The Queen v Richmond[1997] QCA 321

COURT OF APPEAL

McPHERSON JA

PINCUS JA

BYRNE J 

CA No 233 of 1997 

THE QUEEN 

v. 

STUART PHILLIP RICHMOND

BRISBANE

DATE 17/07/97

JUDGMENT

McPHERSON JA:  The applicant pleaded guilty in the District Court at Brisbane to one count of doing grievous bodily harm committed on 21 September 1996, one count of making a false statement in writing in a passport application form and, in that connection, one count of forgery, those two offences being committed respectively on 24 and 25 February 1997.

On 9 May 1997, he was sentenced to imprisonment for four months on each of the second and third counts, to be served concurrently but commencing on 28 February 1997, and to imprisonment for three years cumulative on the sentences for counts 2 and 3 in respect of the grievous bodily harm offence.

It is necessary to recall that the function of this Court on an application of this kind is not to review the sentence in order to see whether we individually, or as a Court, would have imposed the same or a higher or lower sentence.  Our function is to determine whether the sentence or sentences imposed are within the area of a proper sentencing discretion and whether that discretion has not miscarried in any material respect.

The most serious offence in this instance was, as the learned sentencing Judge recognised, that of grievous bodily harm.  The applicant became involved in an altercation in the Brunswick Street mall on the evening of 21 September 1996. A chase ensued in which the applicant tried to run away but was pursued by the complainant, as he turned out to be.  The applicant eventually stood his ground and was seen to strike the complainant in the head with what one witness described as great force, felling him to the ground, whereupon the applicant proceeded to kick him several times in the head and the abdomen.

It is, I think, convenient to take the account of events from the statement given by Andre Starke, a 22-year-old student from Queensland University, who had been in the Brunswick Street mall at about 12.35, when she says she saw two persons yelling and hassling each other.  "They appeared," she said, "to be very agitated.  Both were behaving aggressively towards each other."

She observed a male person, whom she identifies as the complainant, pull his arm back, clench his fist and hit the other male person in the head with great force.  The complainant, as he was, then fell to the ground and she saw the prisoner start bounding around like a boxer, staring down at the male on the ground.  She then saw the prisoner kick the complainant several times in the abdomen area and several times in the head.  She described his shoes as being very large sandshoes.  He kept bouncing around with his fists clenched and she saw that the complainant had not moved since falling to the ground.

She ultimately went over and stood between them and was saying to him, "What are you doing?  Just calm down.  Stop hurting him."  She then says, even after she had intervened, that she thought that he might hit her.  So she moved out of the way, and then turned round and saw the prisoner kick the complainant on the ground several times in the head.  He appeared, she said, to be completely out of control and focused on the complainant on the ground.

She saw the complainant was bleeding from the face and saw the prisoner walk around the complainant and continue to bounce around like a boxer.  She then observed him take a few steps back and run up and jump with both feet on to his head.  It was a high jump and she heard a crunch as he did it.  He then kicked the injured person again in the head.  She, that is, the witness, then ran at him, putting both of her hands on his chest and told him, "Everything will be okay.  You just have to calm down."  Then he walked away.

The applicant, who has appeared before us in person and has put submissions to the Court with the assistance of a relative of his, has either personally or with the assistance of his relative advanced the thesis that what he did was done in self-defence.  Even if that be accepted, it must be said that the retaliation or defence measures adopted went well beyond the limits allowed by the law and well beyond what was necessary and reasonable in order to defend himself.

When the police arrived, the applicant told them that the complainant had called him a faggot.  Later he said of the complainant when told of his condition, "I hope he dies.  I don't give a shit."  The complainant was taken to hospital unconscious.  He was in a serious condition and was kept in the intensive care unit for a day. 

Without medical treatment, expert opinion is that his injuries would have caused permanent facial deformity.  The victim, in fact, sustained fractures of bones in the left face, right cheek, and right lower jaw, as well as severe facial bruising, swelling and haemorrhaging under the left eyelid.

As at 9 May 1997, he was still suffering pain in the right mandible joint, although there is no later report after that time to enable it to be said precisely what his condition is or has been since then.

Indirectly, the other two offences committed in February 1997 arose out of the first offence of grievous bodily harm which I have been describing.  The applicant was, it seems, aiming to escape to Vancouver in order to avoid the grievous bodily harm charge I have described.  He arranged to use a signed photograph of another person and, by means of exchanging it with one of his own, intended to obtain a passport in a false name.

Under the Passport Act 1938, s.10(1)(a), that offence carries a maximum sentence of two years.  The activity in which he engaged also involved a forgery, which has a maximum penalty of 10 years under the Crimes Act.

There is, it should be added, evidence that shows that the applicant was fully aware of the offences he was committing and of the penalties that they were likely to attract.  The Judge was plainly justified in making the sentences for these offences cumulative, and no complaint on that score has been made.

The applicant was 22 years old at the date of sentencing.  Regrettably, he has prior convictions for attempted break and enter with intent, assault occasioning bodily harm, stealing and drug offences.

The assault to which I have referred led to his conviction on 17 September 1996, when he was placed on a good behaviour bond; that is to say, a recognisance of $200 to be of good behaviour for 12 months.  On the same occasion, he also received a good behaviour bond of the same kind, or perhaps the same bond, for the attempted break and enter offence to which I referred earlier.

He has, it must be said, had an extremely deprived childhood, but that, to my mind, is no sufficient reason for the degree of violence, and the persistence with which it was carried out, in the course of his attack on the complainant on 21 September 1996.  He has been subjected to psychiatric examination but the conclusion that resulted from it was, in the opinion of the psychiatrist, that he was suffering from no psychiatric illness. 

It is, in my opinion, not possible to regard, a term of three years imprisonment as excessive for an offence of grievous bodily harm of this degree of seriousness.  The more so when one takes into account that the applicant was, at the time, on a good behaviour bond into which he had entered only three or four days before, and that he had been engaged in an earlier assault which had led to that penalty being imposed.

In all the circumstances, I do not regard the case as one in which it can properly be said that the sentencing discretion miscarried and I would therefore refuse the application.

PINCUS JA:  I agree.

BYRNE J:  I agree.

McPHERSON JA:  The application for leave to appeal against sentence is refused.