R v Swayn; ex parte A-G

Judgment (54 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the appellant

[2]

The appellant Attorney-General appeals against a sentence imposed on the respondent in the District Court on 27 November 2008 of eight months imprisonment with a parole release date of 27 November 2008 for an offence of grievous bodily harm. The respondent was tried with his brother, Patrick Swayn, on one count of burglary with violence while armed in company, one count of grievous bodily harm and one count of assault occasioning bodily harm while armed in company. The jury could not reach a verdict with respect to the first count and the accused were acquitted on the last count.

[3]

[2] The respondent was 27 at the time of the offence. He had a relatively minor criminal history but it did include a conviction on 24 February 1998 for assault occasioning bodily harm and a conviction on 24 June 2004 for common assault. He was sentenced to six months imprisonment for the former offence and fined $600 for the latter. At the time of sentencing the respondent resided with his pregnant de facto spouse, their three month old child and the respondent's 10 year old daughter. The respondent had been working as a trades assistant prior to the offence.

[4]

[3] A person by the name of Fielder had a grievance against the complainant arising out of a drug transaction. He told the respondent and the respondent's brother Patrick that the complainant had threatened members of their family. In consequence of that alleged threat, Fielder, the respondent and his brother went to an apartment where they found the complainant. Fielder and the respondent's brother entered the apartment and the respondent's brother bashed the complainant, fracturing his lower right jawbone and left upper jawbone. His left cheekbone was also fractured and he sustained substantial bruising.

[5]

[4] The respondent did not enter the premises but went there believing that his companions intended to assault the complainant. The respondent's role was to provide assistance to his co-offenders should it be required.

[6]

[5] Fielder, who was 41, pleaded guilty to all three counts and was sentenced at an earlier date on the basis that he did not participate in the assault. He was sentenced to three years imprisonment for count 1 (burglary), two years imprisonment for the grievous bodily harm count and 18 months imprisonment for the assault count. Fielder gave evidence at the trial of the respondent and his brother. He had two prior convictions for rape for which he had been sentenced to six years imprisonment and a conviction for grievous bodily harm. Fielder's sentences were suspended after six months to reflect his special circumstances. The sentencing judge intimated that were it not for those circumstances, the sentences would have been suspended after 12 months.

[7]

[6] Patrick Swayn was 31 at the time of the offence but had more extensive criminal history than his brother. He had been sentenced on 24 February 1998 to five years imprisonment for grievous bodily harm. The respondent was his co-offender. On 4 February 2002 he was sentenced to nine months imprisonment for assaults occasioning bodily harm and 18 months probation was ordered on 24 June 2004 for two charges of common assault. He was sentenced to three years imprisonment suspended after eight months with an operational period of three years. That sentence took into account four months served in pre-sentence custody.

[8]

[7] It is submitted by counsel for the appellant that the sentencing judge erred by excessively reducing the respondent's sentence in comparison with that of his brother. It is submitted that the difference in the sentences gives rise to the appearance of injustice and demonstrates that the respondent's sentence is manifestly inadequate.

[9]

[8] It was further submitted as follows. The differences in ages and criminal histories of the respondent and his brother are not so great as to justify a significant differentiation in sentences. The respondent was deemed criminally liable pursuant to s 7(b) of the Criminal Code 1899 for the grievous bodily harm caused by his brother. While parties to an offence can receive a more lenient sentence than the principal offender, the difference is ordinarily small: see R v Casey[1] and R v Kitching.[2]

[10]

[9] The respondent did not facilitate the administration of justice. The fact that his incarceration may have an adverse affect on his family was, in the ordinary circumstances of this case, immaterial.[3]

[11]

[10] Making allowances for differences in age, criminal history and the part played by the respondent, the head sentence of three years imprisonment should be reduced to no less than two years. However, because the sentencing judge suspended Patrick Swayn's sentence after serving a third, less pre-sentence custody, the two year term should be suspended after serving eight months.[4]

[12]

[11] Counsel for the respondent's submissions were to the following effect. R v Casey and R v Kitching are not authority for the proposition that the differences between sentences imposed on co-offenders are ordinarily small. In each of those cases the differences in the levels of criminality of the various offenders were also small. Reference was made to R v Vanderwerff,[5] in which the Court said,[6] referring to the criminal responsibility of getaway drivers for robberies:

[13]

"Section 7(1) is however concerned to impose criminal responsibility, and even in that context it is possible for various participants to be convicted under s7(1)(b) of offences of differing levels of seriousness compared with the offence committed by the person who, under s7(1)(b), 'actually does the act ...': cf R v Barlow (1997) 188 CLR 1. In any event, the considerations relevant on sentencing are by no means identical with those which attract criminal responsibility."

[14]

[12] The principal features distinguishing the criminality and criminal responsibility of each of the subject offenders are as follows:

[15]

(a) The respondent's brother was the principal offender. He struck the blows which inflicted the grievous bodily harm;

[16]

(b) Fielder was present in the room when the offence took place and orchestrated the involvement of the respondent and his brother;

[17]

(c) The respondent was outside the room and provided "aid through encouragement or a willingness to make himself available to assist if necessary";

[18]

(d) Both the co-offenders had a more serious criminal history than the respondent.

[19]

[13] The decisions of R v Verheyen[7] and R v Tupou; ex parte A-G (Qld)[8] are of little assistance in that they both contemplate appropriate sentences only for those criminally responsible pursuant to s 7(1)(a) of the Criminal Code. The offence in Tupou concerned violence committed in a public place at night.

[20]

[14] The sentencing range for offences of grievous bodily harm is much wider than the appellant's submissions suggest. That is demonstrated by R v Cuff [9] and R v O'Grady; ex parte A-G (Qld).[10] The appeal ought to be approached in accordance with the principles enunciated in R v Melano; ex parte Attorney-General.[11]

[21]

[15] In Cuff, the 27 year old respondent with two prior convictions for assault occasioning bodily harm, punched the complainant in the side of the face fracturing his jaw. The injury required remedial surgery. The attack was unprovoked and spontaneous. Williams JA, with whose reasons the other members of the Court agreed, observed that ordinarily such an offence could be expected to result in a sentence which required some time in actual custody. His Honour concluded that in light of the "unusual" circumstances of the case the Attorney-General's appeal against the sentence of 12 months imprisonment, to be served as an intensive correction order, should be dismissed.

[22]

[16] The considerations which led to this conclusion were: the respondent had not spent time in prison for any other offence; the absence of premeditation or planning; a prompt offer to pay $10,000 compensation to the complainant and its payment; the remorse demonstrated by the payment; the respondent had borrowed the $10,000 and to incarcerate him would deprive him of the ability to make repayments and result in additional hardship.

[23]

[17] Plainly the Court's decision in Cuff was influenced by a number of quite distinctive features which are not present in the subject case. The same may be said of O'Grady. In O'Grady, the Court of Appeal set aside a sentence of 12 months imprisonment to be served by way of intensive correction order and a sentence of two years imprisonment wholly suspended with an operational period of three years was substituted. Williams JA, with whose reasons Atkinson J agreed, described the incident as "unprovoked, gratuitous street violence ... the culmination of a reasonably prolonged attack on two passers-by who were unknown to the respondent." The principal complainant was punched in the face by the respondent, knocked unconscious and suffered a laceration to the right, lower eye lid/cheek junction and a fracture of the right medial orbital walls and floor. The orbital floor fracture was repaired by an operation. The complainant was still suffering from double vision a year after the offence.

[24]

[18] In the course of his reasons, Williams JA observed, "The conduct in question called for a custodial sentence; deterrence is the most significant consideration in dealing with crime of this type ... [the] sentence of 12 months imprisonment to be served by way of intensive correction order does not reflect the criminality involved ... it is manifestly inadequate." In his Honour's view, a head sentence of two years imprisonment was appropriate and the early plea of guilty, clear remorse, previous good character and the respondent's relatively young age "would ordinarily have resulted in such a head sentence being suspended after serving a short period in actual custody." But having regard to the fact that the respondent had already satisfactorily completed two months of the intensive correction order and the appeal being by the Attorney-General, his Honour concluded that it would be inappropriate to require the respondent to spend a short period in actual custody.

[25]

[19] In R v Tupou, the 25 year old respondent's sentence of three years suspended after nine months for an operational period of three years imposed after a plea of guilty to the offence of unlawfully doing grievous bodily harm, was varied by providing for suspension after 15 months. The respondent was involved in an altercation with the much smaller complainant, who was suffering from cerebral palsy, at a taxi rank at night. He punched the complainant, knocking him to the ground and punched him again when on the ground. His friends pulled him away and they ran off. The complainant suffered a depressed fracture of his right cheek, a fractured left cheek, a broken nose, a fractured jaw and loosening of three teeth. He was off work for three months, lost self-confidence and redeveloped a stutter. He changed work, resulting in a substantial loss of income and at the time of sentencing, was still suffering from numbness in one cheek and some lack of confidence. He needed further dental treatment. The respondent had convictions for behaving in a disorderly manner, obstructing a police officer and committing a public nuisance. He committed the subject offence when subject to a good behaviour bond. In his reasons, de Jersey CJ made reference to: there being no weapon, the spontaneity of the attack, the early plea of guilty and the relatively young age of the respondent and the need for rehabilitation of young offenders.

[26]

[20] His Honour was of the view that taking into account the plea of guilty, a sentence of three to four years was appropriate. He stated that he wished to "make it clear that the suspension after fifteen months, leaving the term at three years, is intended to reflect the moderate approach appropriate to the disposition of an appeal by the Attorney-General."

[27]

[21] The applicant in R v Verheyen was sentenced after a plea of guilty to three years imprisonment with a parole release date fixed after 12 months for an offence of causing grievous bodily harm. The application for leave to appeal was refused. The applicant was 24 years of age. He had previous recent convictions for criminal offences but none for offences of violence. Attracted by an audible disturbance the complainant, a motel manager, went to the room occupied by the applicant and a female friend. The complainant, who offered no provocation, was struck by the applicant on the back of the head with a large three-quarter full plastic soft drink bottle and knocked to the ground. He was then punched by the applicant three times in the face.

[28]

[22] R v Casey and R v Kitching do not support the proposition that the difference in sentences imposed on principal offenders and those held criminally liable pursuant to s 7(1) of the Criminal Code "is ordinarily small". Whether such an observation can be sustained would require statistical analysis but little, if anything, would be achieved by the exercise. Sentences imposed on co-offenders must be "determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality".[12]

[29]

[23] In support of his submissions, senior counsel for the appellant relied on the following passage from the reasons of Gibbs CJ in Lowe v The Queen:[13]

[30]

"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."

[31]

[24] There was, however, a significant difference in the brothers' offending conduct arising from their respective roles. Patrick Swayn carried out the attack and therefore had control over the degree of force used. In my view, on the evidence available to the sentencing judge, the extent of his culpability was greater than that of the respondent. His criminal history was significantly more extensive than the respondent's. He was imprisoned for five years on 24 February 1998 for an offence for which he was charged with the respondent. The respondent was imprisoned for only six months. That was the only term of imprisonment served by the respondent, whereas Patrick Swayn was imprisoned on 4 February 2002 for nine months for assaults occasioning bodily harm. Moreover, he had further convictions for common assault in 2004 and the subject offence was committed during the term of an intensive correction order. Patrick Swayn was also four years older than the respondent. This combination of factors shows that the sentencing judge was correct in treating the respondent substantially more leniently than his brother. That conclusion, however, does not answer the question of whether the respondent's sentence was manifestly inadequate.

[32]

[25] In my view the authorities and, in particular, Verheyen and Tupou, show that a sentence imposed for an offence such as that committed by the respondent should normally include a term of actual custody unless there are particular circumstances which militate against that result. The applicant was unable to identify any such circumstances. The violence to and injury sustained by the complainant was substantial. The conduct was of the nature of a home invasion. It was premeditated and the respondent was in company with others. He does not have the benefit of a plea of guilty and he did have a relevant criminal history. Those matters combine to establish that the criminality of the respondent's conduct was not reflected in his sentence: it was manifestly inadequate.

[33]

[26] I do not accept, for the reasons advanced in paragraph [24] above, that the sentence imposed on the respondent gives "rise to the appearance of injustice" because of its leniency in comparison with Patrick Swayn's sentence. But if the respondent's sentence is to be increased it is necessary, having regard to the parity principle, to take into account the early suspension of Patrick Swayn's sentence. Counsel for the appellant implicitly acknowledged this in his written submissions.

[34]

[27] The respondent's counsel also relied on Fielder's sentence for grievous bodily harm of two years suspended after six months. Although Fielder did not join in the assault, he was instrumental in causing it. His criminal history, including as it did two rapes, was substantially worse than the respondent's and he was a much older man. However, he did plead guilty and give evidence against the respondent and his brother. Because of differences between his circumstances and those of the respondent the sentences imposed on Fielder are of limited relevance to the sentences of the respondent. I do not overlook the point made by counsel for the respondent that the primary judge, having presided over the trial, was " ... uniquely well placed ... to exercise a discretion".[14] However there was nothing in the sentencing remarks or in the matters adverted to in the respondent's submissions which suggested that the advantage enjoyed by the sentencing judge in this case would make it inappropriate for this Court to form its own view of the factual matters relevant to sentence, whilst not disregarding the views of the sentencing judge reflected in the sentence imposed.

[35]

[28] An appeal against sentence by the Attorney-General "has long been accepted ... as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed."[15] An appellate court is thus often reluctant, where the offender did not receive a custodial sentence or is not in custody at the time of the appeal, to impose a custodial sentence, particularly for a short period.[16] In my view, however, although the respondent will be required to spend only a relatively short period in actual custody, a lesser sentence would not adequately reflect the gravity of the respondent's offending conduct, his criminal history, and the need for both personal and public deterrence.

[36]

[29] Applying the principles applicable when an appeal against sentence by the Attorney-General is allowed,[17] having regard to the fact that the respondent was released on parole and taking the parity principle into account, I would order that: the appeal be allowed; the sentence of eight months imprisonment wholly suspended be set aside and that there be substituted for it a sentence of fifteen months imprisonment suspended after four months with an operational period of two years; and that a warrant issue for the arrest of the respondent, such warrant to lie in the registry for seven days.

[37]

[30] FRASER JA: I agree with the reasons of Muir JA and with the orders he proposes.

[38]

[1] [2003] QCA 152 at 8 - 9.

[39]

[2] [2003] QCA 539 at 6.

[40]

[3] R v Chong; ex parte A-G (Qld) [2008] QCA 22; (2008) 181 A Crim R 200 and R v D'Arrigio; ex parte A-G (Qld) [2004] QCA 399 at 5 - 6.

[41]

[4] R v Verheyen [2008] QCA 150 and R v Tupou; ex parte A-G (Qld) [2005] QCA 179 support the sentence.

[42]

[5] [1999] QCA 169.

[43]

[6] [1999] QCA 169 at [5].

[44]

[7] [2008] QCA 150.

[45]

[8] [2005] QCA 179.

[46]

[9] [2001] QCA 351.

[47]

[10] [2003] QCA 137; (2003) 138 A Crim R 273.

[48]

[11] [1994] QCA 523; [1995] 2 Qd R 186.

[49]

[12] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 302 per Dawson and Gaudron JJ.

[50]

[13] [1984] HCA 46; (1984) 154 CLR 606 at 609.

[51]

[14] R v Melano, ex parte Attorney-General (Qld) [1994] QCA 523; [1995] 2 Qd R 186 at 190.

[52]

[15] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299.

[53]

[16] See e.g., R v Bazley; ex parte Attorney-General of Queensland [1997] QCA 235 and R v Casagrande [2009] QCA 1.

[54]

[17] R v Melano, ex parte Attorney-General (Qld) [1994] QCA 523; [1995] 2 Qd R 186 at 190; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 341; R v Bazley; ex parte Attorney-General of Queensland [1997] QCA 235; R v Kirby; ex parte A-G (Qld) [2009] QCA 35; R v O'Grady; ex parte A-G (Qld) [2003] QCA 137; (2003) 138 A Crim R 273.

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Judgment (54 paragraphs)

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