The Queen v Ishibashi[1998] QCA 342

COURT OF APPEAL

PINCUS JA

McPHERSON JA

AMBROSE J

CA No 88 of 1998

THE QUEEN

v.

YOSHIMASA ISHIBASHI (Applicant)

BRISBANE

DATE 29/05/98

JUDGMENT

McPHERSON JA: The applicant seeks leave to appeal against a sentence of six years' imprisonment with no recommendation for early parole. It resulted from his conviction in the District Court at Southport following a plea of guilty on a charge of doing grievous bodily harm with intent to disfigure.

The circumstances of the offence are as follows. The complainant is the applicant's wife. She claimed that the applicant seemed to lose all interest in her after their marriage in 1991, which had enabled the applicant to continue to reside in Australia. Frequent arguments between the applicant and the complainant began shortly after their marriage, and on occasions, or so it is said, the applicant assaulted the complainant. He sometimes accused her of having an affair and threatened her saying, at least on one occasion, that he wanted to make her ugly by setting her on fire.

I am not persuaded that these matters are relevant to sentencing for the particular offence in issue except, perhaps, as going some way to meet an argument that the offence in this instance was simply an isolated incident resulting from irrational behaviour on the particular occasion. It is, however, right to say that one can gather from the psychiatric report in respect of the applicant that he also complained of occasions on which he was assaulted by the complainant. 

On the day in question the applicant had attended hospital where he received treatment and advice. The complainant says that she noticed that he was unusually silent during that day. At about 5.30 p.m. they went to a video store and on the way the complainant met a male friend to whom she stopped to talk. She noticed that as she was talking to him the applicant circled them a number of times.

When they arrived home the applicant told his wife he was so happy to have her, as she had a good heart and that he was evil and bad. Before leaving he ran around the unit. He returned after about 20 to 30 minutes in an angry and aggressive mood and accused her of having an affair. He claimed that he was God and that the complainant was evil.  He raised his hands towards her neck but she pushed him away. He pulled the telephone off the wall and left the unit. When he returned she was talking to a female friend on the telephone, but the applicant accused her of talking to her boyfriend. 

He went into the kitchen while she sat in the lounge. She had earlier taken the precaution of removing the knives from the kitchen drawer. The applicant returned to the lounge and began to punch the complainant on the face with his clenched fists. When she fell to the ground, he knelt on her, put his hands around her throat and began to strangle her while yelling in the Japanese language.

The complainant says she had difficulty in breathing and started to "see white". She managed to get away from him but he jumped on her again biting at her face and her little finger. She claims that he laughed at her saying, "No one can help you now." As a result of the attack her little finger had to be amputated after three unsuccessful attempts to save it by means of surgery. She also sustained lacerations on her other hand, a split lip, and tenderness and swelling around the eye. In her witness statement of 28 July 1997 she reports difficulty now in cupping her hands and complains that the loss of her finger is causing her inconvenience with driving and other actions. She felt very distressed and humiliated, as well as being scared of the applicant.

During the police interview the applicant said that his wife was a witch and evil. He had, so it is said, previously told the police that she had to pay for what she had done and that he wanted to kill her, although in the formal interview he denied having said any such thing.

The applicant's submission to this Court is that his sentence is manifestly excessive and that comparable cases suggest a head sentence of four years would have been appropriate, without taking into account mitigating circumstances which called for a suspended sentence or, so it is said, at least a recommendation for early parole.

The applicant stresses his previous good character and record and his good work history. He claims that the offence was completely out of character. The sentencing judge referred to the applicant's plea of guilty, but said he found it difficult to accept as the product of remorse in the light of the applicant's conduct immediately after these events.

The applicant submits that his behaviour was the outcome of an irrational moment of misconduct and of his condition of generalised anxiety disorder. He blames his behaviour, on this occasion, on the matrimonial disharmony that existed between them, and claims that until then he had integrated successfully into Australian society.

There was, it was pointed out before us, no evidence of any planning, premeditation or preparation for this offence, and no weapon or instrument was used in the course of the assault. The basic submission on behalf of the applicant comes down, in the end, in my view, to an argument that a sentence of six years or more is appropriate generally for cases where there has been a degree of premeditation or planning for the offence or the use of a weapon or instrument in order to inflict injuries which, in most of the cases concerned, appear to have had more serious consequences than this.

The applicant has almost no criminal history. He has one conviction consisting of a charge to which he pleaded guilty of wilful destruction of property in the night-time, for which he was placed on a good behaviour bond and ordered to make restitution of $140.00.

A number of comparative sentences were referred to in the written and oral submissions before us. In Hakkila (CA 14 of 1994, 30 March 1994) the accused was sentenced to six years for grinding a broken sliver of a china mug into the victim's eye, causing the loss of this eye as well as serious facial lacerations. 

In Brown (CA 155 of 1996, 26 July 1996) a sentence of six years was imposed for an assault carried out with a large metal spanner which caused serious injuries to the head, left arm and knee and a compound fracture to the right leg. A seven year sentence was imposed on the accused in Thompson (CA 575 of 1996, 16 April 1997) for punching and stabbing the complainant with a screwdriver causing puncture wounds to the head and below the left breast. 

In other cases to which we were referred sentences ranging from eight to 10 years have been imposed for acts of violence causing brain damage; or, in one instance, using acid to cause disfigurement; or, in another, pouring petrol on the complainant which it was sought to ignite. In Lingwoodock (CA 396 of 1987, 22 March 1988) a sentence of five years was imposed for cutting the complainant's throat with a knife.

These sentences appear to me to be of some utility in assessing the appropriateness of the sentence in the present case. It is of course true that the offence of which the applicant was convicted in this case was not simply one of doing grievous bodily harm but of doing grievous bodily harm with intent to disfigure. Nevertheless, it is right to say that the consequences of the action of the offender are relevant in determining the appropriate sentence, even in cases in which the more serious offence is charged. Exacerbating features of the applicant's conduct here are that the injuries were inflicted on his own wife, and that they have resulted in permanent disfigurement, more serious perhaps for a woman, as well as some disabilities of a permanent kind.

Nevertheless, the extent of the injury and the disability is less severe than, for example, the loss of sight of an eye or the brain damage inflicted in two of those other cases that attracted sentences of six years. Taken in conjunction with the plea of guilty, it seems to me that the sentencing level adopted in those other cases suggests that a sentence of imprisonment for six years in the present case was excessive to the point where this Court ought to intervene.

Having regard to the serious character of the offence and its permanent consequences for the complainant I can, for my part, see no compelling reason for recommending parole, or for a suspension of the sentence in the present case. I would however allow the appeal and vary the sentence imposed below by reducing it to one of imprisonment for four years.

PINCUS JA: Were the matter free from authority the sentence imposed might perhaps be able to stand. Counsel have gone to some trouble to assemble comparable sentences, particularly those relating to assaults arising out of domestic or marital disharmony. The substantial injury in the present case is loss of a little finger, not by any means a trivial matter, but a very much lesser injury than is involved in most of the cases to which we have been referred. In my opinion, despite Mr Chowdhury's strong submission to the contrary, it is simply not the case that the six year sentence reconciles reasonably with the range of sentences manifested in the decisions of this Court and the Court of Criminal Appeal. I agree with the order proposed by Mr Justice McPherson and with His Honour's reasons.

AMBROSE J: I agree with the order proposed and with the observations made by both my brothers.

PINCUS JA: The order will be application granted, appeal allowed, head sentence reduced to four years, sentence below otherwise confirmed.