The Queen v Hallett[1997] QCA 222

COURT OF APPEAL

DEMACK J

DOWSETT J

MACKENZIE J

CA No 100 of 1997

THE QUEEN

v.

ROBERT GLEN HALLETTApplicant

BRISBANE

DATE 19/06/97

JUDGMENT

DOWSETT J:  The applicant was born on 26 July 1958, was 37 at the time of the offence in question and is now 38.  He is living in a de facto relationship of long standing, of which there are two children, one of whom is as I understand it, still dependent upon him.  He has a good work record, but unfortunately, he also has a substantial criminal record, to which I will refer in a moment.

The offence of which he stands convicted is one of unlawful wounding on 25 April 1996.  The evidence shows that the offence occurred at an hotel in Caboolture.  There are different versions of how the incident occurred, but the common features appear to be that the complainant and the applicant became involved in a struggle, as a result of which they fell to the floor, the complainant on top.

The applicant had in his hand at the time a beer glass and as he fell, it broke.  Whilst they were on the ground and, one may infer, struggling, he thrust upwards into the complainant's face on a number of occasions with the beer glass, wounding him quite seriously, or so it would appear, from the complainant's description of his wounds.

He said that his lip was "cut right off, it was hanging down to my chin".  He said, with respect to his ear, "That ear lobe was sort of half off."  I would be prepared to infer that there is probably a degree of exaggeration in all of that, but nonetheless, it is clear that he suffered quite significant wounding.  The applicant went to trial and appears to have raised defences of self defence and provocation and also accident, all of which were rejected by the jury.  I do not propose to seek to resolve the question of who might have been responsible for starting the altercation, because really the actions which constituted the offence could not in any sense or in any way be justified by whatever may have caused the outbreak of dissatisfaction between the parties.

I have said that the applicant has a quite bad criminal history and that is the case.  He has convictions dating back to 1974, including a number for violence and some for dishonesty.  There is about his record the suggestion that much of his difficulty with the law is attributable to drink, but that is by no means an uncommon experience.

He has been sentenced to imprisonment on a number of occasions, but never for any lengthy period, the longest being, I think, four months.  It is more helpful to concentrate on his recent record, by which I mean his record over the last five to 10 years.  In 1986, which is a little outside that period, he was convicted of a number of offences, including assault on a police officer and was sentenced to a short period of imprisonment.

Subsequently, there was a conviction for attempted false pretences in 1987, obscene language in 1987, unlicensed driving which occurred in 1988, a number of offences of breaches of the Bail Act, receiving in 1992, unlawful use of a motor vehicle in 1993, which offence occurred in late 1992, and behaving in a disorderly manner in 1995.  There were also numerous convictions for breaches of probation orders or of the Bail Act.  It is fair to say that the most serious offences since 1991 are one of receiving and one of unlawful use of a motor vehicle. 

Nonetheless, the point of our referring to a criminal record is, at least partially, to see whether or not the offender in question has had the opportunity of appreciating the rigours of the law and the consequences of misconduct.  There can be no suggestion other than that this man has had numerous opportunities for experiencing the less pleasant aspects of the law and the consequences of its breach.  He is a person with a record which means that he ought always to be aware that the consequences to him of further criminal misconduct are likely to be more severe than to a person who has not previously been so involved. 

In the present case I think I can best sum up the effect of his record by saying that the sentencing Judge ought not to have treated it as showing a career of consistent serious crime.  It was necessary to take into account the fact that most of the offences were of a relatively minor nature, although that is not true of all of them.  It was also necessary to take note of the fact that with maturity, he appears to have improved his behaviour to some extent.   Having placed those caveats upon the use of his record, nonetheless it was still open to the sentencing Judge to treat it as a bad one.

The offence carries, as I understand it, a maximum period of seven years' imprisonment and this cannot be called a minor example of offences of its kind.  We were referred to a number of decisions in other cases. 

First was the decision of the Court of Criminal Appeal in Robertson.  That was a case in which a man in a hotel hit somebody else in the face with a beer jug which smashed, causing him quite serious injury.  Although, in my view, the incident is quite similar to what happened here, it is likely that the injuries suffered were a little bit more serious. 

That applicant had some criminal record although it was treated as being of marginal relevance.  He had previously been convicted of attempted rape and resisting arrest.  The sentence in that case, which was not disturbed, was one of three years, and it may be said that it sets the top of the range for an offence of the present kind.

In Vickery, the Court was concerned with an attack with a glass in a hotel.  The facts of the case appear to have been that the applicant's female companion was approached by the complainant with whom she had previously had a relationship and was asked to dance.  There was a long history of ill-will between Vickery and the complainant who had been dealt with on more than one occasion for harassment of Vickery and the woman.  I am not quite sure what is meant by "dealt with" in that context.

On this occasion, when the complainant approached the woman, Vickery broke the glass, which he was holding on the table and struck the complainant in the face, causing him serious injury.  Vickery was 40 years old and divorced with custody of a young daughter.  He was unemployed at the time.

At first instance, he was given community service and by the time of the appeal, he had discharged his obligation in that regard.  Nonetheless, the Court was of the view that the sentence was plainly inadequate and that a sentence of at least 18 months' imprisonment was warranted, despite the fact that the act was spontaneous and that Vickery had cooperated, pleaded guilty and gave clear indications of contrition.  He had no previous convictions and, of course, as I have said, pleaded guilty. 

This was an Attorney's appeal and it is reasonable to say that on Attorney's appeals, where the Court elects to intervene, the usual course is to impose a sentence which is not as high as might otherwise have been the case.  This reflects what has sometimes been described as an element of double jeopardy in the situation in which an appellate Court intervenes in the sentencing process to increase the sentence.

In Milano the offence arose out of an altercation at a club.  The argument ended when the respondent struck the complainant in the side of the head with a seven ounce glass, causing injuries which required 38 stitches and left the complainant with an unsightly scar.  The offence was said to be spontaneous, but the matter went to trial and it was said that the respondent had not exhibited remorse.

He was sentenced at first instance to 15 months' imprisonment, to be suspended after three months on condition that he did not commit another imprisonable offence for three years.  The Attorney appealed and on appeal, the Court chose not to intervene, saying that Vickery was a more serious offence.  The complainant in Vickery was not the aggressor and Vickery's conduct was premeditated.

In not interfering, of course, the Court did not necessarily say that the period of imprisonment of 15 months was the correct sentence but merely that it was not so low as to lead the Court to be in substantial disagreement with it.  Nonetheless, 15 months may be taken as being at the bottom of the range for offences of this kind if it is correct to speak in those terms.

In this case then, the imposition of a sentence of three years might well be at the top end of the appropriate range, but I am unable to say that I am in substantial disagreement with it, or that any manifest error has been demonstrated in the process by which the learned trial Judge reached that conclusion.  In those circumstances I would refuse the application.

DEMACK J:  I agree.

MACKENZIE J:  I agree.

DEMACK J:  The order of the Court is the application for leave to appeal against sentence is refused.