Court of Appeal (Qld)|2006-03-15|Before: McMurdo P, Williams JA and Fryberg J, Separate reasons for judgment of each member of the Court, each concurring, as to the order made
McMurdo P, Williams JA and Fryberg J, Separate reasons for judgment of each member of the Court, each concurring, as to the order made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
- APPEAL BY
CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE – where applicant
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 – where applicantpleaded guilty to unlawful wounding withintent to do grievous bodily harm– where applicant was sentenced to six years imprisonment with arecommendation that he beeligible for post prison community based release after2½ years - where applicant struck a single blow to the complainant’shead with a machete after complainant entered applicant’s property andremonstrated with him – whether sentence manifestlyexcessive in all thecircumstancesCRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENTAND PUNISHMENT – SENTENCE – FACTORS TO BE TAKENINTO ACCOUNT –FACTUAL BASIS FOR SENTENCE - where sentencing judge made finding based on victimimpact statement – purposeof victim impact statement – whether
victim impact statement should be relied upon in sentencingR v
Ainsworth [2000] QCA 163
CA No 26 of 2000, 5 May 2000, consideredR v
Marks [2002] QCA 34
CA No 268 of 2001, 18 February 2002, consideredR
v Melissant [2003] QCA 122
CA No 443 of 2002, 19 March 2003,
considered
R v Steensen [2003] QCA 490
CA No 201 of 2003, 7 August 2003,
considered
Judgment (26 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
THE PRESIDENT: Justice Fryberg will deliver his reasons first.
[3]
FRYBERG J: On 19 December last year the applicant was sentenced to imprisonment for six years after pleading guilty to unlawful wounding with intent to do grievous bodily harm. A recommendation was made that he be considered for post-prison community-based release after two and a half years. He now applies for leave to appeal against that sentence on the ground that it is manifestly excessive.
[4]
The offence was the culmination of a period of animosity between neighbouring families. The events which immediately gave rise to the offence were simple. An altercation occurred at a video store between the complainant's wife and the applicant's wife. When she arrived home the former told her husband of the altercation. They went to the applicant's home. The complainant was in a somewhat upset state and might have appeared to the applicant to have been a little aggressive. He entered the premises while his wife waited near the letterbox. The applicant was sitting on a chair in the entrance to his garage, barbecuing some food. His wife was standing behind him. The complainant said to the applicant, "Can you stop your wife from touching my wife?" The applicant did not answer but pushed the complainant in the shoulder. The applicant's wife then told the complainant in offensive terms to leave and walked toward him holding a large stick. The complainant said to her, "Don't you try and hit me, I'm not talking to you." The applicant then pushed past his wife and the complainant saw that he had a machete in his right hand. He poked the complainant in the chest with it. Then, in the words of the Crown Prosecutor:
[5]
"The complainant stepped back and tried to kick the machete away from his body with his leg. He then picked up a plastic chair, the one that the prisoner had been sitting on. ... The complainant then felt a shadow come over his head and he stepped aside. He then felt a blow to the right side of his head. He touched his head and noticed it was wet. He said to the accused, 'You've hit me' and then he turned and went home."
[6]
The complainant described feeling pain and being scared.
[7]
The complainant suffered a small superficial laceration to the forearm and mid torso and a deep nine centimetre laceration to the right side of his head. The laceration required 17 sutures but no evidence of acute intra-cranial injury was found. By his plea of guilty the applicant admitted his intention to cause grievous bodily harm. The laceration healed leaving no permanent injury. The complainant alleges that he, his wife and his son now all suffer serious psychiatric injuries but it is unclear whether this is alleged to be the result of the blow to the head or of stalking by the applicant and his family. No medical evidence in support of the allegation was tendered.
[8]
The applicant was spoken to by police at his home. He told them a number of lies about what had occurred and what weapon he had used. Subsequently he was interviewed at the police station where he alleged that he had only swung the machete to scare the complainant and had not meant to hit him.
[9]
After a full hand-up committal, the Crown presented an indictment in this Court charging attempted murder. After five months that charge was withdrawn and the matter was remitted to the District Court for determination of the alternative count to which the applicant ultimately pleaded guilty. The plea was a timely plea.
[10]
The applicant was 44 years of age at the time of the offence. Although not a first offender, he had little relevant criminal history. He and his family moved away from the neighbourhood a few months after the offence. He was older and smaller than the complainant. He had a good work record and a number of favourable references were tendered.
[11]
The applicant has not alleged that the sentencing judge made any particular error. He submits simply that by reason of the duration of the sentence, the judge failed to give sufficient weight to:
[12]
• the fact that there was no persistence in the attack
• the fact that the attack was essentially one blow (if that is a different point)
• the fact that the complainant came to the home of the applicant in a somewhat aggressive and upset state
• the fact that there was a full hand-up committal and the applicant entered a timely plea of guilty, and
• the fact that the applicant did not subsequently engage in hostilities but moved away from the neighbourhood.
[13]
His counsel pointed out that in the present case, unlike others,
[14]
• the complainant entered the applicant's home, apparently without permission (but it is not suggested that he was trespassing)
• the complainant was younger and bigger than the applicant
• there was no pre-meditation
• the offence was not part of a series of offences, and
• there was only one wound and one complainant.
[15]
Counsel referred us to seven cases by way of comparison. Three of them pre-dated the enactment of Part 9A of the Penalties and Sentences Act1992 (Qld) and are for that reason unhelpful. The other four, with the possible exception of Steensen, were all more serious than the present case. The applicant submitted that the cases demonstrate that the range for this case was three and a half to four and a half years' imprisonment with a recommendation for early post-prison community-based release. That is less than the five years for which counsel for the applicant contended below. The respondent submitted that the sentence imposed was in accordance with general sentencing trends for such offences.
[16]
Ainsworth (R v Ainsworth[2000] QCA 163; CA No 26 of 2000, 5 May 2000) was originally sentenced after a late plea of guilty to six years' imprisonment, but that penalty was imposed after taking into account, at least to some extent, a period of 429 days of pre-sentence custody which could not be declared. The trial judge did not spell out how much of that period was taken into account nor how that was done, but he must have been thinking of at least seven and a half to eight years' imprisonment initially. He made no recommendation for post-prison community-based release. In the result Ainsworth would have to serve nearly four and a half years before eligibility. His application was dismissed. The Court of Appeal noted that no serious violent offence declaration had been made because none had been asked for.
[17]
Marks (R v Marks; ex parte Attorney-General (Qld)[2002] QCA 34; CA No 268 of 2001, 18 February 2002) was the respondent to an Attorney-General's appeal. The Court of Appeal increased a sentence of five years' imprisonment, imposed after a verdict of guilty, to seven years' imprisonment. No serious violent offence declaration was made, presumably in recognition of the fact that it was an Attorney's appeal. There was no recommendation for early post-prison community-based release, so he would serve three and a half years.
[18]
Melissant (R v Melissant[2003] QCA 122; CA No 443 of 2002, 19 March 2003) pleaded guilty on the morning of trial and was sentenced to six years' imprisonment with a serious violent offence declaration. He would therefore have to serve 4.8 years before becoming eligible for post-prison community-based release. His application was dismissed.
[19]
Steensen (R v Steensen[2003] QCA 490; CA No 201 of 2003, 7 November 2003) applied for leave to appeal against a sentence of imprisonment for five years with a serious violent offence declaration. He would have to serve four years before becoming eligible for post-prison community-based release. This case was, I think, only a little more serious than the present. The application was dismissed.
[20]
In the present case the applicant has the benefit not only of the absence of a serious violent offence declaration but also of a recommendation for early post-prison community-based release. The factors which make this case less serious than those just referred to are in my judgment adequately reflected thereby. Had the complainant not moved he might have been killed. Whatever the rights and wrongs of the neighbourhood dispute, they could not justify or excuse what the applicant did nor the intent with which he did it.
[21]
The cases cited support the sentence which was imposed by the sentencing judge. It was carefully crafted, having regard to providing an effective recommendation for post-prison community-based release.
[22]
One other matter should be mentioned. In his sentencing remarks the judge referred to the "consequences not only to [the complainant] physically but to his mental and emotional and psychological health and the impact it has also had on his wife and children." The information upon which his Honour made that finding came from a victim impact statement prepared by the complainant. Sentencing judges should be very careful before acting on assertions of fact made in victim impact statements. The purpose of those statements is primarily therapeutic. For that reason victims should be permitted, and even encouraged, to read their statements to the court. However, if they contain material damaging to the accused which is neither self-evidently correct nor known by the accused to be correct (and this includes lay diagnoses of medical and psychiatric conditions) they should not be acted on. The prosecution should call the appropriate supporting evidence. It is unfair to present the accused with the dilemma of challenging a statement of dubious probative value, thereby risking a finding that genuine remorse is lacking, or accepting that statement to his or her detriment.
[23]
THE PRESIDENT: I agree that the application for leave to appeal against sentence should be dismissed.
[24]
The particularly serious element of a conviction for this offence is that of intent to do grievous bodily harm. That is why the maximum penalty is life imprisonment compared with a maximum penalty of but seven years for the offence of unlawful wounding without such an intent.
[25]
The applicant was a mature man with a prior relevant conviction, although many years ago. The offence had serious aspects to it and unfortunate consequences for the victim and his family. It is true the complainant came into the applicant's yard and confronted him. No doubt this was a catalyst for the offence, but the applicant did not ask the complainant to leave the premises before attacking him with a potentially lethal weapon with an intent to do him grievous bodily harm.
[26]
Despite the mitigating circumstances thoroughly referred to by the applicant's counsel and the cases to which he also took us in some detail, I am not persuaded the sentence imposed was, in the circumstances, manifestly excessive.