- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Tom  QCA 218
CA No 230 of 2017
DC No 471 of 2017
Court of Appeal
District Court at Cairns – Date of Sentence: 6 September 2017 (Harrison DCJ)
18 September 2018
25 July 2018
Philippides JA and Boddice and Bond JJ
The orders of the Court are that:
1. The application for leave to appeal is granted.
2. The appeal is dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawfully doing grievous bodily harm, assault occasioning bodily harm, common assault, and two counts of wilful and unlawful damage to a motor vehicle – where the applicant was sentenced to a head sentence of 5 years imprisonment on the most serious offence with all terms of imprisonment on the other offences to be served concurrently – where the applicant sought leave to appeal from his sentence on the ground that it was manifestly excessive – whether the learned sentencing judge erred in failing to take account of “extra-curial” punishment in the form of injuries sustained by the applicant in the course of offending – whether the learned sentencing judge sentenced on the basis of a misapprehension of the mechanism by which the complainant had broken her leg in the course of the applicant’s offending – whether the learned sentencing judge erred in proceeding on assumptions concerning the applicant’s alcohol use and its connection with his offending – whether, pursuant to s 668E(3) of the Criminal Code 1899 (Qld), some other sentence is warranted in law and should have been passed
Criminal Code 1899 (Qld), s 668E(3)
Kentwell v The Queen (2014) 252 CLR 601;  HCA 37, applied
Pearce v The Queen (1998) 194 CLR 610;  HCA 57, applied
R v Brand  QCA 525, applied
R v Bowditch  QCA 157, applied
R v Bryan; ex-parte Attorney-General (Qld) (2003) 137 A Crim R 489;  QCA 18, applied
R v Hannigan  2 Qd R 331;  QCA 40, cited
R v HBA  QCA 306, cited
J Crawford for the applicant (pro bono)
S Cupina for the respondent
No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent
PHILIPPIDES JA: I agree with the orders proposed by Bond J for the reasons given by his Honour.
BODDICE J: I agree with Bond J.
BOND J: On 6 September 2017, the applicant was convicted in the District Court on his own plea of guilty of five offences committed by him on 9 October 2016, for which he was sentenced as follows:
Grievous bodily harm to Louise Clare Hesketh: 5 years imprisonment;
Assault occasioning bodily harm to Brandon James Steffensen: 2½ years imprisonment;
Common assault to Anthony Arisa Street: 12 months imprisonment;
Wilful and unlawful damage to a motor vehicle: 6 months imprisonment;
Wilful and unlawful damage to a motor vehicle: 6 months imprisonment,
all terms of imprisonment to be served concurrently.
The learned sentencing judge declared 332 days spent in pre-sentence custody as time already served under the sentence and set a parole eligibility date of 9 June 2018 (by which date the applicant would have served one third of the time to be served under the sentence).
The applicant sought leave to appeal from his sentence on the grounds that the sentence imposed was manifestly excessive. The applicant sought to persuade this Court that leave to appeal should be granted on the grounds the sentencing discretion had miscarried –
because of two specific errors allegedly made by the sentencing judge; or
because this Court should otherwise infer that, in all the circumstances, there must have been some misapplication of principle.
The applicant then sought to persuade the Court that it should form the requisite opinion under s 668E(3) of the Criminal Code 1899 (Qld) – namely that some other less severe sentence was warranted in law and should have been passed – and, accordingly, the Court should quash the sentence below and impose, in substitution therefor, a sentence on the most serious sentence in the range of 4 to 4½ years.
The offending and its impact
On a Sunday afternoon, on 9 October 2016, the applicant went on a violent and destructive rampage against members of the public in a suburban street in Cairns. The people who he injured were not previously known to him.
The applicant commenced by attacking 21 year old Mr Steffensen, who had stepped outside his home after hearing a commotion along the street. He had asked if everything was okay on seeing a female arguing with the applicant and where there were two other men nearby. The applicant jogged up to Mr Steffensen and asked “what the fuck are you looking at?”, then punched him in the eye, tackled him to the ground and punched him in the head several times.
Mr Steffensen broke away and retrieved a hammer and told the applicant to stop punching him. The applicant did not. Mr Steffensen hit the applicant once with the hammer before dropping it. The blow caused the applicant a head laceration which started to bleed. The applicant told Mr Steffensen he was going to kill him and chased him around a car. Others unsuccessfully tried to intervene. Mr Steffensen suffered bruising to the eye and hip, soreness and tenderness to the hip, eye and knee, and an injury to the right knee.
The applicant picked up the hammer and smashed the windows and front and rear windscreens of the car as well as punched the passenger side of the car. This was the first wilful damage charge. He then positioned himself on the street, running up to passing cars and hitting them as they drove past; also running and shouting at people and attempting to engage in fights with anyone who came out of their home to see what was happening.
Fifty-three year old Ms Hesketh, her daughter and her daughter’s boyfriend could hear the commotion and drove to Moody Street. They saw the applicant and thought he had been in an accident so they pulled over to help him.
The applicant threw rocks at their car. Ms Hesketh got out of the car. The applicant threw a handful of rocks into Ms Hesketh’s face; he clenched his fists, danced around her like he was in a boxing ring and punched her twice in the face. He kicked her in the left leg from the side. Ms Hesketh immediately fell to the ground and was in pain, unable to move. In her victim impact statement she wrote “I immediately fell over and I heard a snap. I knew something bad happened to my leg I felt instant pain, it was throbbing and very painful.”
Ms Hesketh’s daughter’s boyfriend got out of the car. The applicant threatened to kill him and chased him around the car. He soon got back into the car and drove away. The applicant punched and kicked the car, leaving indentations. This was the second wilful damage charge.
Members of the public helped Ms Hesketh to her feet. The applicant approached again. He had his fists clenched. Ms Hesketh told him “piss off, I’ve got a broken leg”. Others also told the applicant to leave her alone.
The applicant tried to get into a car (which contained a woman and a child). The applicant was told to get out. He tried to get onto the bonnet of another car. This driver reversed, hitting the car behind.
The applicant returned to Ms Hesketh, lunging at her. Others took hold of the applicant and pushed him away. One member of the public, Anthony Street, stood between Ms Hesketh and the applicant. The applicant became enraged, he punched Mr Street twice – once to the neck and then to the left side of the face. Mr Street and another person tried to placate the applicant. The applicant launched another punch at Mr Street.
The applicant was restrained. Police arrived soon after.
The applicant was taken to hospital for treatment for the laceration and bruising to the top of his head, presumably caused by Mr Steffensen’s defensive hammer blow. The applicant was aggressive and agitated and refused to answer questions about his injury. He was given a sedative so a CT scan could be conducted. No cranial injuries were detected and he was discharged from the hospital into the custody of police after 3 hours. He was then charged and remanded into custody.
Ms Hesketh was taken to hospital. She had sustained bruising and swelling to the jaw where she had been punched, but the principal injury was a fracture to her left tibia. She remained at the hospital for 9 days before she was treated via orthopedic surgery requiring fixation of the bone with a plate and screw. Without such medical intervention, Ms Hesketh would have had an unstable knee joint and a permanent loss of normal knee function (which would have affected her mobility and maintenance of normal gait). She was placed in a hinged knee brace and entered a prolonged period of rehabilitation and extensive physiotherapy and occupational therapy.
Ms Hesketh’s victim impact statement dated 5 July 2017 recorded:
She was in hospital for a total of 22 days before she could go home.
When she got out of hospital she was not able to walk without crutches for a further 8 weeks. She needed the assistance of her daughter for many of the basic tasks of living.
She was on pain medication for months and still took medication on an as-needs basis.
She felt depressed and anxious and only left home if she had to do so. She had taken medication to help deal with her anxiety. She regularly attended a psychologist to help her with her recovery.
She received physiotherapy treatment on an ongoing basis. She could no longer walk with confidence. She felt that she walked like an old lady, with more of a scuffle and a limp. She used to enjoy walking in the morning and afternoon with her dogs but she could no longer do that without pain. She was not as active as she used to be and could not do many of the activities she used to enjoy with her young nephews.
Due to the time taken to heal mentally and physically, she had been unable to return to work. That had caused her a huge amount of financial stress.
The matters taken into account by the sentencing judge
The learned sentencing judge received submissions from counsel for the Crown which referred him to R v Bryan; ex-parte Attorney-General (Qld)  QCA 18, R v Dietz  QCA 392 and R v Pitt  QCA 13 in support of an ultimate submission that a sentence in the range of 5 or 6 years imprisonment, with a declaration that the applicant was convicted of a serious violent offence, was appropriate. Counsel suggested that mitigation of the head sentence to the lower end of that range might be regarded as appropriate.
The learned sentencing judge received submissions from counsel for the applicant which referred him to R v Kinersen-Smith and Connor; ex parte Attorney-General (Qld)  QCA 153 and R v Tupou; ex parte Attorney-General (Qld)  QCA 179 in support of an ultimate submission that a sentence in the range of 4 to 4½ years imprisonment, with a parole eligibility date after one third to take into account his pleas of guilty and his age, was appropriate.
The sentencing remarks show that the learned sentencing judge took into account the following matters:
the offending was prolonged and involved assaulting strangers, including one who had stopped to render assistance;
the nature and severity of the injury suffered by Ms Hesketh, including the grave impact which the offending had had on her, as revealed in her detailed victim impact statement;
the applicant’s personal circumstances, namely:
- his relative youth – he was 21 at the time of offending and 22 at the time of sentencing;
- he came from a very supportive family, members of which had attended the sentence hearing, and who had provided letters detailing their wishes to help the applicant to get a job, to get back into football and to stay away from the wrong crowd, and who wanted to get him “away from drink”;
the applicant’s prior criminal history, which reflected both street level offences, including wilful damage, multiple breaches of bail, a number of offences of obstruct/assault police and also a conviction for the more serious offence of attempted armed robbery with actual violence in company;
that the subject offending appeared to be connected to alcohol consumption, and the applicant had a history of his drinking being connected with his previous offending;
his performance under orders administered by the probation and parole service revealed he had continually disregarded the conditions of his orders by re-offending, and his compliance with reporting requirements was mixed;
that his guilty plea had been entered at the earliest possible opportunity and was consistent with remorse on the part of the applicant;
that general deterrence loomed very large – that a message had to be sent to the community that substantial penalties apply for those who turn on innocent people; and
The learned sentencing judge acknowledged that he had been provided with a variety of cases but thought that often no two cases were the same. He acknowledged that he had been asked to make a declaration as to conviction of a serious violent offence, but had determined not to take that course. He concluded that a sentence of 5 years imprisonment for the assault occasioning grievous bodily harm to Ms Hesketh was appropriate, and otherwise sentenced in the manner recorded at  and  above.
Alleged error in relation to failing to take account of “extra-curial” punishment
The first error which the applicant sought to establish was that there had been a failure by the learned sentencing judge to have any regard to the head injury suffered by the applicant. The contention was that the head injury was of such significance that the applicant should be regarded as having suffered at least part punishment by virtue of that injury, and that should have been assessed as going in mitigation of penalty: cf R v Hannigan  2 Qd R 331.
There is no merit in this contention. Whilst it is true that the learned sentencing judge did not mitigate the sentence having regard to the head injury, no submission was made that he should and, in any event, he was right not to do so. The severity of the injury was not even sufficient to keep the applicant in hospital more than 3 hours. No cranial injuries were identified on a CT scan. There was no evidence of any lasting harm to the applicant. The injury was not of such significance as might attract mitigation of penalty on the grounds of so-called “extra-curial” punishment.
Alleged error in relation to the impact of kicking Ms Hesketh
The second error which the applicant sought to establish was that the learned sentencing judge had sentenced on the basis of a misapprehension of the mechanism by which Ms Hesketh had suffered her fractured tibia.
During the course of submissions, the learned sentencing judge had asked whether Ms Hesketh’s injury was caused by the applicant’s kick or by the fall consequent upon the kick. He was told by counsel for the Crown that the kick had broken the leg. Counsel for the applicant did not cavil with this. Later in his submissions, counsel for the Crown simply submitted that the applicant had delivered a kick which “resulted in the grievous bodily harm”.
During his sentencing remarks, the learned sentencing judge observed:
“You punched her in the face a number of times and then you kicked her with such force in the leg that she sustained a fractured tibia; a broken leg.”
“So not only did she end up with a broken leg and got beaten up, her car was damaged as well because she tried to be the good Samaritan for you.”
“I take into account the injuries that were inflicted on the lady on the charge of unlawful grievous bodily harm. She sustained a fractured leg and would have been left with permanent injury had it not been for operative intervention.”
The suggestion on behalf of the applicant was “[t]here was no evidence that the kick caused the injury, it was just a[s] likely that it was the fall consequent upon the kick that caused the injury. That is a significant distinction as it is an indication of the force of the kick.”
I accept that there is a factual difference between –
a scenario in which a kick is the direct cause of a fracture, without a subsequent fall having any causal significance to the fact of the injury having occurred; and
a scenario in which a kick is the direct cause of a fall, and the fall is the direct cause of a fracture.
Reference to the agreed schedule of facts and to Ms Hesketh’s own statement suggest that the kick caused the fall, that a fracture was immediately sustained, but otherwise do not permit of a determination whether the case fell within the first or second scenario. But whether the kick was the direct cause (first scenario) or the indirect cause (second scenario), it was nevertheless right to sentence the applicant, as the learned sentencing judge did, on the basis that the applicant kicked Ms Hesketh with such force that a fractured tibia was sustained. The learned sentencing judge’s remarks did not draw the distinction which the applicant seeks to draw.
But even if I am wrong in that assessment of his Honour’s remarks, whilst I accept that the distinction which the applicant seeks to draw might have some significance in a different case, I reject the proposition that it had any significance in this case. The applicant was a big strong young man who during the course of a violent rampage, punched and kicked a woman who was 30 years older than him, causing her to suffer a broken leg. Whether the causal mechanism was, on a strict analysis, direct or indirect, matters not at all.
I reject the submission that the learned sentencing judge sentenced on the basis of factual error.
Error in relation to the applicant’s history of alcohol consumption
During the course of argument before this Court it became plain that there was a category of factual error which had been made by the learned sentencing judge.
Before the learned sentencing judge, counsel for the Crown made no submissions concerning the applicant’s history of alcohol consumption, or whether the consumption of alcohol had any connection to the subject offending. There were no drug or alcohol offences in the applicant’s criminal history. Nor was there any suggestion in the evidence of the existence of any connection between the consumption of alcohol and the commission of any of the offences in that history.
The agreed schedule of facts did not contain any reference to the applicant’s consumption of alcohol. Indeed, save for the fact that the probation and parole service report recorded that (1) the applicant had been issued a reasonable direction to attend a “Substance Misuse Program”, which he had attended on 3 occasions and (2) the applicant had clear results on breath testing on 5 occasions, there was no evidence before the court which made any mention at all of the applicant’s alcohol consumption. There was no evidence which clarified what substance it had been thought that the applicant was misusing.
In fact alcohol consumption was mentioned for the first time during the submissions of counsel for the applicant below. Counsel for the applicant submitted that the offending was one of the worst examples of alcohol-fueled violence, informed the learned sentencing judge that the applicant had been on a binge drinking session of some 30 to 40 hours duration prior to the offending and submitted that the applicant needed appropriately to deal with his drinking.
Counsel for the Crown did not demur to those submissions.
Accordingly, there was no error involved in the learned sentencing judge sentencing on the basis that the subject offending appeared to be connected to alcohol consumption. However the learned sentencing judge went beyond that and proceeded on assumptions concerning alcohol use which were not warranted by the evidence or by the submissions before him.
First, his Honour concluded that the applicant’s criminal history suggested that the applicant became violent and angry, particularly when affected by alcohol. But there was no evidence which supported a connection between the applicant’s consumption of alcohol and the offending recorded in his criminal history.
Second, his Honour recorded that the applicant’s family wanted to get the applicant “away from the drink”. But the letters tendered from the applicant’s family did not make any reference to the applicant’s drinking. They mentioned only concerns that the applicant keep out of trouble and away from “the wrong crowd”.
Third, his Honour concluded that the applicant had such a problem with alcohol that he observed “Of course, you drink. And once you drink, that is it.” There was no adequate basis for reaching that inference.
The foregoing analysis justifies the conclusion that the learned sentencing judge mistook the facts, and that the sentencing discretion miscarried and leave to appeal should be granted. The identification of specific error means that this Court must now consider, in the exercise of its own discretion and taking into account the purposes of sentencing and the application of established sentencing principles, whether some other sentence, whether more or less severe, is warranted in law: Kentwell v R (2014) 252 CLR 601 per French CJ, Hayne, Bell and Keane JJ at  to . If the Court so concludes, then the sentence should be quashed and the applicant re-sentenced to the appropriate sentence. If not, then the Court is not required to re-sentence and the appeal should be dismissed.
Was some other sentence warranted in law?
I would take into account the following matters.
The totality of the offending described at  -  above was serious, involving as it did a string of unprovoked assaults on members of the public and their property in a prolonged drunken rampage from which the applicant did not desist until he was subdued. The ultimate sentence of imprisonment, must reflect that seriousness.
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 623-4 and Gummow J at 629.
In this case, the most serious offence involved an unprovoked attack by a young man on a female member of the public who was 30 years older than him and who had stopped to assist him. The attack involved multiple blows with his fists and a kick, the latter blow causing the victim to suffer a broken leg, with the serious consequences recorded at  -  above.
The applicant’s prior criminal history was poor, despite his youth. It included wilful damage, multiple breaches of bail, a number of offences of obstruct/assault police and also a conviction for the more serious offence of attempted armed robbery with actual violence in company.
The probation and parole service report revealed the applicant had continually disregarded the conditions of his orders by re-offending, and his compliance with reporting requirements was mixed. This applicant had been given multiple chances for rehabilitation in the past and had not taken them. The only bright spot in the report was that the report recorded that on the last occasion the applicant came before the service “his response to supervision improved and he completed the order without contravention.”
I take the same view as was taken by the learned sentencing judge, namely that considerations of general deterrence and denunciation loom large. This sort of violent rampage must attract substantial punishment. Personal deterrence for this particular offender was also significant, particularly given his criminal history.
There was some evidence touching upon the applicant’s remorse, although it could not be described as compelling. The fact of the early guilty plea was some indication, but its weight was diminished by the fact that the Crown’s case was very strong. However, the applicant’s father had written to the Court a letter which, whilst mostly focused on what the family wanted for their son, did record that the father had visited the applicant in prison and could “see the remorse and guilt he has towards this crime & [the applicant] has told me he is willing to change for the better”. Finally, the applicant’s counsel informed the learned sentencing judge (without objection from counsel for the Crown) that in conversations which he had had with the applicant, the applicant:
describes that he feels real sorry for her, and, when I asked about the consequences of his offending upon the complainant, he described that:
‘She can’t do as much stuff as she could as before. It makes me feel stupid.’
And when I asked him to describe the word “stupid” to me, he sort of said:
‘Feel stupid. I shouldn’t have done it. I feel sorry for her for what I have done, and it would have the consequence of making people think twice for helping people in trouble.’
And he again emphasized that he feels truly sorry for what he has done to the complainant.
In addition to such evidence of remorse as there was, I accept that mitigating features include:
The applicant’s relative youth, namely he was 21 at the time of offending and 22 at the time of sentencing.
The applicant came from a very supportive family who were willing to help him rehabilitate.
The fact that the probation and parole service report contained the suggestion to which I have earlier referred.
The applicant’s early guilty plea.
Before this Court, the applicant renewed the submission made before the learned sentencing judge, namely that in order to take into account the totality of the applicant’s offending a sentence in the range of 4 to 4½ years was appropriate. The submissions of counsel for the Crown supported the totality of the sentence imposed by the learned sentencing judge as being not manifestly excessive, but did not address specifically the course which this Court should take if it determined to exercise the sentencing discretion afresh. No submission was made that this Court should make a declaration as to the conviction of a serious violent offence.
In addition to the cases to which reference was made below, counsel drew the Court’s attention to R v Holland  QCA 200, R v Mitchell  QCA 240 and R v Lowe  QCA 270. Ultimately little is to be gained by a close examination of those and other cases, because these observations by Williams JA in R v Bryan; ex-parte Attorney-General Qld remain apposite:
It is difficult, if not impossible, when dealing with the offence of grievous bodily harm to speak meaningfully of a “range” when considering penalty. A great variety of acts may result in the commission of that offence. A single blow with the hand, the negligent use of a dangerous object, excessive force in resisting an attack, and blows struck in a highly emotional situation may all result in the offence being committed. Also the nature of the injuries sustained and the permanent consequences thereof may vary greatly. All of those factors will have some impact in determining the appropriate sentence. There is no doubt, and the learned sentencing judge referred to some, that on occasions sentences in the range of two to four years have been imposed for the offence of doing grievous bodily harm. But that does not mean that other instances of that offence do not call for a sentence beyond that range. Indeed on the schedules placed before the sentencing judge and this court there were quite a number of sentences for grievous bodily harm in the range five years to nine and a half years.
Further, in R v HBA  QCA 306, McMurdo P, Muir and White JJA referred with approval to those observations and also to earlier observations which Williams JA made in R v Brand  QCA 525 (at , Jerrard and Holmes JJA agreeing), where his Honour observed:
The only real conclusion that can be drawn from a consideration of the cases referred to is that the appropriate sentence for the offence of grievous bodily harm will vary significantly and that relevant factors will include the nature of the injuries sustained, the age of the offender, the criminal history of the offender, whether or not a weapon was used, whether the offence was established by one blow or whether there was a sustained attack on the complainant.
To my mind, having regard to the considerations to which I have adverted, an appropriate sentence of imprisonment for the offending against Ms Hesketh, would be 4 years. For the remaining offences, I would impose the same terms of imprisonment as did the learned sentencing judge. No submission to the contrary was made.
So far as questions of cumulation, concurrence and totality are concerned:
It would not adequately reflect the seriousness of the applicant’s offending viewed as a whole if the applicant were to serve all of the other sentences of imprisonment concurrently with the sentence in respect of the offending against Ms Hesketh.
Two options are open: R v Bowditch  QCA 157. Either an increased head sentence for the most serious offence could be imposed to reflect the totality of all the offending, or cumulative or partly cumulative sentences, could be imposed, moderated to reflect totality.
I would take the former course. The seriousness of the applicant’s offending viewed as a whole warrants a sentence of imprisonment of 5 years. To reflect that conclusion, the sentence for the offending against Ms Hesketh should be increased to 5 years.
If I was sentencing as at the date on which the learned sentencing judge did, I would make the same declaration as to time served and set the same parole eligibility date as did the learned sentencing judge.
As the result of my analysis is that I do not form the view that some other sentence is warranted in law than that which was imposed below, the orders I would make are as follows:
The application for leave to appeal should be allowed.
The appeal should be dismissed.
- Published Case Name:
R v Tom
- Shortened Case Name:
R v Tom
 QCA 218
Philippides JA, Boddice K, Bond J
18 Sep 2018
No Litigation History