R v Tientjes; ex parte Attorney-General of Queensland [1999] QCA 480

Court of Appeal (Qld)|1999-11-16|Before: McMurdo P, Davies and McPherson JJA

Director of Public Prosecutions (Queensland) for appellant

[2] The respondent was 36 years of age at the time of commission of this offence, having been born on 21 February 1961. He had only one relevant prior conviction, for assault occasioning bodily harm, for which he had been fined on 1 March 1992.

[3] The deceased was a 27 year old man who was epileptic. Prior to the events leading up to his death he and the respondent were friendly. They had apparently known one another for some time. On the night before his death he and the respondent had been drinking at various places in Cairns. They left a bar together about 5.45 am on 29 October. At about 6.00 am the deceased was found lying unconscious on the footpath outside the bar. He had obvious facial injuries.

[4] On post mortem examination the deceased's injuries were found to be extensive. He had an abrasion or graze six by seven centimetres on the left knee, a two centimetre bruise across the right upper arm, an area of bruising seven by six centimetres at the front of the left upper arm, two parallel abrasions six or seven centimetres long below the left nipple, multiple bruises over the front right chest, a purple bruise a few centimetres across in the middle of his right chest, a bruise two centimetres across over the right eyebrow, a number of what appeared to be bruises and abrasions covering a total area of seven by two centimetres on both cheeks and some abrasions and bruising on the left side of the forehead. Some of these abrasions to the face but no other of the injuries were from an earlier event. He died from a subdural haematoma consistent with a kick to his head or with his head striking the pavement but not, apparently, with a punch to the head.

[5] The respondent did not give evidence at his trial but in his record of interview with the police, at about 3.00 pm on 29 October, he told them that, without warning and for no apparent reason, as they were walking along the footpath, the deceased struck him quite forcibly on the side of his head. He retaliated, he said, with one blow with his left hand. His action, as so described, is inconsistent with the deceased's extensive injuries and with earlier versions he had given two other people. It is also inconsistent with the evidence of Ms Jeffs who had been sleeping in a residence adjacent to where the deceased died.

[6] Between 8.00 and 8.30 am on 29 October the respondent spoke to Ms Hanrahan. He seemed intoxicated. He said:**

"Mat won't be on the bus today. Matt got a bit cheeky last night. We had a fight and I put him in his place.

Me and the boys were drinking in town. I tried to get Matt from the Rainbow, he was too drunk and he wanted to fight. I'm not going to take that from anyone, I can take anyone out."

Ms Hanrahan added that he seemed to be boasting about it, being smart.

[7] Mr Kerr spoke to the respondent at about 8.00 am on that day. The respondent said:

"Matthew king hit me. We were both drunk and I just responded to him hitting me and I laid into him."

**[8] Ms Jeffs, on the night in question was staying next door to the Rainbow Motor Inn outside which the offence occurred. She was awoken at about 6.00 am by a male voice yelling loudly and aggressively. She went onto her balcony. The male voice was saying repeatedly "get up, get up off the ground". She then heard a series of thumps, about half a dozen, which she described as dense thuds like someone hitting another person. She then saw a person, presumably the respondent, walking away from the scene still calling out.

[9] It may be accepted in the respondent's favour that his attack upon the deceased was in response to a single blow from the deceased. However it cannot be accepted, and the learned sentencing judge did not accept that his response was merely a single blow. He plainly responded with a number of punches and, as the learned sentencing judge found, it was a violent response which continued even after the deceased was on the ground. His Honour thought, and in our view was justified in so thinking, that the intensity of the respondent's reaction and its prolonged nature was such as to cause one to be quite chilled.

[10] It may be accepted that, at the time of this incident, both the respondent and the deceased were drunk. But that does not excuse the respondent's conduct and in our view in no way mitigates the penalty.

[11] The respondent had a good work history and, as already mentioned, his only relevant offence before this was in 1992.

[12] The learned sentencing judge took all relevant matters into account including a very moving victim impact statement from the deceased's parents. The question in the end is whether on the facts which we have stated a sentence of four and half years imprisonment was so low as to require interference by this Court. In our view it was. The appellant drew our attention to a number of comparative sentences as did the respondent. It is necessary however to refer to only one of these to illustrate the conclusion that the sentence imposed here was manifestly inadequate. It is R v Bojovic CA No 4 of 1999, 8 June 1999; [1999] QCA 206, in which a sentence of 10 years imprisonment was reduced on appeal to this Court to eight years. Unfortunately this decision was not cited to the learned sentencing judge. The facts in that case bear considerable similarity to those in this.

[13] In that case, as in this, the deceased was the attacker. The applicant overreacted in the course of self-defence. However it must be said that it appears that the blows delivered by the applicant in that case were either more frequent or with greater force than in this, causing fractures of the bones at the root of the nose and in the upper centre half of the forehead Very considerable force must have been used. The applicant's actions were, however, followed by immediate concern for the victim and attempts to assist him. Nor was there any evidence to suggest in that case, unlike this, that the applicant went on with his attack after the other man had become helpless. There the applicant had a more serious criminal history for assault, two for assault and two for assault occasioning bodily harm but the last of these had been in 1989.

[14] Two other relevant matters in that case should be mentioned. One is that the applicant, like the applicant here, had a good work history. The other is that unlike the apparent position here the victim there was obviously a drunken man but there was no evidence that the applicant was also drunk.

[15] Before imposing the sentence which it did in that case this Court embarked on an extensive review of comparable sentences. That is what makes it unnecessary for this Court to undertake a more extensive review of the cases than we have done. A direct comparison with Bojovic, in our view, leads to a conclusion that this case is slightly less serious than that. The severity of the attack appears to have been greater in that case than this and the applicant's history of previous violence, although older, is more serious than in this.

[16] In the court below counsel for the appellant contended for a sentence of seven to eight years imprisonment. In our view an appropriate sentence would be one at the lower end of that range, that is a sentence of seven years imprisonment.

[17] In Bojovic this Court did not make a declaration under s 161B(3)(b) of the Penalties and Sentences Act 1992. Similar considerations require that no such declaration be made in this case.

[18] We would therefore allow the appeal, set aside the sentence below and in lieu impose a sentence of seven years imprisonment.**

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