_R v Verheyen_

Judgment (49 paragraphs)

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Director of Public Prosecutions (Queensland) for the respondent

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**[1] FRASER JA: On 17 October 2007 the applicant was convicted on his plea of guilty of one count of causing grievous bodily harm. After a hearing to resolve contested facts relevant to sentence, on 18 October 2007 the applicant was sentenced to three years imprisonment with a parole release date of 16 October 2008 (after serving 12 months).

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[2] The applicant seeks leave to appeal against sentence on the grounds that it was manifestly excessive and that the sentencing judge erred in the findings of fact.**

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**[3] The complainant, Mr Lamont, and his wife managed a motel in Cairns. At around 4.00 am on 8 November 2005 the complainant's wife heard loud screaming and yelling from the applicant and his girlfriend, who were running inside their unit as well as around the motel and disturbing other guests. After Mrs Lamont unsuccessfully asked the pair to quieten down she telephoned police and woke her husband.

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[4] Mr and Mrs Lamont approached the unit where the screaming and crashing sounds still continued. A short time after they entered the room the applicant assaulted

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[5] Mr Lamont's evidence was that he walked into the motel unit past the defendant, who was standing near the door and offering no aggression, walked up to the applicant's girlfriend, put a hand on her shoulder and said "that's enough, we're leaving". The next thing he could recall was having fallen to the ground in the unit and being repeatedly hit in the head by the applicant.

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[6] Mrs Lamont's evidence was that after she had followed her husband into the unit she saw the applicant's girlfriend attack the applicant and saw her husband walk up to them and say "that's enough". Mrs Lamont said she was then grabbed by the applicant's girlfriend, who pulled her by the hair to the ground and bit her arm. In cross-examination, consistently with Mrs Lamont's statement to the police and her evidence at the committal, she agreed that she believed that her husband had grabbed hold of the applicant's girlfriend and tried to pull her away from

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[7] Whilst on the ground under the applicant's girlfriend's attack, Mrs Lamont had her face turned towards her husband and saw the applicant pick up a large plastic soft drink bottle, which was three quarters full, and hit her husband on the head as he turned towards her to help her. The applicant then knelt with one knee on

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Mr Lamont's back and punched him at least three more times on his face.

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Mrs Lamont heard two very loud cracks as her husband was being punched in the face. She saw blood gush from his mouth.

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[8] The applicant's version of events was quite different. He said that

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Mr and Mrs Lamont "burst through the door" of the unit, although he than added that they "opened the door with a key". He said that Mrs Lamont walked in first "and started swearing abuse at Kylie. Called her aboriginal and all that"; he saw his girlfriend pull Mrs Lamont to the ground and them struggling together; he saw them rolling around; and then he saw that "Kylie was on the ground with [Mrs Lamont] on top punching into her and then it looked like [Mr Lamont] was on top sort of trying to get in as well."

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[9] The applicant said that he pulled Mr Lamont off and flung him across the room where the back of his head may have hit a wall; this explained an abrasion on the back of Mr Lamont's head, which Mrs Lamont had attributed instead to the applicant's blow with the bottle. The applicant said that Mr Lamont then advanced towards him with his arms up and his fists closed and the applicant then hit him three or four times using both fists. The applicant denied hitting Mr Lamont over the head with the bottle. He denied having such a bottle in his room. He said that he did not see Mr Lamont on the floor at any time.

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[10] The applicant and his girlfriend drove away from the motel shortly after that. They were then involved in a single vehicle accident in Cairns, after which the applicant was found to have had a blood alcohol reading of 0.196. (His own evidence was that he had been drinking since 9.30 pm the evening before.)

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[11] Once the applicant was sober he was interviewed by the police, but unfortunately the electronic record of that interview was later found to be inaudible and an attempt to enhance it failed. According to the arresting officer's evidence, what the applicant said in that interview differed markedly from the applicant's version at the sentence hearing. The officer said that the applicant claimed that Mr Lamont attempted to punch him; the applicant then punched Mr Lamont once to the face causing him to fall to the floor; and the applicant did not further assault Mr Lamont but that Mr Lamont pushed him down a stairwell.

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[12] The sentencing judge directed herself that, having regard to the importance in the sentence proceedings of the resolution of the conflicting versions, the necessary degree of satisfaction as to the truth and accuracy of the allegations by

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Mr and Mrs Lamont was "at the higher end of the scale": Evidence Act 1977 (Qld),

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s 132C(4).

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[13] Applying that test, the sentencing judge found that the applicant came up behind

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Mr Lamont, hit him on the back of the head with a three quarter full plastic bottle, and continued to punch Mr Lamont in his face some three times after he had fallen face down to the floor.

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[14] The sentencing judge mentioned particular matters that her Honour had taken into account in reaching those conclusions. Mr and Mrs Lamont were both sober whereas the applicant had a very high blood alcohol reading shortly after the assault. Mr and Mrs Lamont had been consistent in their versions given in their statements to police on 22 January 2006, in evidence at the committal on

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9 June 2006, and in evidence before the sentencing judge, in that their evidence "remained essentially the same". Some inconsistencies were explicable by

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Mr Lamont's inability to recall what happened to him after he fell to the floor, when he had received very severe injuries.

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[15] Her Honour also considered that, despite the delay, the arresting officer would likely have remembered that the applicant told him he had delivered only one blow to Mr Lamont, which was very different from the evidence the applicant gave in court. The applicant also had convictions for offences of dishonesty.

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[16] The sentencing judge considered implausible the applicant's assertion that

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Mrs Lamont swore at and physically attacked his girlfriend, when it was clear that Mr and Mrs Lamont were interested only in seeking to have the applicant and his girlfriend leave the premises. The applicant appeared in evidence to be trying to minimise and justify his actions. On the other hand, although her Honour accepted that Mr and Mrs Lamont were still very emotional about the incident and its devastating consequences for them, neither appeared to be exaggerating the events. Her Honour also thought that the injuries received by Mr Lamont, particularly the one to the back of his head, were more consistent with the version given by

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**[17] The applicant argued that the sentencing judge made factual errors. He referred, for example, to the evidence of Mrs Lamont that the door was locked and she opened it with a master key whereas at one point Mrs Lamont had said the door was open. Mrs Lamont's evidence was that Mr Lamont entered the room first and she followed, but Mr Lamont's evidence (on one view of it) was that Mrs Lamont entered the room first and he followed. There were differences in their evidence as to where they and the applicant and his girlfriend were standing, and as to the location and presence of particular items of furniture. Mr and Mrs Lamont also had different recollections of what happened to the bottle after the applicant and his girlfriend left the motel.

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[18] In Mrs Lamont's statement tendered at the committal hearing she said that after the applicant hit her husband with the bottle her husband turned around to face the applicant, the applicant swung his right arm around in a big arc and hit her husband right in the middle of his chin, and he then fell to the floor. The applicant pointed out that the impression given by her evidence at the sentence hearing was that her husband fell to the ground directly after being hit by the bottle and she did not mention that the applicant also punched Mr Lamont before he fell.

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[19] The applicant also referred to Mrs Lamont's evidence that her husband attempted to pull the applicant's girlfriend from her while they were together on the floor wrestling. At the sentence hearing Mr Lamont said that she could not remember this happening and at one point in cross examination he denied having pulled the two women apart. (However, he did remember calling out to his wife to help him when the applicant was assaulting him and that he "reached out and grabbed her arm thinking I was grabbing the assailant". Mrs Lamont gave evidence to similar effect at the sentence hearing, saying that her husband "turned to say something and as he turned to help me he was hit on the head.")

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[20] The significance of the matters to which the applicant pointed was for the sentencing judge to consider. Inconsistencies in the evidence of this kind are not surprising, particularly in light of the relatively short time the actual assault must have occupied, its extreme violence, the disturbance and consequential trauma for Mr Lamont (who was seriously injured) but also for Mrs Lamont who was also assaulted and witnessed the assault on her husband, and the delay between the time of the events and the sentence hearing.

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[21] There is no reason to think that the sentencing judge was unaware or did not take into account the matters now relied upon by the applicant. Contrary to the applicant's submission, I would not construe the sentencing judge's reasons as conveying that there were no inconsistencies in the evidence. Rather, her Honour observed that the version given by each of Mr and Mrs Lamont remained essentially the same from the outset and that Mr Lamont's evidence was consistent with that of his wife's in all relevant respects.

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[22] The points made by the applicant do not establish any error in that observation. In relation to the essential matters there was no significant departure in their versions. Each described the applicant as making a surprise attack on Mr Lamont. Unsurprisingly Mr Lamont could not give evidence of what caused him to fall to the ground but he remembers being hit without warning, falling involuntarily to the ground, and being punched on the face whilst lying helpless on the ground. Both in her evidence at the committal hearing and in the sentence hearing Mrs Lamont said that whilst her husband lay on the floor the applicant punched him repeatedly in his face, and she heard the cracks made by his bones breaking and saw the blood pour from his mouth.

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[23] The applicant contended also that the sentencing judge erred in finding that the applicant's assertion that Mrs Lamont swore at and assaulted his girlfriend was not plausible. He argued that a statement by an independent witness, Mr Silveira, was to the contrary. This argument is without substance. The sentencing judge's rejection of the applicant's evidence that Mrs Lamont swore at and physically attacked his girlfriend concerned events preceding the assault. Mr Silveira's evidence concerned what Mrs Lamont said after she and her husband had been assaulted.

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[24] The applicant also challenged that finding in another way, contending that he did not give any evidence that Mrs Lamont physically attacked his girlfriend. This argument also lacks substance. The applicant gave evidence in just those terms. He said that Mrs Lamont walked into the room first "and started swearing abuse" at his girlfriend. After referring to a struggle when his girlfriend pulled Mrs Lamont to the ground the applicant said that his girlfriend "was on the ground [with Mrs Lamont] on top punching into her ...". A related argument, that the evidence of a number of witnesses established that Mrs Lamont racially abused the applicant's girlfriend similarly lacks merit. The evidence showed only that the applicant's girlfriend (who, as the applicant acknowledged, was behaving irrationally at the time) accused Mrs Lamont of having done so, an accusation vehemently denied by Mrs Lamont.

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[25] The applicant complains that the sentencing judge was in error in regarding the absence of exaggeration by Mr and Mrs Lamont as a relevant consideration. He contends that they did exaggerate as to the number of people who were standing around watching outside the room. Plainly, however, the sentencing judge was referring to Mr and Mrs Lamont's evidence of the relevant events, including the concession made by each of them that the applicant was not aggressive at all when they entered the room.

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[26] The applicant also argues that the injury to the back of Mr Lamont's head was more consistent with him having hit the wall, in the way the applicant contended, rather than by being hit by the bottle. That argument is not supported by any evidence.

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[27] It was also contended that the sentencing judge erred by accepting the evidence of the arresting officer in a statement made on 9 June 2006 as establishing that the applicant had given a prior inconsistent version of his assault upon Mr Lamont. As the applicant's counsel at the hearing mentioned in submissions to the sentencing judge, he did not object to the tender of that statement as evidence in the sentence hearing. Nor did the applicant's counsel seek to cross-examine the police officer. It is not possible to say that, on an objective assessment, the applicant's counsel did not then have a good forensic reason for those decisions. There appears to be no basis for suggesting that the sentencing judge was not entitled to take this into account.

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[28] In this respect the applicant also referred the Court to what he said was the original prosecution brief for the committal, contending that there was an entry in it that was consistent with his claim that in his first statement to police he had admitted his repeated punching of Mr Lamont. It was not suggested that this material was not available to the applicant at the sentence hearing or even that his counsel was unaware of it and its probative value is not established. No basis has been shown for the admission of the document as fresh evidence in this application.

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[29] The sentencing judge had a very considerable advantage over this Court in seeing and hearing the witnesses give evidence and be cross examined. Her Honour appropriately applied a high standard of proof in testing the allegations. I am unpersuaded that her Honour fell into error in determining the facts with reference to which her Honour sentenced the applicant.

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[30] Accordingly, this Court must consider the application on the basis of the version of facts accepted by the sentencing judge, namely that the applicant approached

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Mr Lamont from behind and, without warning, hit him in the back of his head with a three quarter full plastic bottle with sufficient force to cause an abrasion, and that after Mr Lamont fell to the floor, face down, the applicant delivered three blows to his face. The blows were obviously powerful ones. Mr Lamont suffered very serious injuries. He lost a tooth, his jaw was fractured and he still suffers as a result of the injuries. He and his wife have suffered greatly emotionally and financially, having had to give up the motel.

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[31] The sentencing judge accepted that all of this arose out of a conflict between the applicant and his girlfriend and she appeared to have been the aggressor in that conflict. The trial judge gave some credit for his plea of guilty, but appropriately the credit was not particularly substantial given that there was a full committal in which

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Mr and Mrs Lamont gave evidence and were cross examined and that the plea was a contested one. Her Honour also took into account that the applicant, a 24 year old man, had no previous convictions for offences of violence and that this was the first time he had been involved in a violent incident of this kind.

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[32] On the other hand, the applicant did have previous, recent convictions of criminal offences. The attack was cowardly and vicious, made initially without warning from behind, and prolonged whilst Mr Lamont remained on the floor in distress and unable to defend himself. It was a gross reaction to Mr Lamont's peaceful and perfectly reasonable request that the applicant and his girlfriend leave the motel.

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[33] In R v Tupou; ex parte A-G (Qld) [2005] QCA 179 the Chief Justice, with whose reasons Atkinson and Mullins JJ agreed, examined comparable cases concerning gratuitous, unprovoked assaults causing grievous bodily harm. The Chief Justice observed that "gratuitous unprovoked assaults of this gravity occasioning grievous bodily harm to the victim necessitates stern punishment influenced strongly by the need for deterrence." In that case there was a plea of guilty and some matters of mitigation. A sentencing range of three to four years imprisonment was found to be appropriate. Because that was an Attorney-General's appeal a moderate approach was adopted. Taking that into account the Court imposed a sentence of three years imprisonment suspended after 15 months.

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[34] There are of course some factual differences between the cases. Most significantly the moderating factor inherent in an Attorney-General's appeal is irrelevant here and less credit is due to the applicant for his plea of guilty for the reasons earlier mentioned. This vicious assault did not occur on the street, but it was hardly less serious on that account. It was aggravated by being directed at a manager of a motel who peacefully and with ample justification asked the applicant and his girlfriend to leave the motel. In these circumstances a sentence of three years imprisonment with a parole release date fixed after 12 months was plainly within the sentencing judge's discretion.

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[35] For these reasons I would refuse the application.

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[36] PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of Fraser JA and agree that the application for leave to appeal against sentence should be refused. The findings of fact made by the learned sentencing judge were open to her and were determined applying the appropriate standard of proof. The sentence imposed was well within the sentencing discretion, as the decision in R v Tupou; ex parte A-G (Qld) [2005] QCA 179 demonstrates.

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[37] DAUBNEY J: I agree with the reasons of Fraser JA, and would also refuse the application.**

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Judgment (49 paragraphs)

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