R v Toohey [2001] QCA 149

Court of Appeal (Qld)|2001-04-19|Before: Pherson JA, Thomas JA, Holmes J

The applicant was 24 years old at the date of the wounding. His counsel submitted that he had reacted, obviously excessively, to what he perceived was the complainant's intention to manhandle him as he had done on previous occasions. He lived with his sister and her family and had three days per week work on a community employment program. He has a history of problems with alcohol. His criminal history dates back to 1994, but until he was sentenced for this offence he had always been dealt with in the Magistrates Court. A number of the entries on his record are for Vagrants, Gaming and Other Offences Act charges probably consistent with his alcohol use.

The more serious entries are for unlawful use of a motor vehicle in 1997; a breaking and entering charge in respect of which he was fined in August 1998; and entering with intent and breaking and entering charges dealt with in October 1998, for which he was given probation. He breached that order and was sentenced to six months' imprisonment on

The Crown had provided the learned sentencing Judge with a schedule of decisions on appeal and referred in particular to three cases, Queen v Robertson, CA number 103 of 1989, Queen v Bouma, CA number 261 of 1988, and Queen v Hallett, CA number 100 of 1997, each of which involved a sentence of three years' imprisonment. They were identified by the Crown Prosecutor as being the most relevant on the schedule.

Robertson involved a conviction after a trial. The applicant had deliberately struck the complainant in the face with a beer jug with sufficient force for it to break on impact. The complainant sustained a broken nose and facial lacerations. The sentencing Judge referred to him as "scarred for life" with a "fairly serious cosmetic disfigurement". The applicant had a criminal history which included an offence of attempted rape, although there had been no offences of violence within the 12 years preceding the wounding. Justice Williams, who gave the leading judgment, while not interfering with the sentence of three years referred to it as "towards the top of the range".

Bouma again concerned an applicant convicted after a trial. He had dragged the complainant, who owed him money, into a kitchen and then hit him, while he was either kneeling or seated, over the head with an empty bottle which shattered on impact. He had further used what was left of it to cause lacerations to the complainant who sustained a number of puncture wounds to the face, neck and upper chest. The Chief Justice, with whom the other members of the Court agreed, said that "in ordinary circumstances [the sentence] could reasonably be deemed too high and calling for some interference". However, he was dissuaded by the applicant's substantial and serious criminal history from interfering.

Hallett similarly involved an applicant who went to trial. The case involved a bar room struggle between the applicant and the complainant. The applicant, who was lying underneath the complainant, thrust a broken glass into the complainant's face on a number of occasions, causing what the Court described as "quite significant wounding". The applicant had a long criminal history, including a number of violent offences. The Court referred to other decisions, including Robertson, which was described as setting the top of the range for such offences, and Melano, which entailed an Attorney's appeal against a sentence of 15 months' imprisonment suspended after three months. In the latter context it noted that 15 months "may be taken as being at the bottom of the range for offences of this kind".

I am bound to say that each of the three cases seems to me, on its facts, rather more serious than the present one involving, in each instance, a worse attack, facial injury, an absence of remorse and an offender with a worse criminal history than the applicant's. Although they were the cases specifically identified by the prosecutor at sentence, it is clear that they are of use only as representing the higher end of the range for woundings of this type.

Before us Mr Moynihan for the applicant referred to five decisions, Queen v Hays, ex parte Attorney-General (1999) QCA 443, Queen v Vickery, ex parte Attorney-General, CA number 62 of 1992, Queen v Melano, ex parte Attorney-General, [1994] QCA 523; (1995) 2 Queensland Reports 186, Queen v Darwin,

CA number 98 of 1996 and Queen v Anders, CA number 571 of 1996. All but one, Darwin, involved an Attorney-General's appeal.

In Hays the Court substituted a sentence of 18 months wholly suspended for one of community service in the case of a 24-year-old respondent who had struck another young man on the chin with a glass after an exchange of heated words at a hotel. The complainant was left with "noticeable but not disfiguring" scarring. It was noted that the respondent was young, of previous good character and had pleaded guilty; all factors which went a considerable way in mitigation.

However, the Court made it clear that even in the case of a young person who had not previously been gaoled and whose conduct was unpremeditated, conduct of this type would generally warrant a sentence of imprisonment.

In Vickery, the respondent who was 40 years of age had broken a glass and used it to strike the complainant, who had a history of harassment of the respondent and his companion but, on this occasion, had done no more than to approach and ask the companion to dance. The complainant suffered severe facial injuries. At first instance, the respondent was ordered to perform 200 hours of community service which he had performed by the time of the appeal. Nonetheless, the Court substituted a sentence of 12 months' imprisonment which was reduced to allow for community service already performed. It observed that a sentence of at least 18 months' imprisonment was warranted.

In Queen v Melano, to which I have already referred, the respondent was involved in an altercation with the complainant in a bar. The complainant invited him outside to settle the matter but while they were still moving towards the door each pushed the other. The respondent then struck the complainant on the right side of his head with a beer glass which shattered and caused him serious lacerations which left him with unsightly scarring.

The respondent, who was 26 years old, had a good work history and only a minor criminal history. He was sentenced after conviction by a jury to 18 months' imprisonment suspended after three months. The Court of Appeal, on the attorney's appeal, concluded that the sentence although "close to the border line" was not outside the range of a proper sentencing discretion.

Anders was an Attorney-General's appeal against a sentence of one year to be served by way of intensive correction. The respondent was a 22 year old with a number of previous convictions for assault occasioning bodily harm and one charge of unlawfully doing grievous bodily harm, although he had not previously been imprisoned. The wounding occurred in a night-club where he had been pressing his intentions in an unpleasant way on two women who were in the company of the male complainant. Unprovoked, he thrust an empty glass into the complainant's cheek so that it smashed on impact causing him facial lacerations and scarring. Immediately after the assault the respondent, who appeared intoxicated, continued to behave in an abusive and aggressive way. The Court of Appeal substituted a sentence of imprisonment for 18 months.

Darwin was a prisoner's appeal. The applicant had been at a 21st birthday party where he had struck the complainant on the head with a beer glass and then twisted the glass into his head causing a number of scalp lacerations. Although he had a criminal history the applicant had no record for violence. He was sentenced to 18 months' imprisonment with are commendation for parole after six months, a sentence which the Court did not disturb. Justice Williams, with whom the other members of the Court agreed, observed that a head sentence of 18 months was well within the range for an offence of this type.

Having reviewed the authorities I have come to the conclusion that a sentence of imprisonment of two years must be considered relatively severe in a case such as this, in which the injury was not a disfiguring facial injury (as is often the case.) That of itself would not dispose me to interfere. However I consider that the learned sentencing Judge erred in failing to give sufficient weight to mitigating factors so as to reduce the severity of the head sentence.

In particular, he failed to give proper weight to the applicant's youth, his lack of any history of violence and his remorse as exhibited by the plea of guilty. Those features should, in my view, have been recognised by a recommendation of early parole or partial suspension of the sentence.

Having reached the conclusion that the sentence, as it is, should not stand, I would give leave to appeal against sentence, allow the appeal, quash the sentence of two years' imprisonment imposed below, and substitute for it a sentence of imprisonment of 18 months to be suspended after six months with an operational period of three years.

McPHERSON JA: I think the sentence, in this case, might be slightly higher than I would have imposed, but after reflecting about it I do not think it can, or should be, altered in this Court. I agree with the reasons which have been given by Justice Thomas. Specifically, I would add that my experience of sentences in matters of this kind accords with his.

The application for leave to appeal against sentence should, in my view, be dismissed.

The order of the Court in view of what has been said is that the application is dismissed.

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