Attorney-General v Oakley[1998] QCA 199

COURT OF APPEAL

PINCUS JA

AMBROSE J

LEE J

CA No 92 of 1998

THE QUEEN

v.

ROBERT PERCEY OAKLEY Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

DATE 26/05/98

JUDGMENT

PINCUS JA:  This is an Attorney's appeal against sentence. Having, on 25 February 1998, pleaded not guilty in the District Court to a charge of unlawfully wounding one Sager; on the following day the respondent changed his plea to guilty and was sentenced on the basis of statements made from the Bar table by counsel. The sentence imposed was two and a half years, suspended after one month, and an order for compensation to be paid, in the sum of $300. The prosecutor told the judge that Sager and one Johanson were sitting in an annex in a caravan park, drinking and watching television, when the respondent came in carrying what was described as a ceremonial sword or ceremonial axe. From the photographs which we have been shown, it appears that the latter description is more accurate. It was an implement said to have a handle about two feet long. The prosecutor said the respondent came in to the two men mumbling something and almost immediately lifted the axe and swung it in the direction of Sager, apparently towards his head or neck. Sager tried to evade the blow, but was struck on the cheekbone. According to the prosecutor's account, Sager then swore at the respondent, who did not reply, but again lifted the axe in a motion which indicated that he was again going to strike Sager. However, Sager tackled the respondent and, with the aid of Johanson, took the axe off him. When the police came the respondent appeared to them to be quite drunk, and he denied having hit Sager with an axe; he was said, by the police, not to be in a fit state to be interviewed that evening. When spoken to some days later he said, in effect, that he had been drinking on the evening of the offence and went to bed and then heard people outside making threats of violence. He said he got the axe, which had been sharpened in order to enable him to cut vines down, and went outside the caravan, was jumped by two people and knocked to the ground, and he told the police the respondent could have been injured in that way. It is plain that that story was not true because counsel for the defence said, in the District Court at the sentencing hearing, that the respondent simply did not recall the incident. Sager's injury was a wound, said to be three or four centimetres in length, and described as a cut almost to the bone, which healed well.

One of the disturbing features of the matter is that there seems to have been no reason for the attack and, in that sense, the case is an unusual one. In the submissions made by counsel for the defence below, he said the respondent was in bed when he heard threatening or offensive words, to put it summarily, and went out apparently carrying the axe. Counsel for the defence made some generally unfavourable observations about Mr Sager's character and said that there was perhaps "a little more to this than met the eye". That vague submission, it appears, struck a responsive chord. The primary judge said to the respondent:

"I cannot get away from the impression that something else must have gone on other than what you can remember, and other than what the complainant has said..." 

And then His Honour said a little later: 

"It may be the case that you were so addled by drink that you had some misconception about some behaviour of the complainants which he was not guilty of, and you had gone to try and seek some redress for that. But, it seems to me your mind was so affected by drink on the night that it is perhaps not illogical to believe that you do not now remember exactly how all this came about. I have got to take into account that the complainant and his friend were also, apparently, substantially affected by drink from the sheer amount of drink that they had."

It is not clear to me how his Honour drew this last inference. It was put forward by counsel for the defence, who addressed his Honour in what might be described as a broad and colourful fashion, and submitted that Sager and Johanson were heavily intoxicated, but he did that merely on the basis that they were said to have been drinking for some hours. Of course, people may drink slowly or quickly and I see no sound basis for a finding that either Sager or Johanson had become drunk. However, his Honour sentenced on the basis that they were substantially affected by drink and said he had to take that into account, presumably meaning as a mitigating factor. His Honour went on:

"I do not say that, in any sense, and I should not be taken to be saying that somehow or other they have contributed to what happened, or that they deserved what they got, or anything like that."

His Honour went on to say, in effect, that perhaps the defence was right in saying that something more happened than had been stated in court. His Honour added:

"So I make it plain that I do not deal with the case on any basis that the complainant was guilty of any misbehaviour that night, but I cannot feel confident that nothing had taken place - even something [the respondent] thought he was guilty of. So, it makes the decision about the appropriate penalty somewhat difficult."

The assertion by the complainant, which had apparently been contested by cross-examination at the committal, that he was a victim of an entirely unexpected and unprovoked attack, was completely uncontradicted, but because of the possibility that that might not have been so, or alternatively the possibility the respondent thought something had happened to justify his axe attack, the matter became, in the judge's view, one in which it was very difficult to sentence.

I do not, for myself, clearly understand what the difficulty was. It was not in dispute that the respondent was very drunk - indeed, so much so that he had, or claimed to have, no recollection of this memorable incident. Nor was it in dispute that he appeared to be too drunk to be properly interviewed on the night in question. There was nothing incredible, as the judge recognised, about the proposition that in that state the respondent might have taken into his head some idea that he had a grievance against Sager. In accordance with a principle which has been applied on a number of occasions in this Court, his drunkenness would not ordinarily be regarded as a mitigating factor, Rosenberger (1995) 1 QdR 677. The other possibility, of course, was that Sager did in fact do something which provoked the assault, but that may be left out of account because his Honour clearly stated he did not sentence on that basis.

The facts, then, which his Honour had to consider in sentencing were that a man of 40, with but a modest criminal record of no great significance, swung a sharp axe at another man for no reason and, fortunately, caused no serious injury. The judge rightly took the view that a custodial sentence was warranted, but erred, in my respectful opinion, in thinking that the possibility that the drunken attacker, the respondent, might have imagined that some insult or other cause justified the attack made sentencing difficult or required that the respondent be leniently treated. Experience in this Court, as well as general experience, shows that some violent and some fatal assaults are due to irrational aggression while the attacker is in a drunken state. In my opinion, the judge should simply have sentenced the respondent on the basis that he had committed a dangerous and entirely unprovoked assault with an axe, attempting to strike a man in the head, which could, of course, have killed him. One important mitigating factor was, however, that the assault caused injury of only modest seriousness. There were other mitigating factors which have been mentioned by Mr Hunter on behalf of the respondent:  the respondent was said to have a sound work history, relatively minor criminal history and the fact that he pleaded guilty, although, as to the last point, he did so after the matter came to trial on a not guilty plea.

In my respectful opinion, the present is a case in which the sentencing process seems to have miscarried. But for what one must assume was a certain amount of agility on the part of the person attacked, the blow with the sharp axe might have caused very serious damage indeed. The fact that the damage was not great goes in favour of the respondent, as the judge correctly recognised. His Honour's mistake, in my respectful opinion, in giving a surprisingly light sentence appears to have been principally that he treated as a mitigating factor that the respondent might perhaps have made the attack because he fancied he was justified in some way in doing so. That possibility was, in my opinion, not a mitigating factor and should not have been so treated. The sentence must be reconsidered.

In my opinion, the appropriate sentence which his Honour should have imposed, and which we should now impose, is a sentence of two and a half years' imprisonment, with a recommendation for consideration for parole after 12 months. It is, however, necessary to take into account the fact that, as Mr Hunter pointed out, 1 month has already been served and the respondent will, of course, be given credit for that.

The appropriate course then appears to be, in my opinion, to make the following orders:  the appeal be allowed, the sentence below be set aside to the extent that it made an order for suspension, the sentence of two and a half years imprisonment as a head sentence be confirmed, and in lieu of the suspension order below there be an order that the respondent be considered for release on parole on 26 April 1999. The order for compensation should be, in my opinion, confirmed and a recommendation should be given that the respondent be given appropriate counselling and psychiatric evaluation while in prison.

AMBROSE J:  I agree, and I would also add only that similar consideration ought be given by the people supervising the respondent while on parole, in other words, special care should be taken to see that he gets any treatment that is needed for whatever produced his activity leading to his conviction, not merely while in custody but also while on parole.

LEE J:  I agree with both sets of reasons delivered by my brothers and for the orders proposed.

PINCUS JA:  It is necessary to add that I agree with Mr Justice Ambrose's suggestion and, in addition to the orders which I mentioned earlier, it will be further recommended that after release on parole the respondent be given such psychiatric or psychological evaluation and treatment as appears to be necessary. It is also necessary, I think, to order that a warrant issue for the arrest of the respondent.

Do you want to say anything about that, Mr Hunter?

MR HUNTER:  Would the Court be minded to allow the warrant to lie for seven days?

PINCUS JA:  Yes, very well.