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  • Unreported Judgment

R v MCZ

 

[2018] QCA 240

COURT OF APPEAL

 

FRASER JA

PHILIPPIDES JA

McMURDO JA

 

CA No 60 of 2018

DC No 672 of 2017

 

THE QUEEN

 

v

 

MCZ

Applicant

BRISBANE

 

THURSDAY, 27 SEPTEMBER 2018

 

JUDGMENT

 

FRASER JA:  The applicant pleaded guilty to endangering particular property by fire (count 1), and causing grievous bodily harm (count 2); each offence being a domestic violence offence.  The applicant was sentenced to concurrent terms of imprisonment of three years on count 1 and seven years on count 2 with parole eligibility after two years, including 362 days of pre-sentence custody declared to be time already served under the sentence.  The applicant seeks leave to appeal against sentence.  The applicant abandoned three grounds of appeal that contended the sentencing judge made specific errors.  The remaining ground of appeal is that the sentence is manifestly excessive in the circumstances.

The sentence proceeded upon an agreed statement of facts.  The 67 year old applicant and the 64 year old complainant had been in a de facto relationship for about 30 years.  On an evening in February 2017, the applicant walked into their house in Cairns holding a bottle of whiskey in his hand.  He looked at the glass of wine the complainant was holding while she watched TV and he smashed his whiskey bottle against a brick column.  The applicant accused the complainant of being an alcoholic.  He shouted and the complainant became frightened and left the room.

The applicant threatened to burn the house down, as he had previously threatened to do.  The complainant asked him, “Well why don’t you fucking do it then?”  She became increasingly frightened and ran into a bathroom.  The applicant went to a shed about 10 to 15 metres from the house and collected a can of whipper snipper fuel.  He manually lifted a garage roller door to gain entry to the part of the house where the complainant was then sitting on the toilet.  The applicant stood about two steps in front of the complainant, took a step towards her, poured about 900 millilitres of the fuel onto the floor in front of the complainant’s feet and lit the fuel with a lighter.

The complainant tried to run out of the bathroom.  She fell over with her legs in the flames.  The applicant dragged the complainant through and away from the fire and left her on the hallway floor.  The complainant walked out of the house and hosed water over her legs and shoulder.  She saw skin falling off her legs.  The complainant asked the applicant to ring an ambulance.  He told her she was okay and did not need an ambulance.  A neighbour called an ambulance and rendered assistance.

The complainant suffered 18 per cent total body surface area burns.  There were deep dermal and full thickness burns to her back and both lower legs and feet.  She underwent surgery three times over about three weeks.  Without treatment, the extent of her burns would have been likely to endanger her life because of overwhelming infection, and would have left her with severe hypertrophic scars and scar contractures causing a permanent mobility restriction.  She developed bilateral hypertrophic scars of her feet, for which she may require further surgery.  She had regular ongoing treatment for scar management, pain management, physiotherapy and occupational therapy.  At the time of sentence, the complainant’s long-term prognosis was expected to remain unknown until at least two years after the injury.

The applicant suffered a second degree burn on his right leg.  He made admissions to police.  The applicant also said that the complainant had been tormenting him for a week about financial matters, and he spoke about her drinking and he would not have committed the offending if the complainant had not told him to do so.  He made the incorrect claims that he poured only a bit of the fuel on the floor and he poured it in the middle of the bathroom, about a metre or so away from the complainant.  The applicant acknowledged that the flames were about a metre and a-half off the ground.  He made conflicting statements about why he lit the fire.  He accepted that the complainant’s injuries were his fault.

In the victim impact statement, the complainant referred to horrendous and unbearable pain from her injuries.  She had not wanted to live but strived to do so for her family’s sake.  She saw a psychiatrist and was given a mood stabilising drug.  She required frequent physiotherapy to walk again.  She was given assistance with day-to-day activities by an occupational therapist.  She felt she had to leave her life and friends in Cairns.  She went to live with her daughter who is a nurse and supervised her medicine and changes of her dressings.

Ten months after the incident, the complainant still had nerve pain, could not stand for any length of time, lived with her daughter and family, could not work, had permanent scars from the skin grafts, was unable to walk properly because of injury to her foot, and attended hospital and therapy appointments regularly.  A doctor stated that at the complainant’s last review she was still wearing a compression vest and had thick itchy scars on her right scapula.  She had bilateral hypertrophic scars on her feet.  The scar contractures had lifted the left toes out of their correct anatomical alignment and she would require a splint.  It was likely that the complainant would require ongoing scar management, including possible surgery for the correction of scar contractures, but the doctors were seeking to avoid surgery by other treatment which would likely be ongoing for up to two years from the date of the injury.

The applicant had a dated and minor criminal history.  The only relevant offence is a breach of a domestic violence order in 2001, for which he was fined with no conviction recorded.  The applicant argues that the appropriate sentence for the grievous bodily harm count is five years imprisonment with a parole eligibility date set after the applicant has served one-third of that term.  He argues that the sentencing judge gave too much weight to the physical harm done to the complainant, failed adequately to take into account the applicant’s antecedents, and failed adequately to take into account that the applicant was being sentenced for causing grievous bodily harm rather than causing grievous bodily harm with intent to do so.

The applicant’s argument that the sentencing judge gave too much weight to the physical harm done to the complainant is based in part upon an incorrect submission to the sentencing judge by the prosecutor that R v Amituanai (1995) 78 A Crim R 588 decided that:

“It essentially is really the injury that dictates the criminality or the damage sustained by a complainant which dictates penalty in grievous bodily harm matters, at least where the injury is foreseeable.”

In Amituanai, Thomas and White JJ agreed with an observation by Pincus JA that when an offender inflicts serious violence to the head of another, the risk of catastrophic results must be shared by the offender as well as the victim.  Pincus JA also observed that whilst “[s]pecial considerations may arise where a blow is struck which produces consequences of a kind which are quite beyond the range of reasonable expectation”, in other cases “the offender will find that his punishment may depend upon the extent of the damage the victim happens to sustain”.

That latter observation was accurately reflected in a submission to the sentencing judge by the prosecutor.  The prosecutor also accurately cited the observation of Dalton J, McMurdo P and Muir J agreeing, in R v Parker [2011] QCA 198 at [17] that:

“generally speaking, where a complainant is left with a substantial residual disability, the offender can expect to receive a more severe penalty.”

There was no error in the sentencing judge’s reliance upon the extent of the injuries suffered by the complainant as a basis for distinguishing this case from other cases relied upon as comparable sentencing decisions.  The sentencing judge did not adopt the prosecutor’s incorrect summary of Amituanai and correctly identified as an important sentencing consideration the nature and extent of the damage to the complainant in circumstances where her injuries were foreseeable.

The applicant’s argument that the sentencing judge failed to accurately take into account the applicant’s antecedents appears to be based upon the sentencing judge’s remark that the applicant’s prior conviction for breach of a domestic violence order showed that his behaviour in this case was “perhaps not so completely out of character”.  That is a partial quote of a sentence which begins with a reference to the conviction being “old” and concludes with a remark to the effect that the seriousness and the lengths to which the applicant went on this occasion were out of character.  Those statements were made immediately after the sentencing judge referred to the applicant’s domestic relationship with the complainant, and noted that the applicant’s criminal history was dated.

The sentencing judge also referred to the complainant having a limited education, having worked very hard, being a retired pensioner, and being the beneficiary of a very favourable reference written by a friend.  There is no substance in the applicant’s argument that the sentencing judge did not adequately take the applicant’s antecedents into account.

The applicant’s argument that the sentencing judge failed to adequately take into account that the applicant was being sentenced for grievous bodily harm rather than for grievous bodily harm with intent is based, in part, upon the fact that one of the two decisions upon which the prosecutor relied at sentence, R v Wentworth [1996] QCA 534, concerned a sentence of nine years imprisonment with parole eligibility after three and a-half years for offences which included an offence of doing grievous bodily harm with intent.

That offender poured petrol over the victim and her new partner, and unsuccessfully tried to light the petrol as part of a course of vicious and menacing conduct.  The sentencing judge did not cite that decision, and there is no basis for concluding that it was inappropriately taken into account.  Nothing in the sentencing remarks suggests the surprising conclusion that the sentencing judge did not appreciate that the applicant fell to be sentenced for causing grievous bodily harm simpliciter.  Otherwise, this aspect of the applicant’s argument appears to reflect a conclusion suggested by the applicant’s submission that comparable sentencing decisions reveal that the sentence is manifestly excessive.

The only real question in the application is whether, having regard to the circumstances of the offence and the offender’s personal circumstances, the sentence is manifestly excessive.  In addition to the applicant’s obviously dangerous conduct in starting a fuel fire close to the complainant in a confined space, the predictable seriousness of the complainant’s resulting injuries and the other circumstances already mentioned, the significant circumstances are the sentencing judge’s acceptance that the applicant was genuinely remorseful, apologetic and ashamed of his offending; the applicant cooperated with the police and prosecution; he entered a plea of guilty; he was otherwise of good character; imprisonment, particularly his pre-sentence custody, was found to be harder for the applicant than for others; and his risk of reoffending was found to be low.

As the applicant submitted, Parker was a more serious case.  He was convicted after a trial of doing grievous bodily harm by striking the complainant in the head with a hammer without warning whilst the complainant lay on his bed.  That offender’s hammer blows smashed the complainant’s skull and brain linings, leaving him with devastating injuries.  The more serious sentence in that case of eight and a-half years imprisonment reflects the more serious aspects of that case: the use of the hammer, the even greater seriousness of the injuries, and the circumstance that although that offender appeared to be immediately remorseful, he told lies about the events and could not claim the benefit of a plea of guilty or the other mitigating circumstances available to the applicant.

One of the decisions cited in Parker is R v Dietz [2009] QCA 392.  In that case, the offender caused severe neurological injury to the complainant by felling him with a punch, causing him to hit his head on the road.  That offender showed no remorse, lied to the police, cross-examined all of the witnesses at committal, and put the complainant through a four-day trial.  On the other hand, he was only 20 years old.  In this case, the sentencing judge could also regard the applicant’s conduct in committing a domestic violence offence by igniting fuel close to the complainant as being more serious than the conduct of the offender in Dietz, of delivering one punch to the head of another man in the early hours of the morning outside a nightclub.  Whereas Dietz, who went to trial, was left with parole eligibility after serving half of the six years imprisonment, the applicant is eligible for parole after serving less than one-third of his seven-year term, which takes into account the applicant’s plea of guilty and other mitigating circumstances.  Furthermore, the sentencing judge observed that the seven-year term for count 1 included a component for so much of the criminality in count 2, which did not overlap with the criminality in count 1.

The applicant submitted that manifest excess in the applicant’s sentence was demonstrated by R v Bryan; Ex parte Attorney-General (Qld) [2003] QCA 18, R v Holland [2008] QCA 200, R v BCF [2012] QCA 87, and R v Gatti [2018] QCA 98.  Gatti is of no assistance in this case, if only because the Court’s decision in that case to refuse leave to appeal against an effective sentence of seven and a-half years imprisonment for various offences, which included a malicious act with intent to cause grievous bodily harm, does not imply that a more serious sentence could not have been imposed.

In Holland, the Court refused leave to appeal against a sentence of five years imprisonment following a conviction at trial of causing grievous bodily harm with intent.  The personal circumstances of that offender were significantly worse than those of the applicant, insofar as that offender had a relevant criminal history and committed the offences whilst under a suspended sentence, but the circumstances of that offence were, in some respects, less serious than here.  The offender’s conduct in that case was a reaction, albeit a gross and unnecessary reaction to provocation by the complainant.  That offender did not use a weapon or anything akin to the fire ignited by the applicant, and the injuries suffered by the complainant in that case, a jaw broken in multiple places leaving him without feeling in the lower lip and lower jaw area, were not as severe as the injuries sustained by the complainant in this case.  Because of those factual differences, Holland supplies little guidance for the sentence in this case.

In BCF, the offence was again grievous bodily harm with intent.  The sentence was reduced on appeal from nine years imprisonment to six years imprisonment with parole eligibility after one-third of the term. But that offender was a 22 year old mother when she intentionally submerged her misbehaving 18 month son’s foot into a bowl of boiling water; she had no relevant prior criminal history; she was much younger than the applicant; and it was regarded as significant that the element of intention to do grievous bodily harm was proved by that offender’s own admissions.  BCF also sheds little light upon the appropriate sentence in this case.

Bryan was an Attorney-General’s appeal in which a sentence of four years imprisonment suspended after 12 months for an offence of doing grievous bodily harm was set aside and replaced by a sentence of six years imprisonment.  Williams JA, de Jersey CJ and Cullinane J agreeing, considered that a sentence in the range of six to seven years was the minimum that could be considered as the head sentence, and the circumstances of that case justified the making of a declaration that the offence was a serious violent one, although no such declaration was sought at sentence or on appeal.

The sentence imposed reflected a degree of moderation associated with the imposition of a sentence upon a successful Attorney’s appeal.  The offence in that case was more serious, insofar as the offender stabbed the complainant in the chest with a knife in a public place after having persistently provoked a confrontation, but the permanent effects upon that complainant, described as numbness, particularly in respect of the left lower arm and back, do not appear to have been as severe as the adverse lasting effects suffered by the complainant in this case.

The offender in Bryan was only 21 at the time of the offence, and 22 on sentence.  He pleaded guilty, albeit in an overwhelming case against him, but he lacked remorse.  Particular emphasis was placed upon the need to protect the community from such an unprovoked and vicious and cowardly attack upon an innocent passer-by in a public street with a knife.  Again, the circumstances of that case are too different from the present one to make it of much help here.

The respondent relied upon two decisions which were not referred to the sentencing judge, R v Pitt [2017] QCA 13 and R v Smith [2016] QCA 9.  In Pitt, the Court did not disturb a sentence of six years imprisonment with a serious violent offence declaration for an offence of grievous bodily harm.  The respondent pointed out that the offender in Pitt was only 18 years old and did not engage in protracted conduct using fire to cause injuries, but that offender’s assault was so violent that his victim was unable to provide a statement to police officers before she died from an unrelated incident six months later, and, in the interim, she could not even walk to a bathroom without assistance.  The decision that six years imprisonment in that different case was not manifestly excessive also supplies no real assistance in relation to the applicant’s sentence.

Smith was sentenced upon his plea of guilty to a grievous bodily harm offence to seven years imprisonment with parole eligibility after two and a-half years.  The sentence was found not to be manifestly excessive.  That 44 year old offender with a history of domestic violence offences repeatedly punched and kicked his 33 year old de facto, causing multiple facial fractures, contusions, abrasions and swelling, and an injury which would have resulted in the loss of her right eye, but for emergency surgery.  She was left with lifelong facial pain, difficulty eating hard food, loss of feeling to her face, permanent double vision when looking down, inability to run or ride motorbikes as a result of the pain, and many other significant adverse effects.

There are difficulties in seeking to compare Smith with the present case, but having regard to the circumstance that the applicant also caused very serious lifelong injuries in a domestic violence offence, as well as committing the offence of endangering property by fire, the slightly more lenient sentence in this case is not out of kilter with the sentence in Smith.  The sentencing decisions do not make good the applicant’s submission that the sentence is manifestly excessive.  I am not persuaded that in all of the circumstances, the sentence is so severe as to evidence an error in the exercise of the discretion reposed by the sentencing judge.  The sentence is not manifestly excessive.  I would refuse the application.

PHILIPPIDES JA:  I agree.

McMURDO JA:  I agree.

FRASER JA:  The order is that the application is refused.

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Editorial Notes

  • Published Case Name:

    R v MCZ

  • Shortened Case Name:

    R v MCZ

  • MNC:

    [2018] QCA 240

  • Court:

    QCA

  • Judge(s):

    FRASER JA, PHILIPPIDES JA, McMURDO JA

  • Date:

    27 Sep 2018

Litigation History

No Litigation History

Appeal Status

No Status