R v W [2004] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION: R v W [2004] QCA 124

PARTIES: R v W (applicant)

FILE NO/S: CA No 391 of 2003 / DC No 1522 of 2002

DIVISION: Court of Appeal

PROCEEDING: Appeal against Sentence

ORIGINATING COURT: District Court at Brisbane

DELIVERED EX TEMPORE ON: 22 April 2004

DELIVERED AT: Brisbane

HEARING DATE: 22 April 2004

JUDGES: de Jersey CJ, Jerrard JA and Holmes J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Application refused / 2. The envelope containing the section 13A to be resealed and not to be opened except with a further order by the Court

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DISPARITY – CO-OFFENDERS / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OTHER CONVICTIONS OF OFFENDER - where applicant sentenced to four and a half years’ imprisonment following conviction by a jury of the offence of doing grievous bodily harm with intent – where co-offenders pleaded guilty to causing grievous bodily harm simplicita and were sentenced to two years’ imprisonment suspended after three months -where the applicant had a relevant prior criminal history - whether the penalty imposed on the applicant is manifestly excessive compared to the penalties imposed on the co-offenders / Penalties and Sentences Act 1992 (Qld), s 13A

COUNSEL: A J Rafter for the applicant / B G Campbell for the respondent

SOLICITORS: P J O'Brien for the applicant / Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The applicant was sentenced to four and a half years' imprisonment following conviction by a jury of the offence of doing grievous bodily harm with intent.

The offence involved the stabbing of the complainant in the course of a beating by the applicant and two co-offenders during the night. The complainant had earlier caused considerable trouble at the residence of one of the co-offenders. They chased him off, cornered him in a dark place and delivered the beating. They were armed at the time with a pool cue, a baseball bat and a knife. The applicant was described as an active and enthusiastic participant. The complainant received life-threatening injuries from which he fortunately recovered.

Although the applicant was prepared to plead guilty his plea was offered on the basis it was not he who stabbed the complainant. Asked for a special verdict, the jury indicated it did not know who stabbed the complainant. The applicant was sentenced on the basis he was involved in an assault of some seriousness knowing that others in the assault were armed and that an intentional causing of grievous bodily harm was a probable consequence of that assault.

At the time of the commission of this offence on 2nd November 2002 the applicant was aged 21 years. He had previously been convicted. When aged 18 he was sentenced in the District Court for offences of wounding, assault occasioning bodily harm and assault. Following the initial sentencing in respect of those offences there was an appeal and a re-sentencing and he ended up being imprisoned for three months to be followed by 12 months probation.

Now, those earlier offences concerned an attack on a man in a car park. The applicant and his co-offender on that occasion had approached the man and his girlfriend. For no apparent reason, the man was struck with a bottle and kicked and punched whilst on the ground. The complainant there suffered a fractured skull. The girlfriend tried to intervene but was pushed away.

The applicant's co-offenders in the instant offences pleaded guilty to causing grievous bodily harm simplicita and they were sentenced to two years imprisonment suspended after three months. Those were the reduced sentences after taking account of undertakings under section 13A of the Penalties and Sentences Act 1992 (Qld). But for those undertakings the sentences would have been two and a half years imprisonment suspended after nine months.

This application is pursued on the basis that in context of the penalties imposed on the co-offenders the penalty imposed on this applicant is disparate and therefore manifestly excessive. Although, as with the applicant, the co-offenders were sentenced on the basis they were not the persons who actually delivered the stabbing, Mr Campbell, for the respondent, advanced four features which he submitted distinguished their cases from that of the applicant.

First, the applicant was convicted of doing grievous bodily harm with intent, whereas the co-offenders were dealt with for doing grievous bodily harm simpliciter bringing up the differing maximum penalties of 14 years' imprisonment and life imprisonment; second, the co-offenders had pleaded guilty and assisted the police investigation; third the co-offenders had provided section 13A undertakings; and fourth, the applicant bore the burden of a serious relevant prior criminal history which was not so in the cases of the co-offenders.

To my mind the first and fourth of those features combined to justify the differential sentences imposed here; that is, the conviction in the case of the applicant for doing grievous bodily harm with intent and, second, the applicant's prior criminal history.

It seems to me that, in view of the nature of the offence, the applicant's prior convictions and the importance of general deterrence in particular, the sentence imposed was warranted, albeit in terms of the head sentence, lenient, speaking generally and taking no account for the moment of the question of the comparative treatment of the offenders. Turning to that particular feature it does seem to me that those aspects taken from Mr Campbell's submission do sufficiently warrant the differential treatment dealt out to the applicant as against his co-offenders. I would therefore refuse the applicant.

JERRARD JA: I agree.

HOLMES J: With some hesitation I agree. The sentence clearly was justifiable in the abstract, but the question of parity has caused me considerable concern. It is a difficult area in which to arrive at a firm view. But the conclusion that I have reached is that the disparity was not such as would warrant intervention.

THE CHIEF JUSTICE: The application is refused and there will also be an order that the envelope containing the section 13A be resealed and not to be opened except with a further order by the Court.