R v Swayn[1998] QCA 171

WHITE J:  The applicant pleaded guilty on 23 February 1998 in the Supreme Court at Rockhampton to one charge of grievous bodily harm on 27 September 1996 and on the following day, on a separate indictment, that on 24 May 1997 he unlawfully had possession of cannabis sativa, in excess of 500 grams.

The applicant was on bail in respect of the first charge  when he committed the second offence.  On 24 February 1998 he was sentenced to a period of imprisonment of five years in respect of the first charge and six months imprisonment cumulative upon the five years with respect to the possession of cannabis.

No recommendation for early parole was made.  The applicant appeals against his sentences on three grounds:

1. That they were both generally manifestly excessive;
2. The penalty for the possession of cannabis ought to have been something other than a term of imprisonment or not to have been cumulative and;
3. That the failure to make a recommendation for parole earlier than the statutory scheme imposed a sentence which was manifestly excessive and failed to take into account mitigatory factors.

The applicant was aged 22 at the time of the offence and 23 when sentenced, having been born in September 1974.  Initially, the applicant had been charged with attempted murder.  The prosecution had offered to accept a plea of guilty to grievous bodily harm in August 1997.  The applicant's plea of guilty to that offence, it seems, was on the morning of the trial.

The applicant has a minor previous criminal history.  In 1992 he was convicted and fined in the Magistrate's Court at Blackall of wilful destruction to property and of being found on unlicensed premises whilst under the age of 18 years.  In the Yeppoon Magistrate's Court in April 1996 he was convicted of possession of a dangerous drug and a thing used in connection with smoking a dangerous drug.

The applicant's younger brother was charged jointly with him on the first indictment and pleaded guilty to assault occasioning bodily harm and was sentenced to six months imprisonment.  No issue of parity arises here.  Two incidents occurred involving the complainant, one Daniel Maguire, a 22 year old young man on the night of 27 September 1996.

The applicant and complainant were in a nightclub in Yeppoon and the applicant and probably the complainant, had been drinking.  A fight broke out between the applicant and the complainant.  The applicant maintained that the complainant hit him first, but there were no witnesses to that incident.  The complainant has no recollection of the events of the evening in so far as they involved the assaults.

At the time witnesses noticed the scuffle, the applicant was lying on top of the complainant in the bar area and they saw the applicant's younger brother run across the room and join in the fight.  They were both seen to "stomp" on the complainant's head.  Security guards separated them and told the brothers and the complainant to leave the nightclub.

As a security guard was walking the complainant out through a different bar, the applicant followed, but then left through the main door after being told to leave the complainant alone.  Many witnesses, a number of whom had consumed no alcohol, each saw part of the incident outside the nightclub which involved the applicant attacking the complainant.

Although the applicant said that he had been attacked by the complainant outside, the evidence of the independent witnesses was overwhelmingly against his account.  His Honour found the applicant to be a demonstrated liar, both as to his account of this offence and the drug offence and generally formed a poor opinion of him.

The evidence accepted by the learned sentencing Judge was that the complainant left the nightclub and walked along the street.  He was pursued by the applicant who punched him a forceful blow to the back of his head.  Witnesses saw the complainant fall straight to the ground, appearing already unconscious as he fell.

Numbers of witnesses described the applicant kicking and "stomping" on the head of the complainant.  The number of times varied, but there were several.  The complainant did not move throughout the attack.  The stomping was said to involve lifting the knee and stamping down on the head of the complainant and the kicking was described as the leg being lifted back and forcefully striking the head.

Some witnesses heard a cracking sound in the vicinity of the complainant's head.  Although one witness thought that the applicant was wearing work boots, the learned sentencing Judge proceeded on the basis that he was wearing a pair of black shoes.  Some witnesses described the applicant as walking away from the complainant lying on the ground in a pool of blood and said that when other people came to his assistance the applicant turned back and made some semblance of concern for the complainant.

The learned sentencing Judge accepted the submission that this was a feigned concern.  The applicant told an ambulance officer at the scene that he had punched the complainant once and that he had then fallen down and hit his head.  The complainant was deeply unconscious and on admission to the Yeppoon Hospital had a Glasgow coma score of four.  He had bruising around the left eye, a depressed left zygoma, a marked haematoma on the left frontal skull, both ears were swollen and - with a cauliflower effect - blood flowed from his ears and nose.

He had abrasions to his left shoulder, lower left back of the chest and a fractured left clavicle.  He was transferred to the Rockhampton Hospital and ventilated.  A CT scan of his head showed fractures of the right maxilla, right temporal bone, right occiput, left parietal bone and the bilateral petrous temporal bone.  The left temporal bone had a large haematoma with free air and free blood was seen around the mid brain basal stems and the right parietal surface.

He was evacuated to the Royal Brisbane Hospital and underwent surgery to deal with his head injuries.  He remained a month in the Royal Brisbane Hospital and on 28 October 1996 was discharged to the Princess Alexandra Head Injury Rehabilitation Unit.  The opinion of the treating doctor at the Royal Brisbane Hospital was that had his injuries been left untreated he may have died or sustained permanent disability. 

In fact the complainant does suffer from some permanent disability.  The results have been nothing short of disastrous for him.  On transfer to the Princess Alexandra Hospital he suffered post-traumatic amnesia and headaches with mild high level balance problems.  He had ongoing cognitive problems and difficulties with attention and concentration and short term memory. 

He suffered from double vision and had bilateral conductive hearing loss.  By 4 April 1997 his double vision had resolved but he had a marked sensory loss involving the scalp and the face.  He had a lack of sensation which continues in the left eye and which causes problems with his eye requiring constant lubricant.  The complainant was assessed by the Commonwealth Rehabilitation Service in December 1997 and February 1998. 

After extensive testing by a range of professionals it was concluded that he was unlikely to be able to maintain paid employment unless a marked improvement incurred in his brain based disability attributable to his injuries.  

Prior to injury he was employed as a bricklayer but was assessed as incapable of performing this job because of deterioration in his cognitive and perceptual abilities, poor capacity to attend to the task, problems with fatigue and difficulties with his left eye.  The testing indicated that as a consequence of the injuries sustained in the attack he had a loss of about 13 full scale IQ points which resulted in a shift from low in the average range to borderline intellectual functioning. 

Dr F Curtis, a psychiatrist, examined the complainant in April 1997 and concluded that he sustained scattered neurological defects following the skull and cerebral injuries inflicted by the applicant.  He diagnosed an organic personality disorder caused by the assault and the complainant was prone to depression as a consequence.  Dr Curtis concluded that the complainant had been rendered a chronic invalid.

On 24 May 1997 while the applicant was on bail in respect of this offence the police executed a search warrant at his premises.  They found a number of utensils and a small amount of cannabis sativa in the house.  Whilst the police were searching inside the applicant went outside as he said to the police to see if his wife had arrived home.  He was seen to be throwing a black plastic container down the hill into the bush. 

When the police searched the hill at the rear of the shed through long grass they found a plastic screw top drum which contained a quantity of cannabis sativa.  The applicant denied throwing it down the hill and any knowledge of it to the police.  The drum contained 558.3 grams of cannabis.  The balance of the material in the house weighed 1.5 grams. 

The learned sentencing Judge rightly in my view expressed the opinion that the kind of behaviour indulged in by the applicant must carry a heavy sentence to deter other young drunken men from engaging in such a display of violence with such ruinous consequences for the victim.  He referred to the applicant's personal circumstances including that he had been accidentally shot in the stomach in 1991 for which he had some continuing consequences, particularly of pain, and that he had a de facto wife and young son and was said to be a good father.

By making extensive reference to the applicant's lies and attempts to reduce his involvement in the assaults, the learned sentencing Judge clearly did not accept that remorse had been demonstrated and he had been urged to regard the plea as a late one as indeed it was.

The Crown below relied on Dickinson CA Number 110 of 1992 and Pascoe CA Number 459 of 1995 to support a range of five to seven years emphasising that the present case had more serious features than either of those.  Mr Martin SC who appears on behalf of the applicant here has demonstrated differences with those cases.  Dickinson received a sentence of six years for a prolonged assault in company which left the complainant seriously disabled from participating in the community. 

Pascoe received five and a half years.  After a drunken altercation at a hotel he threw the complainant into the car park.  He then dragged the complainant from his car and kicked him once in the head.  This left him with a severely impaired mental capacity and other disabilities.  In both cases there were trials and Pascoe had a prior criminal history for violence.

However, as a review of the authorities will reveal, a range of sentences have been imposed for grievous bodily harm.  As was observed in Amituanai CA Number 524 of 1994 it is not possible to reconcile all of these decisions but what is apparent from the cases is a continuing concern by the sentencing Courts at the increase in prevalence of this kind of violent conduct usually by young men who have indulged in alcoholic liquor and the need to impose sentences which will deter such conduct.

Where the consequences for the victim have been serious as here the offender must take the consequences.  Taking into account the persistent pursuit of the complainant, the attack from behind and its prolonged nature to the head together with little if any demonstrated remorse, I do not think it can be said that the sentence below of five years was manifestly excessive.  I do not consider that any other recommendation as to parole was called for.   The head sentence in my view sufficiently encompassed matters which were favourable to the applicant.

As to the cannabis possession charge to which most of the oral submissions before the Court were directed the offence was committed whilst on bail but was in my view otherwise unremarkable for offences of this kind.  The submission was that it was for private use and this was not contested by the Crown.  The prosecutor did not contend in fact for a separate cumulative sentence and at page 18 of the submissions the prosecutor said that she would simply ask the learned sentencing Judge to take the offence into account in the overall sentencing of the prisoner. 

Notwithstanding that His Honour in fact imposed a cumulative term of imprisonment.  Against a very minor previous conviction in my view a cumulative sentence of six months seems excessive when regard is had to sentencing trends in the trial division for offences of this kind, even though committed whilst on bail for a very serious offence.  It should also be borne in mind that the use of the drug said to be for pain relief has often been seen to be a mitigating factor.

Mr Martin contends that a fine ought to have been imposed.  No submissions were made about the applicant's capacity to pay below but before this Court Mr Martin says that his client would borrow any necessary money from his parents and pay them back after he's completed his prison term. 

In my view a fine of $2,000 would sufficiently recognise the criminality of the offence and that it was committed whilst on bail and I would order that it be paid within three months and in default six months' imprisonment.

So the orders which I would propose would be that the application for leave to appeal against sentence be allowed only with respect to the sentence imposed with respect to the possession of cannabis in the way in which I have indicated.

PINCUS JA: I agree.  I would add only that I found the schedules produced by Mr Martin and prepared by the Legal Aid library of assistance in assessing the correctness of Mr Martin's submission that the sentence imposed below in respect of the cannabis offence was not within the usual range. 

DERRINGTON J:  I agree.

PINCUS JA:  The sentence will be varied in accordance with the orders proposed by Justice White.  Call the next matter, please.

MR CHOWDHURY:  Your Honours, there is just one other matter.  A question of whether a conviction should be recorded.  In my submission, it should be.  It is not automatic when imposing a fine, there is a discretion.

PINCUS JA:  Do we have to make an order about that?  What did the Judge say about it?

MR CHOWDHURY:  The Judge simply made an order of imprisonment and that is automatic.

PINCUS JA:  What is the section?

WHITE J:  Well, that is automatically.  You must have a - yes.

PINCUS JA:  What is the section you are referring to?

MR CHOWDHURY:  It is section 44 of the Penalties and Sentences Act.  The Court may impose a fine whether or not it records a conviction so it therefore leaves the matter for discretion.

PINCUS JA:  But does it mean you have to say a conviction is recorded?  Is there not one recorded now?  What did the Judge say about it?

MR CHOWDHURY:  Well, the Judge made no order about conviction because he has simply imposed a sentence of imprisonment and under the Penalties and Sentences Act‑‑‑‑‑

DERRINGTON J:  That is automatic.

MR CHOWDHURY:  That is automatic and normally the Court says no conviction recorded or a conviction is recorded.

PINCUS JA:  I accept what you say.  I just want to make sure that we make the right order.

MR CHOWDHURY:  Yes, Your Honour.

PINCUS JA:  Section 44 does not really cover it.  What is the provision of that recording convictions again?  I've forgotten where it is.

MR CHOWDHURY:  It is in the beginning of the Act - just pardon me for a moment.  It is at the beginning of the Act.  Yes, section 12.

PINCUS JA:  Section 12.  See, that is perfectly general, is it not?  It says, "It may exercise a discretion to record or not record a conviction as provided by this Act."  Where are the restrictions on recording a conviction?  Where does it say you have to record a conviction in certain circumstances?

MR CHOWDHURY:  I do not think that it says that you have to record a conviction it simply says whether or not to record a conviction.

PINCUS JA:  No, no, no, but is there not some restriction - is it not the case that if you are sent to prison there must be a conviction recorded, where does it say that?

MR CHOWDHURY:  Yes.  That is the section relating to imprisonment.  It is about section 151 or thereabouts - just pardon me for a moment. 

WHITE J:  That deals with suspended sentences, does it not?

MR CHOWDHURY:  Yes, 152, I am sorry.

PINCUS JA:  The Judge just did not say anything about recording.  See, 152 does not say if you order imprisonment a conviction is recorded, it says you cannot order imprisonment unless a conviction is recorded and there is no conviction recorded here, is there?

MR CHOWDHURY:  Not specifically in the record.

PINCUS JA:  Well, how do you do it unspecifically?

MR CHOWDHURY:  I suppose that is correct.

PINCUS JA:  What do you say is the proper practice,

Mr Martin?  Have you got any theories about this?  I do not want to be pedantic about it but it is just nice to make the right order instead of the wrong one.

MR MARTIN:  Yes.  Your Honour, in my experience the Judge‑‑‑‑‑

PINCUS JA:  No, not working on experience, just talking about the Act for the moment.  If one takes notice of the Act rather than what people do.  The section seems to contemplate that if an order of imprisonment is made then you record a conviction but how you do it is presumably by saying, "I record a conviction."

MR MARTIN:  That is right.

PINCUS JA:  So because there is an imprisonment order we should record a conviction irrespective of the  - so I suppose we simply say we record a conviction in respect of both offences.

MR MARTIN:  That is right, your Honour.

PINCUS JA:  Do you object to that order, Mr Chowdhury?

MR CHOWDHURY:  No, I certainly do not, your Honour.

WHITE J:  Yes, if I could add I think the word, "recording" as many people practice it, is simply to have it endorsed on the indictment without actually saying it out aloud as part of the sentencing process in the Court.  So it probably does happen but it is not said that it happens.

PINCUS JA:  But the same can happen with a sentence, can it not?  Unless the Judge says otherwise presumably a conviction just gets recorded, does it not?

MR MARTIN:  That is right.

PINCUS JA:  So do we have to say anything or do we not?

MR MARTIN:  I do not think you have to say anything.

PINCUS JA:  I mean, my impression is that with what happens aside from the Act is that the conviction gets recorded unless the Court says otherwise.  We do not say otherwise.  So we do not have to say anything.