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- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Craske  QCA 49
CA No 11 of 2002
DC No 424 of 2001
Court of Appeal
Application for leave to appeal against Sentence
District Court at Maroochydore
1 March 2002
20 February 2002
McMurdo P, Thomas and Williams JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made.
Application for leave to appeal against sentence refused.
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM – SENTENCING – where applicant sentenced to 18 months imprisonment suspended after serving 4 months with an operational period of 2 years, for an offence of occasioning grievous bodily harm – whether the learned trial judge erred in considering himself constrained by authority to require the applicant to actually serve some time in custody.
CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PARTICULAR CASES – where the applicant had earlier been severely provoked by the complainant and kicked the complainant in the head after the complainant had fallen on the ground - R v Cuff distinguished. Application for leave to appeal against sentence refused.
R v GB & LB  QCA 46; CA No 443 & 449 of 1998, 26 February 1999, considered
R v Camm  QCA 101; CA No 431 of 1998, 1 April 1999, considered
R v Cuff; ex-parte Attorney-General of Queensland  QCA 351; CA No 151 of 2001, 22 August 2001, distinguished
R v Dodd  QCA 323; CA No 241 of 1998, 17 September 1998, considered
R v Sharpe  QCA 37; CA No 476 of 1994, 21 February 1995, considered
R v Walsh & Sayer & Thompson; ex-parte Attorney-General of Queensland  QCA 217; CA No’s 158,159 & 160 of 1998, 28 July 1998, considered
A W Moynihan for the applicant
C Heaton for the respondent
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- MCMURDO P: I agree with the reasons for judgment of Williams JA and with the order proposed.
- THOMAS JA: I agree.
- WILLIAMS JA: This is an application for leave to appeal against a sentence of 18 months imprisonment, suspended after serving 4 months, with an operational period of 2 years, for an offence of occasioning grievous bodily harm. Counsel for the applicant did not challenge the imposition of a head sentence of 18 months, but submitted that in all the circumstances of this case the sentence, taken as a whole, was manifestly excessive because the mitigating factors warranted suspending the whole of the sentence of imprisonment. By the time the matter came on for hearing in this Court the applicant had served approximately 2 months imprisonment.
- The incident occurred shortly after 12.30am on Sunday 11 March 2001 near the Esplanade at Mooloolaba. The applicant was seated with a group of his friends at a table outside a restaurant; there was his girlfriend Elise Martin, a young man named Joshua Nunan, and his girlfriend Rheanna Hazeldine. The applicant was aged 18 at the time, and the others were of comparable age. The group had been drinking but it would appear they were not significantly intoxicated.
- The complainant, Arne Van Gelderen, was a young man aged 28 at the time. He had consumed a quantity of liquor that evening at a birthday party. The material suggested that he was significantly more intoxicated than the applicant and those in his group. At the time the complainant was not wearing shoes, but had socks on his feet. The complainant approached the group including the applicant; it appears that he did not know any of the group prior to that night. The complainant spoke to the girls and his remarks were considered to be offensive. Nunan told the complainant to “fuck off” but he appears to have remained in the vicinity. There were further words exchanged and that was followed by some pushing and shoving. Initially that altercation appears to have involved Nunan and the complainant, but the applicant joined in. That was followed by the complainant seizing the applicant in a headlock and Nunan punching the complainant in an endeavour to have him break that hold. There was then more fighting between the three males. Hazeldine sought to intervene but she was struck in the face by the complainant. More punches were exchanged between the applicant and the complainant.
- At that point it appears the complainant ran across the road towards the beach; there was apparently a car park in that vicinity. The applicant chased the complainant into that car park area. The complainant then fell to the ground; it is not clear whether he tripped or whether some action by the appellant caused him to fall. Various witnesses saw the applicant standing over the complainant at that point. It was at that stage that the applicant (who was standing) kicked the complainant (who was lying on the ground) in the head – the blow which occasioned the grievous bodily harm. On all accounts there was only one kick which occasioned the injuries. The applicant was wearing what were described as “sturdy boots”.
- It was against that background that the learned sentencing judge said that the “approach to sentencing, must be tempered by me taking into account the complainant’s own conduct, which directly provoked the original physical altercation, and which, in itself, could be described as obnoxious and loutish.” Certainly the facts as presented to the court would support the conclusion that the complainant was the instigator of the altercation which occurred initially around the table where the applicant’s group had been seated.
- The complainant was conveyed to the Nambour Hospital where it was noted that his injuries included:
- Fractures to each side of the mandible with displacement of the bone fragment;
- Multiple soft tissue injuries and abrasions, including a laceration under the chin which required suturing;
- Fracture of the right great toe.
- More importantly there was swelling and air in the tissues of the neck which restricted the complainant’s breathing and was a potential threat to his life.
- An emergency operation was performed at the Nambour Hospital to provide the complainant with an artificial airway for transfer to Brisbane for repair of his fractured jaw.
- The report from the Royal Brisbane Hospital refers to a grossly displaced fracture of the right and left mandible; the fractures were reduced and fixed using titanium plates and screws and stainless wires. When reviewed in mid-April 2001 the treating doctor noted that the complainant had good occlusion but there was some persisting sensory loss in the region of the left lower lip and chin. The doctor observed that the “injury to the sensory nerve on the left lower lip may never recover normal sensation”. That report also states that if immediate steps had not been taken to secure the complainant’s airway the injuries may have been life threatening.
- Material placed before the sentencing judge indicated that the applicant had no prior criminal history. The sentencing judge was also asked to deal with a minor stealing charge which the applicant had committed in November 2000.
- It appears that the applicant had regular employment; in fact he had two jobs. He worked as a shop attendant–housekeeper at a hotel, and also worked on a casual basis for a pest exterminator.
- It was accepted that this was an “extremely timely and early plea of guilty” to an ex officio indictment. Further, the applicant had between the commission of the offence and sentence submitted himself to a course of counselling which included anger management.
- The sentencing process took place over two days, 14 and 17 December 2001. It is clear from reading a transcript of submissions on the first day that the learned sentencing judge acknowledged that a wholly suspended sentence could be imposed in appropriate circumstances for the offence of occasioning grievous bodily harm. But his Honour was concerned as to whether there was any authority that supported a wholly suspended sentence where the offence involved “kicking a person in the head when there’re down”, or where the offence involved “a kick to the head of a person who’s defenceless”. The adjournment was to enable counsel for the applicant to research decisions of the Court of Appeal on that point.
- On the adjourned hearing there was reference to a decision of this Court (R v GB & LB, CA No 443 and 449 of 1998, judgment 26 February 1999) where a wholly suspended sentence was imposed by the Court of Appeal for an offence of grievous bodily harm. The learned sentencing judge’s attention was also drawn to a case in which he himself had imposed such a sentence for such an offence. Other relevant authorities referred to by the learned sentencing judge in delivering his sentencing remarks were: Dodd, CA 241 of 1998, judgment 17 September 1998; Sharpe, CA 476 of 1994, judgment 21 February 1995, Camm, CA 431 of 1998, judgment 1 April 1999, and Walsh, Sayer and Thompson, CA 158, 159 and 160 of 1998, judgment 28 July 1998.
- One of the contentions by counsel for the appellant was that the learned sentencing judge erred in that he considered himself to be constrained by authority to require the applicant to actually serve some time in custody. In my view the learned sentencing judge did not so err. He fully recognised that in some circumstances a wholly suspended sentence would be justified for the offence of occasioning grievous bodily harm, but he was concerned as to the appropriate penalty to impose where the injury was occasioned by a kick delivered to a relatively defenceless person. Ultimately he came to the conclusion that the circumstances of this offence were such that an actual term of imprisonment should be served. Such a conclusion is not inconsistent with the authorities referred to above; if anything the authorities tend to support the conclusion reached.
- The learned sentencing judge was not referred to the decision of this Court in Cuff,  QCA 351. That was an Attorney’s appeal and the court did not interfere with a sentence of 12 months imprisonment to be served as an intensive correction order coupled with an order that compensation in the sum of $10,000 be paid. Cuff was older than this applicant, he was aged 27, and he had two previous convictions for assault occasioning bodily harm. The offence in question involved one punch with a closed fist to the side of the face causing a fracture of the jaw. By the time the matter came before the Court of Appeal the compensation had been paid, and that was recognised as a factor indicative of remorse.
- Cuff can be distinguished on a number of grounds; most significantly, the blow in that case was not as reprehensible as a kick to the head of a person lying on the ground.
- In the present case the learned sentencing judge took into account the applicant’s age, his early plea, and all the relevant mitigating factors in determining that the head sentence should be suspended after serving 4 months.
- This is but another case illustrating the devastating consequences of young persons losing control of their actions, particularly where alcohol is involved. It is always sad to see a young man from a good family background serving a period of imprisonment because of a temporary loss of control. Here, as noted above, there was severe provocation by the complainant, but the initial altercation had essentially ended when the complainant ran away. It was the conduct of the applicant in chasing after the complainant and then kicking him in the head whilst he was on the ground which constitutes the criminal conduct for which he must be punished. The physical consequences to the complainant were severe and that cannot be overlooked.
- When everything is taken into account, I am of the view that the learned sentencing judge did not err in principle in the way in which he approached the sentence, and I am not satisfied that the sentence in fact imposed was in all the circumstances manifestly excessive.
- I would therefore refuse the application for leave to appeal against sentence.
- Published Case Name:
R v Craske
- Shortened Case Name:
R v Craske
 QCA 49
McMurdo P, Thomas JA, Williams JA
01 Mar 2002
|Event||Citation or File||Date||Notes|
|Primary Judgment||-||17 Dec 2001||Date of sentence.|
|Appeal Determined (QCA)|| QCA 49||01 Mar 2002||Application for leave to appeal against sentence refused: McMurdo P, Thomas JA and Williams JA.|