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  • Unreported Judgment

R v Brown

 

[2020] QCA 69

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brown [2020] QCA 69

PARTIES:

R

v

BROWN, Lyndon James

(appellant/applicant)

FILE NO/S:

CA No 299 of 2018

DC No 186 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 26 October 2018; Date of Sentence: 29 October 2018 (McGill SC DCJ)

DELIVERED ON:

15 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2019

JUDGES:

Sofronoff P and Fraser and McMurdo JJA

ORDERS:

  1. The appeal against conviction is dismissed.
  2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where a group of men including the appellant attended at the unit complex where the complainants resided, armed with objects – where the appellant struck the first complainant with a spanner on the side of her head and on her left shoulder – where the appellant and the other men then attacked the second complainant using the objects with which they were armed – where the appellant was found guilty by a jury of an offence of assault occasioning bodily harm whilst armed (count 1) and an offence of doing grievous bodily harm with intent to do grievous bodily harm (count 2) – where there were some inconsistencies in eyewitness evidence identifying the appellant as one of the attackers – whether the jury’s verdicts were “unsafe and unsatisfactory” or “unreasonable”

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where a police officer said in his evidence that he and other officers were at the Probation and Parole Office in Ipswich where the appellant had an appointment to attend when they arrested the appellant – where counsel for the appellant applied for the jury to be discharged on the ground that the evidence implied that the appellant had previously been placed on probation or had been in prison and was on parole – where the trial judge declined to discharge the jury – where the trial judge directed the jury to ignore the evidence as it was irrelevant and inadmissible and not to speculate about why the appellant was at the Probation and Parole Office – whether the identified risk of prejudice as a result of the improperly adduced evidence could sufficiently be addressed by appropriate directions – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to 10 years and two months’ imprisonment on count 2 and to a concurrent term of four years’ imprisonment on count 1 – where the sentence on count 2 attracted the automatic declaration that it was a serious violent offence – where the evidence showed the attack was an exercise in deliberate and vicious violence against innocent, unarmed and unresisting complainants – where the appellant expressed no remorse – where the complainants suffered ongoing adverse physical and mental problems as a result of the attacks – where the appellant had a criminal history including previous offences involving violence – whether the sentence was manifestly excessive

Criminal Code (Qld), s 668E(1)

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited

R v Barclay [2018] QCA 175, considered

R v Pearson [2015] QCA 157, cited

COUNSEL:

The appellant/applicant appeared on his own behalf

D Balic for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Fraser JA.
  2. [2]
    FRASER JA:  The appellant was found guilty by a jury of an offence of assault occasioning bodily harm whilst armed (count 1) and an offence of doing grievous bodily harm with intent to do grievous bodily harm (count 2).  He was sentenced to 10 years and two months’ imprisonment on count 2 and to a concurrent term of four years’ imprisonment on count 1.  The sentence upon count 2 attracted the automatic declaration that it was a serious violent offence, with the consequence that the appellant will not be eligible for parole until he has served 80 per cent of that term.  The appellant appeals against his convictions on the grounds that (ground 1) the trial judge erred in refusing applications to discharge the jury and (ground 2) the verdicts were unsafe and unsatisfactory.  The appellant seeks leave to appeal against his sentence on the ground that it is manifestly excessive.
  3. [3]
    At the hearing of the appeal the appellant appeared for himself.  He did not make any submissions.  The respondent relied upon its written outline of submissions.
  4. [4]
    The appellant was charged with the offences jointly with his father and another person, Cricket Walden.  The trial proceeded in October 2018 only against the appellant and his father.  The jury found the appellant’s father not guilty of both counts and not guilty of doing grievous bodily harm in the alternative to the more serious charge in count 2.  The appellant did not challenge evidence in the Crown case that on 19 March 2017 a group of men arrived with Ms Walden at the driveway of the unit block in Booval where the complainant in count 1, Tahlea Fagan, and the complainant in count 2, Christopher Shersby, resided.  Nor did the appellant challenge the evidence in the Crown case that one of the men assaulted Ms Fagan and did her bodily harm and that some of the men assaulted Mr Shersby and did him grievous bodily harm.  The unchallenged evidence compels the conclusion that whoever assaulted Mr Shersby did so with the intent of causing him grievous bodily harm.  The real issue at the appellant’s trial was whether the Crown proved beyond reasonable doubt that the appellant was the man who assaulted Ms Fagan and one of the men who assaulted Mr Shersby.
  5. [5]
    Melissa Ray, who lived in the same unit complex as the complainants, gave evidence that she had known the appellant for a couple of months before the attacks occurred on 19 March 2017.  During the morning that day she drank about two mixed alcoholic drinks.  In the afternoon the appellant arrived at the unit building with his girlfriend, Ms Walden, and others.  Ms Ray had a physical fight with Ms Walden.  Ms Ray recalled being kicked by the appellant from behind.  The visitors left after neighbours came to the assistance of Ms Ray.  Ms Ray also gave evidence of telephone conversations after those events between herself, the appellant, and Ms Walden.  At one stage the phone was on loudspeaker and a conversation was recorded.  The recording was made an exhibit and played to the jury.  The most relevant parts of the recording are reflected in the appellant’s admissions described in [15] of these reasons.
  6. [6]
    Ms Ray gave evidence that a group of people arrived after dark when she, the complainants and others were outside their units.  She saw the appellant, the appellant’s father, two other men, and Ms Walden.  Ms Ray said that the appellant was wearing a white shirt.  She ran to her unit.  She saw the appellant and others “all going at Chris”, which she explained meant that they were hitting him.  All of the assailants hit him with something in their hands.  She couldn’t see what was in their hands.  In cross examination she denied that from where she was looking out the front window of her unit she could not see.  She acknowledged that she had told police that she could not see very well.  She denied a suggestion that the appellant did not attend at the unit block on that day at all.
  7. [7]
    Ms Fagan lived in a unit with her child.  Mr Shersby was her partner at the time and was at her unit on the day in question.  She gave evidence that in the afternoon she saw Ms Ray with blood on her face.  Later, she thought between 6.00 pm and 6.30 pm, she and others ran outside after they heard a big noise and someone yelled “They’re fucking coming”.  Ms Fagan and Mr Shersby were left locked outside after others, including Ms Ray, had returned to their units.  Ms Fagan recognised the appellant.  She had met him some seven years earlier.  All of the men who arrived were armed with objects.  One of the men had a pole, which was the size of a baseball bat, and one had a hammer.  The appellant had a spanner.  He struck her with the spanner on the side of her head and on her left shoulder.  As a result of being hit with the spanner she “blanked out” but she was not unconscious.  The appellant and the man she thought was his father went straight down to Mr Shersby.  Mr Shersby tried to defend himself but because there were so many men “they got into him pretty bad, hit him in the head with a hammer, and then he dropped”.  The men continued hitting him whilst he was on the ground.  The group hitting him included the appellant and his father.  There were three men in addition to the appellant and his father.  Ms Fagan saw Mr Shersby being hit in the head with a hammer, kicked, and hit with the “bat”.  The appellant and his father had Mr Shersby on the floor and “they were down on” him.  She saw the appellant and other men “getting stuck into” Mr Shersby with their weapons.  She saw the appellant give a gun to his father.
  8. [8]
    After Ms Fagan recovered from feeling “all funny” after being hit with the spanner, she ran straight down to Mr Shersby because he was on the ground “getting belted”.  When the group was hitting Mr Shersby the appellant yelled out, “I’ll fucking kill you”.  The hitting went on for a few minutes.  It ended when Ms Fagan’s neighbour, Margaret, “jumped off a two storey building … and told them to leave him alone.”  Ms Fagan gave evidence that all of the men were in black.  The appellant was all in black with a black hoodie.  In cross examination Ms Fagan acknowledged it was dark.  She said that it wasn’t “dark dark”.  The lights in a garden adjacent to the driveway where the assaults occurred were on.  She denied that the appellant was wearing a white t-shirt.  She denied a suggestion that the appellant had never attended the unit on that day.
  9. [9]
    Margaret Chand gave evidence that she lived with her son in a unit above the unit occupied by Ms Fagan and Mr Shersby.  She heard a really big noise in the evening and later she saw two men bashing Mr Shersby.  She heard them say, “Just bash him, bash him and kill him”.  She did not know the men.  They were wearing black clothes and she could not see them properly.  Each of them was holding “big iron” and beating Mr Shersby on his head.  One of the men said, “Just beat him, beat him and kill him”.  Ms Chand told him to stop doing that and said she was calling the police.  The men then ran from the driveway.  It was really dark that evening but it was light on the driveway from the garden lights.  She was able to see a little bit.  She thought the two men hit Mr Shersby six or seven times or more.  After she started watching the assault continued for three to five minutes.  When the men left she saw another man on the road.  He was wearing a white t-shirt and brown shorts.  It was put to Ms Chand in cross examination that she stood on the second floor for the entire time that the beating of Mr Shersby was going on.  She agreed.  She denied that she had not jumped off the balcony and said that she did.
  10. [10]
    Ms Chand’s son, Rajeev Chand, gave evidence that in the afternoon of 19 March 2017 he saw Ms Walden and Ms Ray fighting in the driveway and he also saw a man there.  After the fight they left after saying they would be back.  That was between about 4.00 pm and 5.00 pm.  Later that day, at about 6.00 pm, he saw Ms Walden and the same man return with another person.  They were all wearing dark coloured clothing.  Only “Tee and Chris” were outside the units.  He saw the two men walking with a baseball bat and something tucked down their back.  Ms Walden was standing at the top of the driveway.  The men ran up the driveway and disappeared after Ms Walden called out, “The cops are coming, let’s go”.
  11. [11]
    Mr Shersby gave evidence that he had no memory of anything that happened on the night of 19 March 2017 or of anything earlier in the day.  He suffered from memory loss which affected both his past and present memory.  A doctor gave evidence about Mr Shersby’s injuries.  Ambulance officers at the scene had recorded that Mr Shersby’s score on the Glasgow Coma Scale was 10 and that it subsequently dropped to five.  He was deeply unconscious and unable to breathe without the assistance of a breathing tube.  His skull was smashed both across the face and across the left side of his head.  The CT brain scan revealed that there was air in the brain, which meant a skull fracture and a cut in the skin had allowed air to go in.  There were small bleeds within the brain tissue and blood in the lining of the brain between it and the skull.  A significant amount of force would have been required to cause those injuries.  Mr Shersby was sedated and the breathing tube remained in until 29 March 2017, when it was determined that he could be de-sedated and was sufficiently alert for the tube to be removed.  He was discharged on 17 April 2017.  Mr Shersby would likely have died but for the medical treatment he was given.
  12. [12]
    A police officer, Officer Hough, gave evidence that in the afternoon of 19 March 2017 he spoke to Ms Ray at the unit block.  She was distressed and had some scratches to her face.  She did not make a complaint.  Officer Hough attended the same unit block with another officer, Officer Kelly, at about 9.00 pm.  Officer Kelly gave evidence that she saw a lot of blood splatters leading to one of the units.  In the unit she saw Ms Fagan with some redness and swelling to her face and Mr Shersby lying on the couch with a lot of swelling and bruising to his jaw and cheeks.  Mr Shersby was slipping in and out of consciousness and unable to talk in full sentences.  A police officer with a degree in forensic science gave evidence that a pair of shoes seized from the appellant tested positive in a presumptive test for haemoglobin.  The officer acknowledged that haemoglobin was an ingredient in all forms of mammal blood and the tests might indicate something other than blood, such as bleach, yeast, soil, or rust.
  13. [13]
    An admitted summary of telephone calls and messages disclosed many communications between Ms Walden’s phone and the phone registered to the appellant’s mother during the afternoon, evening, and night of 19 March 2017.  A series of communications occurred between 3.30 pm and 5.30 pm when the phone registered to the appellant’s mother was located at Mt Ommaney Shopping Centre.  Immediately following those communications there were communications from shortly after 6.00 pm until about 10.43 pm when the appellant’s mother’s phone was located variously at Ipswich South, Ipswich, Wacol, Redbank, and Riverview.  A message sent from the phone registered to the appellant’s mother at about 8.35 pm when the phone was located at Redbank reads, “Hey brother it’s Briany please return call I need backup”. (Ms Ray gave evidence that the appellant was known by the nickname “Brownie”.)
  14. [14]
    The appellant gave evidence in which he denied that he had committed the offences.  He said that when the offences were committed he was at his residence at Chapel Hill in Brisbane.  The red mark found on his shoes was from a blister just above his ankle.  He did not attend the unit block in Booval at all on 19 March 2017.  In cross examination the appellant said that before he arrived home at about 3.30 pm or 4.00 pm he had been to the Indooroopilly Shopping Centre and then the Mt Ommaney Shopping Centre.  He denied that he had been at the unit complex in Booval.
  15. [15]
    He agreed that his voice was on the recording of a telephone conversation with Ms Ray.  He was at the shopping centre with Ms Walden and his mother when he had that conversation.  He explained references by Ms Ray in the conversation to a fight as her “blabbering on about a fight I didn’t even know about”.  He denied having made threats in the telephone conversation and referred to the threats being made by a person in the background when the phone must have been on speaker.  He added that he said “a few things, but it wasn’t intentional” and he “didn’t threaten anyone in – specific”.  It “was just a spur of the moment thing” that wasn’t intentional.  He could not recall having threatened to cave someone’s skull in.  He agreed that he had threatened to kick someone’s head in and he had called them a “fucking dog”.  The appellant agreed that he said, “Come on then.  Where are you?  Come and beat me, you fucking dog”.  He was asking for a fight with his knuckles.  He agreed that in a “spur of the moment thing” he threatened to go back around to their house and said “I’ll come to your fucking house if she doesn’t meet me somewhere with that cunt there, I’m telling you”.  He agreed that after Ms Ray said “Are you threatening to come back around?” he said, “I will come to your fucking house if she doesn’t meet me”.  The appellant ultimately agreed that he did threaten to go there.  He denied that he had been there earlier in the day, that he had left to get some backup and muscle, that he had got his father and other people and they had armed themselves with weapons, and that he had gone back to the house to seek revenge because of an incident involving his girlfriend.  The appellant denied that he had struck Ms Fagan with a spanner, that he had struck Mr Shersby, and that he had yelled out to bash him or kill him.
  16. [16]
    The contention in ground 2 of the appeal that the verdicts are unsafe and unsatisfactory comprehends reliance upon the ground of appeal in s 668E(1) of the Criminal Code that the verdict is “unreasonable”.  Upon reviewing the record I did not find any other basis for a contention that the verdicts are unsafe and unsatisfactory.  The ground that the verdict is unreasonable requires the Court to make an independent assessment of the sufficiency and quality of the evidence and to decide whether upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences of which he was convicted.[1]  If, after “making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence”.[2]  In R v Baden-Clay[3] the High Court observed that, “Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”
  17. [17]
    There are weaknesses in the evidence given by Ms Fagan and Ms Ray identifying the appellant.  Those weaknesses were carefully described in the trial judge’s summing up.  The trial judge gave clear directions to the jury explaining why they should be cautious in acting upon the visual identification evidence given by the witnesses.  The trial judge acknowledged that the Crown case depended heavily on the accuracy of their evidence and remarked that the jury could also take into account other evidence which the jury might think provided some support for their identification.  The trial judge warned the jury of the special need for caution before convicting in reliance on the correctness of the identification.  He gave conventional directions upon that topic.
  18. [18]
    The jury evidently applied those directions in their acquittal of the appellant’s father.  Towards the end of the cross examination of Ms Fagan by counsel for the appellant’s father, she agreed that on the night of the attack she had told police that she remembered the appellant and his girlfriend but that she wasn’t sure who else was there with them.  When it was put to her that she did not actually see anybody on the night that she was able to recognise she at first agreed, but in response to further questioning she repeated her earlier evidence that she had seen the appellant.  She said that she had never met the appellant’s father but had previously met the appellant at a shop.  She added that she had seen “Michael there that night and I had been told by other people that that was Lyndon’s dad”.  That evidence damaged the persuasive force of her identification of the appellant’s father as one of the men who hit Mr Shersby.  Her evidence in cross examination that she had told the police officer at the scene that she remembered the appellant and his girlfriend was consistent with her evidence in chief that she knew the appellant from having met him previously at a shop, she saw the appellant hit her with a spanner, and she ran down to Mr Shersby because the appellant and others in the group were assaulting him on the ground.
  19. [19]
    The jury could resolve the difference between Ms Ray’s evidence and the evidence of Ms Fagan about the colour of the clothing worn by the man identified as the appellant in a number of ways, including by accepting Ms Fagan’s evidence on the point and rejecting Ms Ray’s.  Upon the evidence Ms Fagan was well placed to observe her assailant and those who attacked Mr Shersby.  Her evidence that the appellant was wearing black clothing, in common with all of the men, was consistent with the evidence of Ms Chand and Mr Chand that the men were wearing black or dark clothes.
  20. [20]
    Importantly, the eyewitness identification evidence derives circumstantial support from the combined effect of the evidence in the recording of the threats made by the appellant and from the admitted telephone records, from which the jury could infer that the appellant had sought “back up” at a time when, contrary to his own testimony, he was in the vicinity of Redbank or Wacol.  Taking that into account together with the stark inconsistency between the appellant’s initial denials in cross examination that he made threats in the recorded telephone conversation and his subsequent admissions that he made repeated and apparently serious threats, the jury could readily conclude that his evidence should be given no weight where it was not supported by other evidence.  Also bearing in mind the centrality of the jury’s role in the trial and its advantage in seeing and hearing the evidence unfold at the trial, the jury could reasonably find upon the whole of the evidence that, notwithstanding the appellant’s sworn denials, the Crown proved beyond reasonable doubt that he was guilty of both offences.
  21. [21]
    The other ground of the appeal against conviction, that the trial judge erred in refusing applications to discharge the jury, concerns an application made during otherwise uncontroversial evidence given by a police officer, Officer Dixon.  Towards the start of his evidence he was asked what he did on 22 March 2017 when he commenced his investigations.  In the course of his answer he conveyed that he and other officers were at the Probation and Parole Office in Ipswich where the appellant had an appointment to attend.  When the appellant arrived he was stopped by Officer Dixon and other police officers from entering the office and arrested.
  22. [22]
    The jury was sent out and counsel for the appellant applied for the jury to be discharged upon the ground that the evidence implied that the appellant had previously been placed on probation or, at worst, had been in prison and was on parole.  Counsel for the appellant acknowledged that the evidence was unexpected and the prosecutor had not done anything wrong.  He argued that the defence had been conducted in a way which ensured that there was no real attack on the character of the Crown witnesses, including by the deliberate omission to cross examine any of the prosecution witnesses about their previous criminal histories.  He submitted that the defence had lost a significant tactical and forensic advantage and in those circumstances the jury should be discharged in respect of the appellant.
  23. [23]
    The trial judge ruled against the application.  The trial judge accepted that the evidence was irrelevant and could well give rise to an inference that the appellant had been convicted of a criminal offence which resulted in his being on probation or on parole.  After discussing relevant authorities upon the topic, including R v Pearson,[4] the trial judge concluded that the evidence was not so damaging that a fair trial could not be achieved if an appropriate direction was given to the jury.  The jury returned and the trial judge gave the following directions.  The evidence was irrelevant, inadmissible and should not have been given.  The trial judge reminded the jury that they each took an oath or affirmation to try the charge conscientiously on the evidence and to decide it according to the evidence.  As the trial judge had told the jury at the beginning of the trial, they were to decide the case on the evidence and only on the evidence.  What the police officer said was not evidence.  The trial judge added a “specific direction” that the jury was to ignore what the police officer said about the defendant attending an appointment at the Probation and Parole Office, the jury should not speculate about why the defendant might have been going to that office, and the jury “should put the whole thing out of your minds completely”.  It was irrelevant to the deliberations the jury would undertake in the course of deciding whether the appellant was guilty of either of the specific charges in the trial.  The trial judge then repeated the directions to ignore the evidence the witness gave just before lunch and to disregard it completely.  The trial judge then stated that the witness should be brought back so that they could continue “with some relevant evidence”.
  24. [24]
    The trial judge correctly framed the issue as being whether the identified risk of prejudice as a result of the improperly adduced evidence could sufficiently be addressed by appropriate directions so as to ensure that the jury’s decision would not be affected by any adverse inference from the evidence.[5]  The directions given by the trial judge comprehensively and powerfully conveyed to the jury the irrelevance and inadmissibility of the evidence and the jury’s duty to disregard it completely.  The directions were made more effective by the repetition of the key points.  The concluding admonition by the trial judge that the trial should proceed with “relevant evidence” underscored the jury’s duty to disregard the evidence.  I would accept the submission for the respondent that the directions were apt to ensure that the evidence would not lead the jury to draw any adverse inference that might affect their verdicts.  The evidence was irrelevant, inadmissible, and prejudicial, but the trial judge’s prompt and effective directions neutralised the prejudice and avoided a miscarriage of justice.
  25. [25]
    I would dismiss the appeal against conviction.
  26. [26]
    In the sentencing remarks, the trial judge found that on the evidence there was nothing to suggest that either complainant was anything other than an innocent bystander.  The appellant struck Ms Fagan on the side of her head with the spanner when there was no provocation or justification for that action and he caused significant injury to her.  The appellant and at least one other person who was also armed attacked Mr Shersby and persistently beat him about the head.  After he went to the ground and attempted to crawl away the attack continued until another resident at the unit block called out that she had called the police, and the appellant and his supporters then desisted.  The text message sent by the appellant earlier in the evening asking for back up showed that this was a planned attack.  It was an exercise in deliberate and vicious violence by the appellant in company with other armed people and a sustained and vicious attack against innocent, unarmed, and unresisting complainants.  When spoken to by police the appellant denied the offence and he gave evidence denying the offence at trial.  There was no remorse on his part.
  27. [27]
    In addition to the physical injuries sustained by Ms Fagan she understandably suffered anxiety.  Mr Shersby suffered very serious head injuries.  He would have died had it not been for the prompt action of paramedics and his subsequent treatment.  He suffered very significant skull fractures, including severe damage to an eye socket and other fractures which led to bleeding within the brain and between it and the surrounding area of the skull.  The air inside the skull was an indication of the severity of the injuries.  Mr Shersby was hospitalised, including for a significant period when he was kept alive by a breathing tube.  He suffered significant ongoing adverse physical and psychological effects, including brain damage, continuing blurred vision in the left eye, difficulty with concentration and memory so that he is unable to work, drive a car or socialise properly, and interference with his senses of taste and smell.  He had quite severe lasting and probably permanent adverse injuries from the attack.  (I note that amongst the physical and emotional symptoms Mr Shersby describes in his victim impact statement he refers also to his inability to have a full night’s sleep, constant headaches, anxiety and facial tics when around a lot of people, frequent depression, and forgotten memories.  He refers also to understandable difficulties within his family resulting from his moods and memory.)
  28. [28]
    The appellant was 24 at the date of the offending and 26 at sentence.  His criminal history showed that he had spent much of the time after he turned 17 in prison.  In 2011 he was given concurrent sentences of nine months’ imprisonment and six months’ imprisonment for assault occasioning bodily harm whilst armed and in company and three counts of common assault.  In 2014 he was given an effective head sentence of four years’ imprisonment for two counts of assault occasioning bodily harm whilst armed and in company and two counts of assault occasioning bodily harm and some other offences.  Those offences involved examples of quite severe gratuitous violence.  The appellant was on parole when he committed the subject offences, which was an aggravating factor.  The sentencing judge took into account in the appellant’s favour his pleas of guilty.
  29. [29]
    The sentencing judge observed that a purpose of sentencing was to provide conditions which would help the appellant to be rehabilitated and remarked that this was going to take some time.  Personal deterrence was important in light of the appellant’s criminal history and general deterrence was important given the nature of the offending and the complainants’ circumstances.  The sentencing judge considered that a notional head sentence of 11 years’ imprisonment for count 2 was appropriate bearing in mind the overall criminality, and that should be reduced by 10 months to take account of nine and a half months the appellant spent serving the balance of the sentence imposed in January 2014 as a result of having breached his parole under that sentence by the subject offending.  The resulting sentence of 10 years and two months’ imprisonment attracted a mandatory serious violent offence declaration, pursuant to which the appellant is required to serve 80 per cent of the term before becoming eligible for parole.  The sentencing judge remarked that a serious violent offence declaration would in any event have been made in the circumstances of the case if it were not mandatory.  The period of 296 days the appellant spent in pre-sentence custody solely in relation to the subject offending was declared to be imprisonment already served under the sentence.
  30. [30]
    A notional head sentence of 11 years’ imprisonment is severe notwithstanding that it takes into account both offences, but I would accept the respondent’s submission that the sentence is consistent with guidance that may be derived from comparable cases.
  31. [31]
    The respondent referred to R v Barclay,[6] R v Latemore,[7] R v Keen,[8] and R v Mitchell.[9]  The sentence of seven years’ imprisonment with a serious violent offence declaration which was upheld in Mitchell concerned a less serious offence with less significant adverse consequences for the victim.  That decision is not very useful here as a comparable sentence.  The appellant’s sentence derives support from Barclay, in which the Court found that there was no underlying merit in a proposed application for leave to appeal against a sentence of 10 years’ imprisonment for the same offence as was committed by the appellant in count 2 in this case.  That offender inflicted grievous bodily harm upon his victim by striking him repeatedly with a branch and fists, including while the victim was being held down, in a home invasion in company pursuant to a plan to torture the victim to force him disclose the location of drugs and money.  The circumstances are broadly comparable with those in the present case, in which the appellant first struck an innocent bystander with a spanner, causing bodily harm, and then joined with armed co-offenders in a violent attack upon a second innocent bystander, and persisted in that attack despite the complainant having been felled to the ground and rendered helpless by blows in the head with a hammer.  The permanent consequences to the victim in Barclay seem similar or somewhat more serious, he having been left blind in one eye, facially deformed, and unable to chew without discomfort as well as suffering headaches and chronic pain.  The appellant’s notional sentence of 11 years’ imprisonment is consistent with the sentence in that case, particularly bearing in mind that Barclay concerned a 21 year old offender who came from a remote indigenous community, had a disadvantaged upbringing and background, and had cooperated with the administration of justice by pleading guilty.
  32. [32]
    The sentence imposed on appeal in Latemore was nine years’ imprisonment with parole eligibility after four years.  The offender was a 51 year old man with a less serious criminal history than the appellant’s.  His offence was also objectively less serious in that he was not in company and the assault was not sustained; he struck the complainant twice to the head with a two foot long metal pole.  The consequences of the assault for the victim were worse than in this case.  The sentence in that case is reconcilable with the appellant’s sentence particularly by reference to the objectively less serious circumstances of the assault, that offender’s plea  of guilty (albeit a late plea) and findings in his favour that he was genuinely remorseful and had good prospects of rehabilitation.
  33. [33]
    In Keen the comparable notional sentence was nine and a half years imprisonment with a serious violent offence declaration.  The Court found the sentence was not manifestly excessive.  The offender, whose criminal history was more extensive but not much more serious than that of the appellant, struck his victim in the face with a samurai sword three or four times.  A zip tie was also put around the victim’s neck and two zip ties on each wrist, and it appears that he was again assaulted in other ways.  The consequences for the victim included short and long term memory loss, an inability to work in his trade, the loss of all but five of his teeth, a loss of feeling in his face which caused him to dribble when he ate or drank, and a loss of night vision and 40 per cent of the vision in one eye.  The sentence is reconcilable with that imposed upon the appellant particularly by reference to the circumstance that it was imposed upon a 23 year old man who pleaded guilty.

Proposed orders

  1. [34]
    I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.
  2. [35]
    McMURDO JA:  I agree with Fraser JA.

Footnotes

[1]MFA v The Queen (2002) 213 CLR 606 at 614 – 615; SKA v The Queen (2011) 243 CLR 400 at 406, 408.

[2]MFA v The Queen at 623 – 624, quoting from M v The Queen (1994) 181 CLR 487 at 494.  See also Pell v The Queen [2020] HCA 12 at [9].

[3](2016) 258 CLR 308 at 329 [65].  Internal citations have been omitted.

[4][2015] QCA 157.

[5]See R v Pearson [2015] QCA 157.

[6][2018] QCA 175.

[7][2016] QCA 110.

[8][2015] QCA 97.

[9][2006] QCA 240.

Close

Editorial Notes

  • Published Case Name:

    R v Brown

  • Shortened Case Name:

    R v Brown

  • MNC:

    [2020] QCA 69

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, McMurdo JA

  • Date:

    15 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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