_R v Tapiolas_

[1]

Groves & Clark solicitors for the applicant/appellant

[2]

Director of Public Prosecutions (Queensland) for the respondent

[3]

[1] HOLMES & MUIR JJA: The applicant seeks leave to appeal against a sentence of 18 months imprisonment, with a parole release date fixed after four months, imposed for one count of grievous bodily harm. In addition to contending that the sentence is manifestly excessive, he argues that the learned sentencing judge made certain errors in fact-finding on uncontradicted evidence. Those errors were: finding that the applicant was not acting in self-defence; failing to find that he was acting in defence of another; or alternatively, failing to warn counsel that he did not intend to sentence on the factual basis put to him.

[4]

[2] The Crown's submissions on sentence as to how the offence occurred were relatively brief. The Crown prosecutor informed the Court that, after a rugby union game, the complainant had been involved in a scuffle which had moved from a hotel out onto the footpath. Two of the men involved walked away towards another hotel but were followed by the complainant and his friend; the complainant engaged one of the two in a fight in the street. He then turned back towards the first hotel. His last recollection was of seeing another man hit one of his friends, and of calling out to that man; he woke up in hospital. In between, the prosecutor said, the applicant had delivered a 'king-hit' to the complainant's face, causing him to fall to the ground and to sustain a number of facial fractures.

[5]

[3] Counsel for the applicant provided some further detail of the day's events by reading passages from witness statements into the record, the effect of which was as follows. The complainant himself had said that he was angry with the two other men he had followed. A man called Hartwell struck the complainant's companion and ran off. The complainant shouted at Hartwell, 'Come here, you're fucked' and, when Hartwell did not oblige, chased him. A security manager at the first hotel described seeing the complainant being involved in fights with others and then running after Hartwell. Other witnesses similarly described the complainant pursuing Hartwell, the complainant looking 'very angry' and 'in a rage'. A crowd controller at the second hotel, to which Hartwell was running, said that Hartwell appeared to be terrified. Another man named Frew described seeing the complainant running along the road towards the second hotel and then saw, as he put it, the complainant:**

[6]

'change his direction towards a person who was standing on the roadway near the centre car park. As [the complainant] approached this person, it appeared to me that he was intending to hit this person who did not move and struck out with one punch while causing [the complainant] to fall face first on to the bitumen'.

[7]

**Mr Frew then realised that the person who had hit the complainant was the applicant.

[8]

[4] Mr Frew's version of events was clearly the most favourable to the applicant. However, counsel for the applicant acknowledged that there was a slightly less favourable version in some of the witness statements, which was that the complainant was running after Hartwell and the applicant had 'stepped slightly to one side into the path of the complainant'. The applicant's instructions, counsel said, were that he thought the complainant was running towards him. Counsel maintained that the applicant was entitled to defend himself, but explained that he pleaded guilty in acknowledgment that his response was disproportionate. He invited the learned sentencing judge to sentence on the basis that the applicant was concerned both for Hartwell, who was a friend, and for his own safety. At another point in his submissions, he put matters this way:**

[9]

'it's almost incontrovertible that he was either defending himself or at the very least he was defending Mr Hartwell or he was attempting to intervene to stop the fight continuing'.

[10]

**The Crown prosecutor at sentence did not challenge any of the matters as put by counsel for the applicant.

[11]

[5] It was necessary for the sentencing judge to make findings about certain matters, particularly, in light of the defence submissions, the applicant's conduct and intentions. He found that although the applicant had punched the complainant heavily, the complainant's own momentum contributed to his falling hard to the ground and hitting his face. It was not possible to say whether the punch or the fall had caused his injuries. His Honour found also that the complainant had been involved in 'some significant violence' towards others, 'having left himself in a position where he might be injured'. He continued, addressing himself to the applicant,**

[12]

'To some extent the same could be said for you. However, I do not accept that you were acting in some way to protect yourself. In my view the facts submitted indicated that you punched the complainant whilst his attention was directed towards another person who was running away'.

[13]

'Voluntary participation in street violence often leads to serious consequences and those consequences at the end of the day have to be faced by those who were involved. In my view this was a case of gratuitous street violence which the community rightly condemns.'

[14]

[6] Counsel for the applicant submitted that given the absence of any challenge to the material put before the learned sentencing judge, there were two possible views of the events: the first, that the complainant had run directly at the applicant; the second, that the complainant had run in the applicant's direction and that the applicant had moved a step into his path. On the second, less favourable scenario, it was still open to say that the applicant was acting in self-defence, or at least in the interests of saving Mr Hartwell from harm. The learned judge, however, had dismissed the contention that the applicant was seeking to protect himself without making any finding as to his intention, or more particularly, as to whether the applicant was seeking to assist Mr Hartwell. If indeed he had intended to reject the latter proposition in the absence of any counter-argument from the Crown, he should have advised counsel of that intention and given the applicant the opportunity to call evidence on the point.

[15]

[7] Counsel for the respondent Crown argued that the applicant's counsel at sentence had really put three alternatives - that the applicant was defending himself; that he was defending Mr Hartwell; or that he was attempting to stop the fight. The learned judge's findings rejected the first and were not inconsistent with the others. His Honour's reference to 'gratuitous street violence' was proper if he took the view that, notwithstanding that the applicant was motivated to protect Mr Hartwell, the force used was excessive, and in that sense gratuitous. The moderate sentence imposed - 18 months with release after four - suggested that he had indeed acted on that view.**

[16]

[8] Counsel for the defence had clearly identified evidence on which he relied, without any suggestion from the Crown that the Court should not act on it. He had invited the learned sentencing judge to draw the conclusion that the applicant was acting in a combination of self-defence and defence of Mr Hartwell, or at least the latter. It was, accordingly, incumbent on his Honour to make findings in respect of those matters and to identify what facts he found and the inferences he drew from them.

[17]

[9] We do not think that the learned judge could properly find that 'the facts ... indicated that [the applicant] punched the complainant whilst his attention was directed towards another person who was running away'. The evidence seems to have been that the complainant pursued Hartwell, but immediately before he was punched was running either at, or very near, to the applicant. One possibility was that he was intending to assault the applicant; even if that were not so, it does not follow that his attention at that point was still entirely focused on Hartwell. More importantly, his Honour did not make any finding as to whether the applicant was acting to protect Hartwell, an issue whose resolution was vital in arriving at an appropriate sentence. Notwithstanding the point made by counsel for the Crown here, we do not think one can infer retrospectively from the sentence actually imposed that his Honour must have taken a favourable view of the applicant's intentions.

[18]

[10] The learned sentencing judge failed to make a necessary finding, and in that regard has erred in the exercise of his sentencing discretion. It is necessary, therefore, that this Court set aside the sentence and re-exercise the sentencing discretion. It is in as good a position as the sentencing judge to make findings on the unchallenged witness accounts put below. On that evidence, we are satisfied, on the balance of probabilities, that the complainant, while in general pursuit of Hartwell, ran in the direction of, and very close to, the applicant who moved slightly into his path and punched him. The rational inference from those facts is that the applicant was acting primarily to protect Hartwell, but used excessive force to do so.

[19]

[11] The assault occurred on 23 April 2006 and was not dealt with until December 2007. The complainant sustained a number of facial fractures: to a nasal bone, to an orbital wall, to the right maxilla and to the left zygomatic arch. He required surgery and his jaw was wired for a number of weeks. In a victim impact statement made in July 2007, the complainant said that he continued to suffer from bad headaches, facial pain and dizzy spells.

[20]

[12] The applicant was 19 years old at the time of the offence. He had completed high school and had worked for three years with a company which supplied irrigation equipment. His employer gave him a good reference, as did a previous employer and a former teacher and rugby coach. He had, with the assistance of his family, been able to offer $6,000 in compensation to the complainant, the payment of which was subsequently the subject of an order by the Court. The applicant had no criminal history before this offence, but he was convicted of an assault occasioning bodily harm committed 10 months after it, which involved his punching a security guard at a hotel. He was fined $1,500 and ordered to pay a similar amount in compensation in respect of that offence.

[21]

[13] There was no real argument as to the appropriateness of a head sentence of 18 months imprisonment, but rather as to whether any part of that sentence should be served in custody. Counsel for the applicant had at first instance submitted that the head sentence should be wholly suspended, or if the sentencing judge rejected that submission, suspended after a short period. Here he maintained the submission that a sentence not involving actual imprisonment was appropriate. Counsel for the Crown on the appeal conceded that a wholly suspended sentence was open, but contended that the Court ought take the view that the sentence actually imposed, of 18 months with parole release after four months, was appropriate. That view of the available range finds support in comparable cases: see R v GB & LB[1], R v Cuff[2], R v O'Grady; ex parte A-G (Qld)[3] and R v Craske[4].

[22]

[14] Certainly, for an offence of grievous bodily harm with injuries of these proportions, a sentence involving actual custody might ordinarily be expected; but the features of this case, other than those injuries, suggest otherwise. No weapon was used; it was a case of a single blow, delivered spontaneously. It was implicit in the plea of guilty that the punch was likely to cause grievous bodily harm, but no intent to cause grievous bodily harm was suggested by the evidence or charged. Given the intention of protecting Hartwell, the force used should be regarded as excessive rather than gratuitous. While the applicant's subsequent conviction for assault occasioning bodily harm casts some shadow over his rehabilitation, his youth, his good work record, his favourable references and his efforts at compensation are strong factors in mitigation.

[23]

[15] Taking the unusual circumstances of the case in combination with those mitigating factors, we consider that the appropriate sentence is one which enables the applicant to stay in the community, while providing supervision and a strong disincentive to re-offend. We would make the following orders:

[24]

2. Allow the appeal and set aside the sentence imposed below.

[25]

3. Substitute a sentence of 18 months imprisonment with a parole release date fixed at 16 May 2008.

[26]

4. Declare that the applicant has served four days imprisonment under the sentence from 11 December 2007 to 14 December 2007.

[27]

[16] CHESTERMAN J: On 7 November 2007 at the District Court in Townsville the applicant pleaded guilty to a charge of unlawfully causing grievous bodily harm to one Aaron Cursio. On 11 December 2007 he was sentenced to 18 months' imprisonment with a parole release date set four months thence, 10 April 2008. The applicant was also ordered to pay Cursio compensation in the sum of $6,000.

[28]

[17] The offence occurred on 23 April 2006 at Ayr. On that day a rugby football match had been played in the town and supporters of both teams congregated in two adjacent hotels in the town. After the consumption of alcohol the crowd of supporters, or some members of it, became obstreperous and violent. There was what was described as scuffling and arguments between rival supporters or rival factions of supporters.

[29]

[18] The Crown case as outlined by the prosecutor was that the complainant was drinking in the Queens Hotel when he was approached by another man, whose name appears to have been Norris, who started an argument. Norris was joined by a friend, Frew, as was the complainant and the group of four engaged in what was described as a scuffle which spilled out onto the footpath. It was said to end quickly and Norris and Frew walked towards the other hotel, the Commercial. The complainant and his friend followed and the scuffle was renewed, though the instigator on this occasion was not identified. This altercation did not last long either and Cursio left it and walked back towards the Queens Hotel. On his way he saw a man called Hartwell hit a friend of his from behind. The complainant took exception to the attack and shouted a threat to Hartwell. He remembers nothing else until he regained consciousness in hospital.

[30]

[19] According to the prosecutor what led to Cursio's hospitalisation was that he was 'king hit' by the applicant as he chased Hartwell, and fell to the roadway. His injuries were quite severe though it is not clear that all of them were caused by the blow. Some may have been caused by Cursio's face impacting on the roadway. He seems to have fallen with considerable force.

[31]

[20] Cursio suffered extensive fractures to his facial bones. His nose was broken; diverted to the right and displaced backwards. An orbital bone, the bone beneath the eye socket, was fractured as was the right upper jaw bone and left zygomatic arch, a bony structure above the lower jaw. He underwent surgery to effect a facial reconstruction and was in hospital for four days. He required pain killers for eight weeks and experienced intense pain. 18 months later he was still suffering recurring severe headaches and irregular dizzy spells.

[32]

[21] He was off work for seven weeks and lost income of almost $30,000. He appears to have been a self-employed concrete contractor. He had to borrow money from his parents to pay medical expenses which amounted to more than $8,000. He has given up playing football because of a fear of suffering a further facial injury.

[33]

[22] The applicant's counsel sought to put a slightly different complexion on the facts. By reference to parts of statements obtained from witnesses he submitted that Cursio had been involved in 'a reasonably large number of fights in ... between the two hotels'. One fight involved punching Norris who was in the company of Frew. It was Frew and Norris who left the initial scuffle and walked towards the Commercial Hotel. The complainant's own statement, part of which was read to the Court, stated that after Hartwell had hit Cursio's friend and Cursio had shouted at him, he started to run back towards the Commercial Hotel and Cursio gave chase.

[34]

[23] The security manager at the Queens Hotel describes Cursio as being involved in a number of fights, punching some people and shouting at others. One of the people with whom he fought was Frew. After one scuffle, or fight, he saw Hartwell run off and Cursio chase him. Another witness, Eathorne also saw the complainant running after Hartwell. Another witness employed as a crowd controller at the Commercial Hotel said that he saw Hartwell 'running directly towards the Commercial Hotel ... and he appeared to be terrified ...'. Having looked away for a moment he saw Cursio 'pursuing ... Hartwell ... he appeared to be in a rage.'

[35]

[24] The applicant's counsel broke his narrative to observe to the learned judge that the chase 'was interrupted by my client throwing a punch at the complainant.'

[36]

[25] Frew stated that he saw Cursio 'running along the roadway ... towards the (Commercial) tavern.' His observations were not exact because he 'was pretty flustered at the time.' He did say, however, that he saw Cursio 'change his direction towards the person who was standing on the roadway ... . As (he) approached this person it appeared ... that he was intending to hit this person who did not move and struck out with one punch ... causing (Cursio) to fall face-first onto the bitumen.'

[37]

[26] The essence of the submissions advanced on behalf of the applicant to the sentencing judge was that but for the severity of the injuries caused to Cursio the applicant would have had a good arguable defence pursuant to s 271 or s 273 of the Criminal Code. This submission, which was advanced at least twice, involves a misconception of the sections. It is not the severity of the injuries inflicted by one acting in self defence, or in aid of someone else acting in self defence, which makes the sections inapplicable, but the nature of the force used. The sections are not applicable where the force used was intended to cause grievous bodily or was likely to do so. The concession made on the applicant's behalf that the defence was not available must therefore be an admission that the force used by the applicant toward the complainant was likely to cause grievous bodily harm, as it did.

[38]

[27] Nevertheless the sentencing judge was asked to approach the imposition of a penalty on the basis that the applicant was acting either to defend himself from Cursio, or to protect Hartwell from Cursio, but had over-reacted and used excessive force in doing so. The submission was that the applicant's culpability was reduced because there was a justification for the use of some force, though not that in fact used.

[39]

[28] In answer to a comment from the sentencing judge that the complainant did not appear to have been a threat to the applicant when the latter punched Cursio, the applicant's counsel referred to Frew's statement which I have set out and then said, with commendable frankness, that the weight of the evidence was that, 'despite Frew', the applicant had stepped slightly to one side into Cursio's path to punch him. Counsel had earlier summarised the effect of the statements by saying that what Cursio 'was doing at the time (the applicant) punched him ... was chasing ... Hartwell.'

[40]

[29] Towards the end of the recitation of facts the sentencing judge observed that 'the fact that the complainant was behaving in a violent way towards others' did not justify his being struck by the applicant in the way described. The applicant's counsel's response was that 'the applicant and another witness say they believed the complainant was heading towards (the applicant). Effectively all of the other witnesses say that the complainant was chasing Hartwell ... a friend of (the applicant).'

[41]

[30] By way of a peroration the applicant's counsel said:**

[42]

'... It's almost incontrovertible that he was either defending himself or at the very least he was defending Mr Hartwell or he was attempting to intervene to stop the fight continuing.'

[43]

**[31] In relation to sentence the applicant's counsel submitted that the appropriate head sentence was 'about' two years imprisonment which should be wholly suspended or suspended after the applicant had served 'a very short ... portion' of the sentence.

[44]

[32] In his sentencing reasons the learned judge remarked:**

[45]

'The complainant appears to have been involved in some significant violence himself directed towards others. He clearly left himself in a position where he might come into contact with other persons and risk injury ... . To some extent the same could be said for you. However, I do not accept that you were acting in some way to protect yourself. In my view the facts submitted indicated that you punched the complainant whilst his attention was directed towards another person who was running away. ...

[46]

Voluntary participation in street violence often leads to serious consequences and those consequences at the end of the day have to be faced by those who were involved. In my view this was a case of gratuitous street violence which the community rightly condemns.

[47]

The expectation of the community is that hotels and public streets outside them should be free of violence. ... Sentencing ... in cases of this nature relies heavily upon sending a message to others in the community that such conduct will not be tolerated and the deterrence aspect of sentencing is very important.'

[48]

**[33] The applicant's real complaint is that the learned judge proceeded to sentence on the basis that the applicant had gratuitously struck Cursio, which had not been put to him in argument, and was contrary to the factual position advanced by the applicant's counsel and tacitly accepted by the Crown. The submission was that the case put before the judge was that the applicant had acted in self defence, but excessively. The complaint goes on that the learned judge did not indicate that he intended to reject this 'common view' of the facts so as to give the applicant the opportunity to call evidence to persuade his Honour of its correctness. Instead, it is submitted, the sentencing judge proceeded on the basis that the applicant had acted neither in self defence nor defence of Hartwell but had engaged in unjustified (gratuitous) violence.

[49]

[34] There are two difficulties in the path of the applicant's submissions. The first is that it is wrong to say that it was common ground at the sentencing that the applicant should be punished on the basis that he acted on self defence, though excessively. The applicant's counsel expressly put at least two possibilities forward: one was that the applicant was acting excessively in self defence; two that he was acting in aid of Hartwell who was acting in self defence. Mr Griffiths who appeared for the applicant was commendably frank in his summary of the evidence that the first alternative was the least likely. It was advanced only by the applicant himself through instructions to his counsel and Frew, who confessed to being bewildered and who had some reason for animosity against the complainant by reason of having been involved in a fight with him earlier. 'All the other witnesses' saw the complainant chasing Hartwell, and intent on that pursuit.

[50]

[35] The judge cannot be criticised rejecting an alternative which the applicant's counsel himself recognised as problematic.

[51]

[36] Nor can the learned judge be criticised for not accepting the other alternative, that the applicant was acting in aid of Hartwell, but used excessive force. Section 273 provides that:**

[52]

'In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself ... against an assault, it is lawful for any other person acting ... in the first person's aid to use a like degree of force ...'

[53]

**The 'like degree of force' is that described in s 271, such force as is not intended and is not such as is likely to cause death or grievous bodily harm. Importantly however, the use of such force is excused only when offered in self defence, and s 271 limits the use of such force to occasions 'when a person is unlawfully assaulted and has not provoked the assault.'

[54]

[37] At the critical time Hartwell had not been assaulted by the complainant and was not using force in self defence. He was running away to avoid an assault. He may or may not have been caught. Had he been caught there may or may not have been an assault. But when the applicant (as his counsel accepted he did) stepped into Cursio's path and punched him to the ground his conduct did not come within s 273.

[55]

[38] The applicant intervened to stop a pursuit which may or may not have led to an assault and which may or may not have led to an injury to one or other of the assailants. He intervened by striking, with considerable force, a running man whose attention was distracted by the pursuit of his quarry. It is accepted that the blow was of such a nature as to be likely to cause grievous bodily harm. His Honour's comments that 'voluntary participation in street violence often leads to serious consequences' and that 'this was a case of gratuitous street violence ...', were entirely accurate and justified.

[56]

[39] The second difficulty in the applicant's path is that the sentence imposed was within the range of what counsel accepted was appropriate if the judge approached the sentencing process on the basis contended for by his counsel, i.e. is a sentence of 'about two years', all or most of which should be suspended on the basis that he had acted in self defence, or in defence of another, though with excessive force. The sentence actually imposed was one of 18 months imprisonment with a parole release date fixed four months after the commencement of the sentence. It is not the sentence asked for but it is a sentence within the accepted range of severity. In this Court it was agreed by counsel for the applicant and for the Crown that the appropriate sentencing range was a term of imprisonment of 18 months wholly suspended or suspended (or a parole release date fixed) after six months had been served. The sentence imposed is within that range.

[57]

[40] I respectfully agree with the observation of the learned judge that sentencing in cases of this kind 'relies heavily upon sending a message to others in the community that (street violence) will not be tolerated and that deterrence ... is very important.'

[58]

[41] Much can be said in the applicant's favour. He is a young man, 19 at the time of the offence and 20 when sentenced. He has been well educated and has impressive family support and a good work history. It cannot, though, be said he is of unblemished character. On 26 June 2007 he was convicted of assault occasioning bodily harm, fined $1,500 and ordered to pay compensation of $1,500. The assault occurred on 5 February 2007, after the assault on Cursio, but was dealt with more promptly. That offence and conviction indicates that the applicant did not learn much from this experience. It removes any basis for confidence that he has mastered any propensity he has to violence.

[59]

[42] The applicant did not immediately co-operate with the police investigation. He declined to be interviewed and did not indicate that he would plead guilty to the charge until the second half of 2007, after a full committal hearing.

[60]

[43] Despite the factors in the applicant's favour deterrence is of paramount importance, both personal deterrence to persuade the applicant that such conduct must be avoided, and general deterrence to persuade other like-minded young men that street violence is unacceptable because of the harm that is likely to befall participants and because the streets should be safe for all citizens to go about their lawful business. The community rightly expects the Courts to play a prominent part in achieving this goal. It would, in my opinion, be inimical to the interests of society if this Court were not to endorse the approach taken by the learned judge and were to discourage other judges from regarding general deterrence as requiring in like cases the imposition of imprisonment on young men, whatever their background, who cause grievous bodily harm to others in circumstances the law does not excuse.

[61]

[44] I would refuse the application for leave to appeal.**

[62]

[63]

[64]

[65]