO P: The three applicants, Freier, Price and Sargeant were charged on one indictment with an assortment of offences arising out of an incident on 14 December 2003. On 23 August 2005 Freier pleaded guilty to one count of assault occasioning bodily harm of Cameron Mathams in company (count 2) and one count of grievous bodily harm of Adrianus Pemen (count 4). Price pleaded guilty to assault occasioning bodily harm of Adrianus Pemen in company (count 1); assault occasioning bodily harm of Cameron Mathams in company (count 2); assault occasioning bodily harm of Daniel Begley in company (count 5) and assault occasioning bodily harm of Wayne Francis (count 6). Sargeant pleaded guilty to three counts of assault occasioning bodily harm in company (counts 1, 2 and 5). On 30 August 2005 Freier was sentenced on each count to four years imprisonment suspended after 16 months with an operational period of four years. Price was sentenced that day on each count to two years imprisonment suspended after eight months with an operational period of two years. Sargeant was also sentenced that day to two years imprisonment but his imprisonment was suspended after four months, again with an operational period of two years.
[16]
[2] The applicants all contend that the sentences imposed were manifestly excessive and that the learned sentencing judge failed to give sufficient weight to the mitigating factors. Freier also contends the judge further erred in imposing the same penalty on the less serious offence of assault occasioning bodily harm in company (count 2) as on the more serious offence of grievous bodily harm (count 4). Price further contends that her Honour erred in taking into account acts which constituted uncharged offences in determining his sentence. Sargeant additionally contends her Honour wrongly found facts as to his involvement in the offences and that this tainted the sentencing process.
[17]
[3] All three applicants were 24 years old at the time of the offences and are now 26 years old. Freier had three minor convictions for street offences. He was convicted and fined $1,200 in the Beenleigh Magistrates Court in 1997 for drug offences. In March 2002 he was convicted and fined $750 for dangerous operation of a motor vehicle in September 2001. He had no prior convictions for actual violence and had not previously been sent to prison.
[18]
[4] Price had three prior convictions for street offences for which he was convicted and fined. He was placed on a good behaviour bond without conviction and ordered to pay $900 compensation for an assault occasioning bodily harm committed in February 2001. This offence occurred when Price was attending a party at Rochedale. He was intoxicated and had an argument with another partygoer whom he punched to the left eye, damaging the complainant's glasses and cutting his face causing minor bleeding, pain and discomfort.
[19]
[6] The offences occurred about 2.00 pm on Sunday, 14 December 2003 at the Glen Hotel, Eight Mile Plains. The complainants Pemen and Mathams were security officers, Mr Begley a duty manager and Mr Francis a bartender at the hotel. The applicants arrived at the hotel, apparently already very intoxicated. They were refused entry after Sargeant urinated outside the hotel. The subsequent events were recorded on security cameras and a CD-ROM was tendered and played at sentence. The recordings show a series of still photos taken at three second intervals by differently positioned cameras. Her Honour viewed the recordings several times. They were played during counsel's submissions in this Court and I have also reviewed them several times in my Chambers.
[20]
[7] Her Honour described the facts as follows. A large number of members of the public were in attendance at the hotel on a deck area enjoying their Sunday afternoon. Freier argumentatively questioned the security officers' decision to refuse entry. The security officers retreated several times during that conversation but Freier persisted and "invaded their personal space". Freier threatened to "make mincemeat" of Pemen. Without provocation, Price either struck one or possibly two blows at Pemen, or perhaps was pushed towards him, and as a result an altercation broke out. Mathams came to the assistance of Pemen and braced his arms around Price's chest. Sargeant then attacked Mathams. Price forced Mathams against a doorway where Sargeant held him by the throat. Pemen tried to assist Mathams by signalling with his hand to Freier to keep out of the fracas.
[21]
[8] There is then a six second break in the recording. Her Honour found that Price next stood over Pemen who was by this time lying on the ground. Freier grabbed Mathams' neck. Sargeant was momentarily on the ground. Freier then struck Mathams. Sargeant crouched with his fist raised over Pemen who was still on the ground. Sargeant next delivered a blow to Pemen.
[22]
[9] This last finding is disputed by Sargeant in his application. Her Honour's finding was, however, an inference that could be drawn from the recording which is by no means entirely clear; it was not inconsistent with any submission made by the prosecution or by Sargeant's counsel at sentence. In any case, it does not seem that this finding played any particular significance in the determination of Sargeant's sentence; he was certainly an active participant in the fracas. This contention does not assist Sargeant in his application.
[23]
[10] Her Honour found that two other men known to the applicants attempted to intervene but the applicants followed Mathams as he retreated around a corner of the hotel. The applicants returned past Pemen, who was bloodied and injured on the ground. Pemen attempted to stand but was unsteady on his feet. Staff members gave him first aid.
[24]
[11] On the prosecution case these events constituted count 1 (the assault occasioning bodily harm in company by Price and Sargeant on Pemen) and the first instalment of count 2 (the assault occasioning bodily harm in company by all three applicants on Mathams) which also continued very soon after.
[25]
[12] Her Honour found that the applicants returned about two and a half minutes later. Freier approached Mathams who was standing near Pemen, seated on a bench. Sargeant stood near Begley who was standing near Mathams. I note that Pemen, despite his injuries, got up, apparently in anticipation of another altercation. Her Honour found that Price positioned himself behind Pemen. Freier moved towards Mathams and called him a "fuckhead". Begley and Pemen then moved towards Freier and Mathams as Freier moved towards Mathams as if to strike him. Pemen struck out at Freier in a way which Freier later conceded to police was ineffectual. Her Honour found that Freier then punched Pemen with such force as to render him unconscious. It was this blow that resulted in Pemen suffering grievous bodily harm at the hands of Freier (count 4).
[26]
[13] Her Honour found that Begley tried to restrain Sargeant. Price and Sargeant then confronted Begley who shortly afterwards was seen to be crouching on the ground. This constituted count 5 (the assault occasioning bodily harm in company by Price and Sargeant on Begley).
[27]
[14] Her Honour found that meanwhile Freier continued to assault Mathams. When Francis came to assist Mathams, Price left Begley who was crouching on the ground and pursued Francis into the bar area into which he had retreated. Mathams went to Begley's assistance. Freier then delivered another blow to Mathams and assaulted him as he crouched on the ground. Whilst Mathams was against the wall in a crouched position, Freier delivered one or perhaps two knee-type blows to his stomach. Sargeant attempted to join in this assault on Mathams but was prevented by two bystanders. These attacks on Mathams were part of the continuing offence charged in count 2 (assault occasioning bodily harm in company by Freier, Price and Sergeant on Mathams).
[28]
[15] Price meanwhile assaulted Francis in the bar area (count 6).
[29]
[16] It is convenient at this point to deal with Price's contention that her Honour wrongly took into account acts constituting uncharged offences. In R v D[1] this Court held that a sentencing court should not take into account, in determining the appropriate sentence for an offence, facts which would establish a separate offence but which did not form part of the offence for which the person has been convicted and is being sentenced.[2]
[30]
[17] In her sentencing remarks the learned primary judge set out the offences to which the applicants had pleaded guilty, the maximum penalties apposite, and briefly stated the facts relied upon by the prosecution to establish each count. Her Honour then stated "taking those factors into account and the following facts which I shall now outline, these are the matters upon which I intend to sentence each of you". Her Honour then set out those facts, the most relevant of which I have recited earlier in these reasons. After referring to Price's assault on Francis (count 6) her Honour continued:
[31]
"On your return outside Price you are then seen on the video to assault two other persons, namely, two intervening parties who were attempting to prevent further assaults upon Mathams. You pushed one in the back of the head and clipped the other across the head. You are, however, not charged before me with those assaults and, accordingly, I am not required to pass sentence upon you for that conduct and only state it as a matter of giving background.
[32]
Those are the facts upon which I am required to sentence each of you upon today. ...".
[33]
[18] Although the point could, perhaps, have been made a little more clearly, after reading the full sentencing remarks, I am satisfied her Honour in the passage quoted was stating her intention not to take into account any facts constituting an uncharged offence in sentencing Price. Perhaps her Honour was reluctant to amend her sentencing remarks to clarify her intention in the light of the observations in R v Tupou; ex parte A-G (Qld)[3] where recently the Chief Justice (Atkinson and Mullins JJ agreeing) broadly compared the correction of sentencing remarks to correcting the transcript of the summing up to a jury. Whilst also recognizing that a sentencing judge should never edit sentencing remarks to change the orally stated reasoning for the decision, in R v Christie[4] this Court (McMurdo P, McPherson JA and Douglas J agreeing) had previously given a slightly different emphasis to the proper practice for a trial judge when correcting sentencing remarks:
[34]
"The practice in Queensland has long been for the Court Reporting Bureau not to issue unedited sentencing remarks without the permission of the sentencing judge. Sentencing remarks, as with other ex tempore judgments, are routinely edited, not to change the substance of the reasoning in the decision but to tidy up the expression of those reasons, which is seldom as gracefully worded as a judge might wish.
[35]
That practice is entirely proper: see the discussion of this topic in JB Thomas, Judicial Ethics in Australia (2nd ed, 1997), pp 47-49.
[36]
Editing of sentencing remarks or ex tempore judgments generally is in a completely different category to the revising of a judge's direction to the jury where it is essential that the appellant and the Appeal Court have access to the precise direction given by the judge to the jury."[5]
[37]
[19] I am unpersuaded that in determining Price's sentence the learned primary judge wrongly took into account acts constituting uncharged offences. This contention does not assist Price in his application.
[38]
[20] Pemen was taken to hospital by ambulance. Police were called. They located the three applicants nearby. They had removed their shirts, suggesting a desire to avoid identification. They appeared intoxicated and were not interviewed by police until two days later. Freier gave what the prosecutor described at sentence as a reasonably honest account of events. He apologized for what he had done and offered his co-operation. He said he and his co-offenders had drunk a considerable amount of alcohol beforehand.
[39]
[21] The complainant Pemen was hospitalized and was severely injured. He suffered bruising to the head, a split lip that required three sutures, his left cheek bone was depressed and broken in multiple places and his left eye socket was shattered. The injuries were consistent with several blows to the left side of the face. He had surgery on 23 December 2003 for the internal fixation of the facial fracture and reconstruction of the orbital floor using titanium mesh. Without that surgical intervention he would have suffered facial asymmetry, decreased ability to chew, ophthalmological complications including double vision, and ongoing nerve damage. As at 4 February 2004 he had no feeling to the left side of his face, nose, lip and cheek. He had a two inch scar on his head and scarring to the left eye and eyebrow. His teeth were damaged and will cost about $1,700 to repair. His victim impact statement indicated that he was then still suffering the physical and emotional effects of these injuries including headaches, occasional bouts of double vision, ongoing nightmares and reclusive behaviour.
[40]
[22] Fortunately the injuries to the other complainants were comparatively minor. They did not provide victim impact statements.
[41]
[23] Freier and his partner had at sentence an 11 month old child and were expecting a second child in January 2006. He had the support of his partner and their families. Since leaving school in Year 11 he had been in steady employment. He had his own concreting business and worked as a subcontractor for concreting and building companies. At the time of the commission of this offence he was abusing cannabis but since the birth of his child he has abstained. Since his arrest he has attended counselling to assist with his cannabis problem and to better manage his temper. A number of references were tendered which indicated that Freier was a good worker, well thought of by his employer, a doting father and in many ways a good citizen.
[42]
[24] Price, too, had a good work history and at sentence was in a stable de facto relationship and had the support of his partner. After leaving school at the end of Year 12 he completed a painting apprenticeship and has worked successfully in that field. His counsel emphasized that the whole incident lasted no more than a few minutes and the period of actual violence occurred within 33 seconds. Price was heavily intoxicated when he became involved in the incident but accepted responsibility for his actions and was remorseful. References tendered on his behalf, including one from a local government councillor, noted his capacity for hard work, suggested that the offences were out of character, that he was in many ways a good member of the community and had promising prospects of rehabilitation. Price's counsel contended that a fully suspended sentence of 12 to 18 months was supported by comparable cases.
[43]
[25] Sargeant's counsel at sentence submitted that at the time of the offending Sargeant had recently terminated a long-term relationship with his fiancée. The resulting financial and emotional difficulties resulted in him drinking to excess. His parents attended the sentencing court and remained supportive of him. Sargeant too had a good employment history after he left school in Grade 11. References were also tendered in his favour suggesting that his offences were out of character. Sargeant, too, was remorseful and would not have been involved in this offending but for his extreme intoxication: he had fallen asleep in the car on the way to the hotel. Sargeant's counsel urged her Honour to impose an intensive correction order if the sentence was to involve a period of actual custody.
[44]
[26] It was common ground that each applicant's pleas of guilty were to be treated as timely. Price had wished to plead guilty since March 2005.
[45]
[27] The maximum penalty for the offence of grievous bodily harm to which Freier pleaded guilty was 14 years imprisonment. Since 1997 the maximum penalty for the offence of assault occasioning bodily harm in company has been 10 years imprisonment and for assault occasioning bodily harm without any circumstance of aggravation (count 6 involving only Price) seven years imprisonment. In the light of those statutory maximum penalties and the very extensive and serious injuries received by the complainant Pemen resulting from the offence of grievous bodily harm (count 4 involving only Freier) the learned primary judge was correct in all the circumstances here in imposing the heaviest penalty on Freier for count 4.
[46]
[28] The learned primary judge obviously gave careful consideration to the appropriate penalties to be imposed on each offender. She viewed the recording of the incident on multiple occasions. After hearing the sentencing submissions, her Honour reserved her decision for almost a week. Her Honour referred to comparable cases mentioned during the sentencing submissions and to the pertinent mitigating factors in respect of each applicant. Her Honour stated her concern that the offences had occurred in a public place in the presence of many citizens and considered the offences warranted a significant penalty to deter such drunken and violent behaviour.
[47]
[29] None of the many cases to which we have been referred as comparable by the counsel for the respondent and the applicants closely match the unique combination of the facts of this case. The sentence imposed on Freier for grievous bodily harm (four years imprisonment suspended after 16 months) does not immediately appear excessive for such a serious offence. It is supported by R v Swayn.[6] Swayn was sentenced to five years imprisonment for an offence of grievous bodily harm committed in 1996 when he and his brother stomped on the complainant's head at a nightclub. They were eventually separated by security guards. His brother was sentenced to six months imprisonment for assault occasioning bodily harm. The complainant suffered serious skull and cerebral injuries which affected his employment prospects and was subsequently diagnosed with a personality disorder. Swayn was 22 years old with a minor criminal history and was intoxicated at the time. He pleaded guilty at a late stage. This Court did not interfere with the sentence imposed. Whilst the injuries received by the complainant in Swayn were even more serious than those suffered by the complainant Pemen, Freier also pleaded guilty to an additional serious offence of assault occasioning bodily harm in company on the complainant Mathams for which, in practical terms, because of the concurrent nature of the sentence, no additional penalty was imposed. Swayn's offending pre-dated the 1997 amendments to the Criminal Code increasing the relevant maximum penalties.
[48]
[30] Freier's sentence is also supported by R v Everett.[7] Everett applied for an extension of time to apply for leave to appeal against a sentence of four years imprisonment with a recommendation for parole after 15 months for an offence of grievous bodily harm. Everett's co-accused hit the complainant and disabled him. Whilst he was disabled Everett punched him a number of times in the face and head. The complainant was hospitalized with bilateral fractures of both cheek bones requiring the insertion of metal plates. He developed complications in surgery from blood clots and almost died. He also suffered facial swelling, two black eyes and lost teeth and was permanently left with a loss of feeling in his lip and nose and had ongoing headaches. Everett was 33 years old and had no criminal history. The Court refused his application because it had no prospects of success. It is unclear whether his offending preceded the 1997 amendments to the applicable maximum penalties.
[49]
[31] The applicant Freier emphasizes two decisions of this Court: R v O'Grady; ex parte A-G (Qld)[8] and R v Tupou; ex parte A-G (Qld).[9] O'Grady was 28 years old with no prior convictions. He attacked two men in a street at midnight after they had left a restaurant with their wives. He was not in company with others. He pleaded guilty to one count of assault occasioning bodily harm and one count of doing grievous bodily harm. The complainant on the first count suffered a peri-orbital haematoma associated with a depressed fracture of the anterior wall of the left frontal sinus, was hospitalized overnight and experienced headaches for 10 days. The complainant in the second count (grievous bodily harm) was knocked unconscious, suffered a laceration to the right lower eyelid/cheek junction and a blow out fracture of the right medial orbital walls and floor which was repaired by surgery 10 days later. If untreated, permanent double vision would have resulted. At sentence the complainant was still suffering distorted vision. O'Grady was very intoxicated. This Court accepted the Attorney-General's contention that an appropriate sentence was two years imprisonment with an early suspension to take into account the mitigating factors and that the sentence imposed of 12 months imprisonment to be served by way of an intensive correction order was manifestly inadequate. Because O'Grady had already satisfactorily completed two months of the intensive correction order and the moderating principles applicable to Attorney-General appeals, the majority wholly suspended that term of imprisonment with an operational period of three years. The concession made by the Attorney-General as to the appropriate head sentence may have been overly favourable to O'Grady. In any case violence committed by a sole drunken protagonist against those in a group of four, frightening as it must have been, is not as serious as Freier's conduct: he was in the company of two others when he assaulted Mathams; although he was charged alone with grievous bodily harm he had two aggressive associates nearby. O'Grady, which turns very much on its own facts, does not persuade me that Freier's sentence was manifestly excessive.
[50]
[32] Tupou assaulted the complainant, who suffered from cerebral palsy, at a taxi rank outside the Treasury Casino late at night. Tupou was 18 years old. After punching the complainant and knocking him to the ground he punched him a second time. It was not clear whether he also kicked the complainant. Tupou's friend pulled him away and they ran off. Later he was interviewed by police and admitted to the offence, citing his intoxication as a reason for his behaviour. He was a diabetic and had failed to take insulin that night which compounded the adverse effect on him of the alcohol. The complainant suffered a depressed fracture of the right cheek, a fracture to the left cheek, a broken nose, a fractured jaw and loosening of three teeth. He was unable to eat solid foods for two months and lost seven kilos. He experienced severe headaches and had difficulty sleeping for some months. He was off work for three months, suffered a loss of confidence and had to take less lucrative employment. Tupou had some minor street offences for the most recent of which he was placed on a good behaviour bond which was breached by the commission of this offence. The Court of Appeal noted that the offence was unprovoked and that a head sentence of three to four years imprisonment would have been appropriate even taking into account the plea of guilty. The Court distinguished O'Grady and determined that the three year head sentence imposed on Tupou was within range, allowing for the moderate approach taken by this Court when allowing an Attorney-General's appeal, but suspended it after 15 months rather than the original nine months. Not only does Tupou not demonstrate that the sentence imposed on Freier was manifestly excessive, it supports it.
[51]
[33] The applicants, especially Price and Sargeant, placed considerable emphasis on this Court's decision in R v Walsh, Sayer & Thompson; ex parte A-G (Qld)[10] where the Attorney-General appealed from non-custodial sentences imposed on offenders aged between 23 and 24 who were fined for the offence of assault occasioning bodily harm in company committed at the Caxton Hotel in Brisbane. This Court took into account the principles applicable in Attorney-General appeals against sentence but nevertheless varied the orders made at first instance by imposing a term of imprisonment for six months suspended for an operational period of 12 months. That case concerned but one complainant whereas Price committed offences against four different complainants and Sargeant committed offences against three different complainants. It must also be noted that the offences there occurred in 1996 before the increased penalties apposite to offences of assault occasioning bodily harm and in company came into force.
[52]
[34] The applicants also emphasized the decision of this Court in R v Yanner&Yanner; ex parte A-G (Qld)[11] where this Court allowed the Attorney-General's appeal against sentence by substituting a term of 18 months imprisonment fully suspended for four years for the original sentence of three years probation and 240 hours community service. Despite the serious facts of the offending, this Court was swayed by the moderating factors involved in an Attorney-General's appeal, the delay of two and a half years since the impulsive violent acts occurred during a single course of conduct, the concession made by the prosecutor at sentence that a non-custodial sentence was the "better course" and that Yanner had already paid compensation and completed 170 of the 240 hours community service ordered. After reviewing a wide range of comparable cases, the majority observed that the appropriate penalty in such a case covers a fairly wide range with the median being a sentence of 18 months imprisonment with a requirement that three to six months of that imprisonment be served in custody.[12] Those observations suggest the sentences imposed on Price and Sargeant, whilst by no means lenient, were within the established range.
[53]
[35] The three applicants were relatively young at the time of these offences but at 24 they can be expected to show considerably more maturity than callow 17 or 18 year old youths. Their age and intoxication offers no satisfactory explanation and certainly no excuse for their loutish behaviour.
[54]
[36] The attacks were in a well-populated public place and so were distressing not only to the complainants immediately affected but to the many others present who were entitled to a few peaceful hours at leisure in their local hotel. The assaults were unprovoked and committed on employees who did nothing more than attempt to perform their lawful duty in refusing entry to the hotel to those who were plainly intoxicated. Many of the offences were in company. The learned primary judge appropriately recognized that deterrence was an important factor in sentencing all three offenders.
[55]
[37] Freier's attack on Pemen caused very serious injuries. Although on the prosecution case the grievous bodily harm was caused by a single blow, this was not a case where Freier's only violence proffered during the entire incident was a single blow causing unforeseeable serious injury. It is fortunate Pemen was not even more seriously injured. As this Court all too frequently sees, even one violent blow to the head can result in serious permanent brain damage and even death. Freier threw numerous punches and participated in various acts of violence during the assault on Mathams and was a leading player in the fracas. Freier had no particularly relevant prior convictions but his record was not unblemished. Price had a prior conviction for assault but his offending on this occasion, though more serious than Sargeant's, was not nearly as serious as Freier's attack on Pemen causing grievous bodily harm. Sargeant's lack of prior convictions and his slightly less serious offending justified, as the primary judge recognized, the least penalty. All three applicants pleaded guilty in a timely fashion, co-operated with the administration of justice, expressed remorse for their shameful conduct and had good prospects of rehabilitation because of their family support, good references and excellent work histories.
[56]
[38] In Sargeant's case a fully suspended sentence or a term of imprisonment to be served by way of an intensive correction order could have been imposed. Price and Freier could also have been sentenced to slightly lesser penalties than those imposed because of their many mitigating considerations. I am not, however, persuaded that their sentences were outside the appropriate range making them manifestly excessive. The learned sentencing judge gave sufficient recognition to the considerable mitigating factors in each case by, first, imposing head sentences within the established range in the light of the seriousness of the offences and, second, in suspending those terms of imprisonment earlier than would otherwise have been appropriate. I would therefore refuse Price and Sargeant's applications for leave to appeal against sentence.
[57]
[39] The cases to which I have referred demonstrate, however, that Freier's sentence of four years imprisonment suspended after 16 months with an operational period of four years on count 2 (assault occasioning bodily harm in company of Mathams) is manifestly excessive. Although substituting a lesser penalty will have no practical effect on the actual term of imprisonment Freier will be required to serve before suspension, his application must be granted on this limited basis. Her Honour's error in respect of count 2 does not affect the validity of the exercise of her sentencing discretion in respect of count 4. I would substitute a sentence on count 2 of two years imprisonment suspended after six months with an operational period of two years.
[58]
1. In CA No 225 of 2005 R v Sargeant and CA No 226 of 2006 R v Price in each case the application for leave to appeal against sentence is refused.
[59]
2. In CA No 227 of 2005 R v Freier the application for leave to appeal against sentence is granted and the appeal allowed to the extent of vacating the order made in respect of count 2 and substituting a sentence of two years imprisonment suspended after six months with an operational period of two years. The appeal is otherwise dismissed.
[60]
[41] JERRARD JA: In these applications I have read the President's judgment and agree with her reasons and proposed orders.
[61]
[42] The applicant Scott Freier was convicted on count 4, charging him with doing grievous bodily harm to Mr Pemen, and of count 2, charging him with assault occasioning bodily harm to Mr Mathams, committed in company. The co-offenders on count 2 were Mr Sargeant and Mr Price.
[62]
[43] Mr Price was convicted of three counts of assault occasioning bodily harm in company, counts 1, 2, and 5; and one count of assault occasioning bodily harm, count 6. The four victims were Mr Pemen (count 1), Mr Mathams (count 2), Mr Begley (count 5), and Mr Francis (count 6).
[63]
[44] Mr Sargeant was convicted of three offences of assault occasioning bodily harm in company, counts 1 (where the victim was Mr Pemen), count 2 (where the victim was Mr Mathams), and count 5, where the victim was Mr Begley. Mr Sargeant's co-accused on counts 1 and 5 was Mr Price, and on count 2 Mr Price and Mr Freier.
[64]
[45] The conduct alleged to constitute the offence in count 1, committed by Mr Price and Mr Sargeant against Mr Pemen, were a number of blows delivered to Mr Pemen, and pushing him into a wall. The conduct alleged to constitute count 2, the offence committed against Mr Mathams, committed by all three applicants, included Mr Mathams being held against a wall with his hand on his throat, and conduct by Mr Freier in which Mr Mathams was punched and had a knee pushed into his body. Mr Mathams had been assaulted when he came to the assistance of Mr Pemen.
[65]
[46] Counts 4, 5, and 6 occurred after a three minute interval when the three applicants returned to the premises, apparently so that a mobile telephone could be borrowed from an acquaintance for the purpose of calling someone for a lift home. It was then that Mr Freier caused grievous bodily harm to Mr Pemen, by a punch, (count 4) thrown after Mr Pemen had made an entirely ineffectual assault on Mr Freier. Following that severe punch, Mr Price and Mr Sargeant committed their joint offence of assault occasioning bodily harm on Mr Begley in company (count 5), in which Mr Begley was hit with blows thrown by both offenders. The last offence committed was the assault occasioning bodily harm committed by Mr Price on Mr Francis, principally consisting of a push and a punch, inside the hotel.
[66]
[47] Regarding the four year head sentence for grievous bodily harm imposed on Mr Freier (count 4), that offence was committed by one single blow. In R v O'Grady[2003] QCA 137; (2003) 138 A Crim R 273 (considered in detail in the President's reasons in this appeal) de Jersey CJ referred, at 275, to three "single blow" cases where grievous bodily harm resulted, R v Elliott[2001] QCA 507, R v Craske[2002] QCA 49, and R v Dodd[1998] QCA 232. In those the sentences imposed were respectively two and a half years imprisonment, 18 months imprisonment, and 18 months imprisonment. Mr Craske had done grievous bodily harm by a kick to the head when the complainant was on the ground; that complainant had provoked the altercation between them. Mr Craske's sentence was suspended after four months. Mr Dodd had parole recommended after six months of his 18 month sentence, and Mr Elliott was recommended for parole after one third of his sentence. Those sentences were significantly less than the four years imposed here, but Mr Freier also assaulted Mr Mathams by lifting his knee into Mr Matham's body, (count 2); and Mr Freier had offended in company.
[67]
[48] The four year head sentence was also more severe than the three year head sentence imposed on the applicant in R v Tupou; ex parte A-G (Qld) [2005] QCA 179, where that respondent had knocked the complainant to the ground with one punch, causing grievous bodily harm. That respondent weighed approximately 90 kg and was 18. The complainant was about 25 years old, a lightly built man, who suffered from cerebral palsy. That respondent had also punched the complainant a second time, as that victim lay on the ground. The Chief Justice said on the Attorney's appeal that a head sentence of three to four years imprisonment was appropriate, but let the head sentence of three years imprisonment stand because of the moderate approach taken by this Court when allowing an Attorney's appeal. The Chief Justice varied the unsuspended portion by extending it to 15 months, and that was the judgment of the Court. As the President remarked, that decision supported the head sentence imposed here on Mr Freier.
[68]
[49] Regarding Mr Price, he was the first person to use violence that day, and all relevant events began after he had punched Mr Pemen to the face, and then pushed him (count 1). It was after that that Mr Mathams attempted to grab Mr Price round the arms from behind, but was then set upon by Mr Sargeant, and then by Mr Price as well (count 2). After the three offenders returned to the hotel, in the second incident, Mr Price and Mr Sargeant assaulted Mr Begley and pushed him to the ground, (count 5) and then Mr Price pursued Mr Francis into the hotel, pushing him over and then punching him (count 6). Those are the offences for which he was sentenced. He points to the sentences imposed in the matter of R v Walsh, SayerandThompson[1998] QCA 217, in which those offenders pleaded guilty to assault occasioning bodily harm while in company. They were all fined, and this Court also ordered on an Attorney's appeal that each be sentenced in addition to six months imprisonment, to be suspended for an operational period of 12 months. That matter can be distinguished because that complainant had offered provocation, and although he was very severely assaulted and suffered significant injury, grievous bodily harm was not charged. He was also the only victim.
[69]
[50] In Mr Sargeant's case, he did assault Mr Mathams by holding him against the wall, (count 2) and he joined in the assault on Mr Pemen. This was before the three applicants had left the area; after they returned Mr Sargeant, together with Mr Price, assaulted Mr Begley and pushed him to the ground, and he was recorded on video standing over Mr Begley and assaulting him as Mr Begley attempted to protect his head (count 5). Mr Sargeant was the person least involved in acts of violence, and his part seems to have been restricted to wrestling and scuffling with the victims, and perhaps punching Mr Begley. He had no prior convictions and a good employment history.
[70]
[51] Mr Sargeant and Mr Price referred this Court to the sentences imposed in the matter of R v Yanner and Yanner; ex parte A-G[1999] QCA 515, where those two respondents between them committed offences of assault occasioning bodily harm in company (one offence), and three offences of assault occasioning bodily harm, on four separate victims. The two Yanners had set upon one complainant, a Mr Rice, kicking and punching him after he was on the ground, and when his wife came to his aid, Murrandoo Yanner punched her in the face. When the nurse in charge of the local health clinic arrived to provide assistance to any injured person, Murrandoo Yanner punched him in the forehead too, knocking him to the ground. About half an hour latter, and after the two Yanner brothers had done considerable damage to property, one of two Telstra workers who had heard smashing sounds was confronted by Murrandoo Yanner, who knocked the Telstra worker over a number of times, repeatedly picking him up and then knocking him down again. On an appeal by the Attorney-General this Court ordered that Murrandoo Yanner be imprisoned for 18 months, wholly suspended for four years. The judgment of the majority makes it clear that Murrandoo Yanner was not required to serve any actual time in custody (of between three to six months) for three reasons: one was that by the time the appeal was heard it was two and a half years since that behaviour had happened, another that on the original sentence the Crown Prosecutor had urged nothing more than a fully suspended sentence and had conceded a non-custodial sentence was available, and finally that Murrandoo Yanner had already paid the ordered compensation of $2,500, and had completed 170 of the 240 hours of the ordered community service. Mr Yanner's conduct was considerably worse than anything alleged against either Mr Price or Mr Sargeant, and Mr Yanner was very fortunate in the sequence of events before the Attorney's appeal was heard in his case.
[71]
[52] Mr Price assaulted four men and received a minimum eight month term of imprisonment; and Mr Sargeant also assaulted three of those men and received a minimum four month term. The victims included Mr Pemen, who had clearly been considerably disabled before he was later knocked unconscious by Mr Freier. I do not think those sentences were manifestly excessive, nor was the head sentence imposed on Mr Freier.
[72]
[53] DOUGLAS J: I have had the advantage of reading the reasons for judgment of the President and agree with them and the orders proposed by her Honour.