The Queen v S[1999] QCA 499

COURT OF APPEAL

de JERSEY CJ

McMURDO P

THOMAS JA

CA No 323 of 1999

THE QUEEN

v.

S

BRISBANE

DATE 01/12/99

JUDGMENT

THE PRESIDENT:   The applicant pleaded guilty in the Cairns District Court to six counts of housebreaking, two counts of attempted break and enter with intent and one count of grievous bodily harm.  These offences were committed between 30 November 1998 and 27 March 1999. 

As the offender was a child he had to be sentenced under The Juvenile Justice Act 1992 and a pre-sentence report was ordered.   The applicant was sentenced on 27 August 1999 to six years detention for the offence of grievous bodily harm and to concurrent periods of detention ranging from one month to six months on the remaining property charges.  It was ordered that he be released from detention after serving 50 per cent of that period.  

The applicant is 15 years old and had a prior criminal history most of which occurred at about the same time as the offences the subject of this appeal.  In January 1999 he was reprimanded for two counts of entering a dwelling house with intent and stealing.  On 19 February 1999 he was placed on a good behaviour bond for six months without conviction for being drunk in a public place. The offence of grievous bodily harm constituted a breach of that order.  On 24 March 1999 he was convicted of two counts of entering a dwelling house with intent on 2 March 1999, two counts of entering a dwelling house with intent on 19 November 1998, two charges of entering or being in a dwelling house and committing an indictable offence on 10 and 28 November 1998, one count of unlawful use of a motor vehicle on 28 November 1998 and one count of receiving between 19 and 21 November 1998.  He was convicted and placed on nine months probation and 100 hours community service. On the same day he was convicted of stealing and sentenced to probation and 100 hours community service and he was also dealt with for unauthorised dealing with shop goods by a reprimand.

The property offences the subject of this application totalled over $5,400 but in practical terms this application is only concerned with the most serious count, that of grievous bodily harm, the facts of which are as follows.  

The complainant was a 26-year-old high school teacher who had been drinking with friends at the RSL.  Some time after 1 a.m. the complainant had passed out in a garden in Lake Street. An eye witness saw the applicant nudge the complainant with his leg and foot and then kick him in the chest rolling him off the garden kerbing and onto the street whilst continuously kicking him towards the kerb.

The applicant and another smaller child kicked him about six or seven times.  The complainant tried to push himself up off the ground but was kicked again in the face and knocked back to the ground.  He was then kicked another five or six times by the two child aggressors who twice gave each other high-fives recognising their enjoyment in the course of the attack. The applicant gave one final kick to the complainant's left side of his face near his ear causing the complainant's head to jolt. The eye witness and her friends were yelling at the aggressors to stop and assisted the complainant as soon as they left.  

The victim's face was smashed in and blood was pooling round his head and he was taken to the Emergency section at the Cairns Base Hospital where he was treated for fractures to the left and right eye sockets and nose.  In lay terms his mid face was squashed backwards about two or three centimetres and his nose pushed to the left.  Arrangements were made for a CT scan.  He required serious surgery which could not occur until the swelling had reduced.  He was hospitalised until 5 March, released until 12 March and then underwent a four and a half hour operation with three surgeons reducing his fractures and inserting a series of plates, screws, bars and wire to reconstruct his face.  He remained in hospital for a further five days.

The applicant and another child matching descriptions given by eye witnesses, were located later the same morning and the applicant was subsequently arrested.  He told police about the property offences constituting all but one of the remaining counts and was fully co-operative.  

The applicant committed the final count of attempted break and enter whilst on bail for these offences.  

His co-offender had no criminal history and was younger than him; he was cautioned for the offence of assault occasioning bodily harm in company on the complainant, Mr Roff.  

The applicant told police he had been at a party, was drinking alcohol, became tipsy and then became involved in a fight which made him angry.  The applicant and a number of his friends set upon the unfortunate Mr Roff.  The applicant admitted kicking the complainant only two or three times.   During the course of sentencing, the applicant's barrister told the Judge that the applicant accepted the outlined prosecution facts.  

As can be expected the effect of the attack on the victim has been significant.  He comes from a good home and his brother has played Rugby Union football for Australia.   He too was hopeful of becoming involved in professional football but he has not been able to play contact sports since his injury.  He has been depressed and lost self-confidence.

At the sentence the Judge was told that Dr Belt noted the complainant could have future problems with the plates in his face but as he is young and fit there are good prospects there will be none.

The pre-sentence report supported the submission made by defence counsel at sentence that the applicant had had a disturbed upbringing moving from house to house to escape with his mother his alcoholic and violent father.  He spent long periods out of school and performed poorly when he did attend.  He formed close friendships with known young offenders.  He expressed remorse for his actions and was frightened of detention.  

His Honour expressed dissatisfaction with the pre-sentence report because the applicant deliberately understated to the reporter his involvement in the attack on Mr Roff.  

The applicant concedes that a period of imprisonment is inevitable and appropriate but submits that six years detention is manifestly excessive and claims that a three and a half year detention order to serve 50 per cent is the appropriate sentence.

The maximum sentence available for this offence under the Juvenile Justice Act is seven years imprisonment, of which 70 per cent would ordinarily be served.  

The learned sentencing Judge expressed concern as to the prevalence of these offences in the Cairns area and that no doubt was a matter that persuaded him that a deterrent sentence was appropriate.

The comparable sentences placed before this Court somewhat surprisingly suggest that the sentence imposed, even had the applicant been an adult, was too high; it may be that in the future there will be an increase in the length of sentences imposed for offences of gratuitous violence but, for the time being, it must, in my view, be conceded that the sentence imposed in this case is outside the appropriate range; this is established by a review of the following cases.

In R v. Suchanek CA No 106 of 1994, 14 June 1994, Suchanek pleaded guilty to armed robbery in company with others and grievous bodily harm.   He was sentenced to five years detention with an order for release from detention after having served 50 per cent of that period.  A waiter in a restaurant was robbed with a loaded gun and was shot in the leg, although not by Suchanek.  The sentence was found by this Court not to be manifestly excessive. 

In R v. Tapuaka, 192 of 1994, 3 August 1994, Tapuaka pleaded guilty to doing grievous bodily harm.   The offence was a serious, vicious and totally unprovoked assault on a 19-year-old male student as he walked through a pedestrian subway to Oxley Railway Station.   The applicant was in company and was a large young man while the complainant was of small stature.  The complainant suffered a double fracture of his jaw which required open surgical reduction and the insertion of titanium plates.  Tapuaka had no previous convictions and came from a strong Tongan family, although he had difficulties at school after the death of his step-father.  He had favourable references, work and rehabilitation prospects and like the Juvenile Justice Act 1992, at the time of his sentence, the Penalties and Sentences Act 1992 required that a Court impose a sentence of imprisonment on an offender under the age of 25 years without prior convictions only if in all the circumstances no other sentence was appropriate.  Tapuaka was sentenced to six months imprisonment and three years probation, the sentence imposed at first instance, two and half years imprisonment with a recommendation for parole after 12 months, being held to be manifestly excessive.

In R v. Moore, CA No 145 of 1994, 15 August 1994, Moore, a 28 year old indecently assaulted and caused grievous bodily harm to a 17-year-old girl at a party.  He was sentenced to five years' imprisonment described as the upper end of the range of the appropriate sentence for this type of offence.

In R v. Creagh, CA Nos 160 and 100 of 1995, 29 May 1995, Creagh inflicted serious head injuries upon his wife and was convicted after a trial of doing grievous bodily harm.  He was sentenced to five years' imprisonment which was found not to be manifestly excessive.

In R v. Buckingham, Camilleri and Sprott, CA Nos 26, 27 and 28 of 1996, 14 March 1996, the Attorney-General appealed against a suspended sentence of two and a half years imposed on the offenders for doing grievous bodily harm. The complainant, a 38-year-old teacher, was simply walking along a beach when set upon by the offenders with a cricket bat and received serious injuries requiring the wiring of his shoulder.  A sentence of two and a half years' imprisonment with a recommendation for parole after nine months was imposed instead of the sentence below.

In R v. Richmond, CA No 233 of 1997, 17 July 1997, Richmond pleaded guilty to doing grievous bodily harm and was sentenced to three years' imprisonment.  He was involved in an altercation with the complainant who had pursued him in a chase.  He felled the complainant with one punch and then proceeded to kick him several times in the head and abdomen.  The applicant, who was observed to be completely out of control and bounding around like a boxer, took a few steps back and ran up and jumped with both feet onto the head of the complainant, making a crunching sound.  He then kicked him in the head again later saying of the unconscious complainant, "I hope he dies, I don't give a shit."  Without medical treatment the injuries would have caused permanent facial deformity due to the fractures to the left face, right cheek and right lower jaw.  Richmond was 22 and on a good behaviour bond at the time of the offence for property offences.  He had come from a very deprived background.  The sentence of three years was not interfered with.

In R v. Amituanai, (1995) 78 A.Crim.R. 588, the applicant was sentenced to three years' imprisonment with a recommendation for parole after nine months for the offence of doing grievous bodily harm.  He was assaulted and then retaliated and he pursued the assailant, later finding him and kicking him in the head, causing him to fall backwards to the ground hitting his head heavily on the bitumen, as a result of which he suffered very severe injuries including serious brain damage.  Pincus JA noted:

"It is the extent of that damage which is the principal justification for the sentence imposed below.  One could perhaps defend a legal system in which the particular consequences for the victim of such a blow are treated as of little significance and the court is required to focus solely on the circumstances of the blow itself.  But that is not our system; for reasons which are evident enough, the offender will find that his punishment may depend on the extent of the damage the victim happens to sustain.  That is, the risk that a blow which might by good luck have caused little damage in fact has catastrophic results, as it had here, is one which is shared by the victim and offender."

In R v. W and C, CA Nos 495 and 496 of 1995, 22 March 1996, C, who was 16 years of age, was convicted of robbery with personal violence and was sentenced to five years' detention with an order for release after having served 60 per cent of that period.  The complainant was a 59-year-old man who worked late and arrived at the Woodridge Railway Station at about 9.40 p.m.  As he was walking home he was hit from behind by a heavy object three or four times and fell to the ground dazed.  He was lifted up by the two attackers who told him they wanted money.  He was punched and kicked and fell to the ground again and was kicked by three youths.  

His bag containing $140 was taken.  He was assisted by a taxi driver who noticed him unconscious.  He was taken in an ambulance to hospital and was treated for his serious injuries which required him to spend four days in hospital.  His scalp lacerations were sutured; he had a right side subarachnoid haemorrhage and a mild to moderate sensory neural loss in the right ear with an added conducive overlay in the left ear which may have been attributable to the assault.  It was noted that there appeared to have been little or no permanent physical damage by the Court of Appeal.  Pincus JA noted:

"... it is the practice of the courts to treat the actual effect on the victim as relevant - see the Juvenile Justice Act 1992, s 109(1)(a) and (g).  'The risk that a blow which might by good luck have caused little damage, in fact has catastrophic results ... is one which is shared by the victim and the offender': Amituanai ...  Similarly, where (whatever might have happened) the victim does not suffer in fact serious permanent injury, that can redound to the benefit of the offender in the sentencing process."

The sentence imposed below was set aside and instead the applicant was ordered to serve a period of detention of three years and four months and to be released from detention after serving two years.  It is significant that the maximum period of detention available for offences of robbery under the Juvenile Justice Act 1992 as in R v. W and C, is ordinarily 10 years compared with the seven year maximum in this case.

A review of these cases persuades me that despite the very serious aspects of this offence, the sentence imposed was manifestly excessive, bearing in mind the age of the applicant, that he had not been sentenced to a period of detention before and that he was being sentenced under the Juvenile Justice Act 1992. Whilst he had some prior convictions they were not for violence and all occurred within the five month period during which this offence of grievous bodily harm occurred.  In my view, a sentence of four and a half years' detention was appropriate.  Because of the plea of guilty, his cooperation with the authorities and his prospects of rehabilitation it is appropriate to order that he be released after serving 50 per cent of that period.

THE CHIEF JUSTICE:  I will invite Justice Thomas to deliver the next judgment.

THOMAS JA:  We have been referred to more than 20 sentences imposed on young offenders for grievous bodily harm.  In some of these cases the offenders were juveniles but most of them were young male adults.  Even so, it cannot be thought that the range of sentence for juveniles should be higher than that for adults.  On examination, the upper level of the comparable sentences that counsel have been able to muster imposed on violent juveniles seems to me to be too low.  I note that the maximum sentence available in the present case is seven years and that the appellant could have been ordered to serve 70 per cent.

Mr Justice Pincus observed in Coolwell on 22 March 1996 that:

"An increase in the level of sentencing may be necessary to deter young people who might be tempted to form a pack to attack individuals going about their lawful concerns."

A similar comment might be made about savage gratuitous violence such as that which was shown in the present case.  However, it is necessary that consistency be maintained in sentencing.  It would be unfair to make this young offender an example in order to settle a new level.  To maintain consistency I agree with the President's proposal that a sentence of four and a half years detention, to serve 50 per cent, should be imposed.  I would add a warning that this should not be regarded as an upper limit and that in future higher sentences might be appropriate.

THE CHIEF JUSTICE:  I regret that I differ in this case from my colleagues.  I am persuaded that the sentence of six years puts the case out of kilter with a range disclosed by other cases, allowing for the circumstance that they concern adults.  Huang, 310 of 1998, and Dickinson, 110 of 1992, are examples.  The case is rather like Coolwell, 495 of 1995, in terms of consequence but the mindless gratuitous violence of this case distinguishes it. 

I also agree with the observation of Mr Justice Pincus in Coolwell, that an increase in the general level of District Court sentencing for violent crime by children may be warranted:

"To deter young people who might be tempted to form a pack to attack individuals going about their lawful concerns."

This learned Judge did go beyond that general level and in doing that he was, I believe, rightly influenced by what he saw as a need for local deterrence.  But in going as far as to six years His Honour did, I fear, fail to make sufficient allowance for the age of the offender.  I regret, however, that I could not join in a reduction of the six year sentence to four-and-a-half years.  My view is that this offender should desirably have been sentenced to five years' imprisonment.  Because I differ from the other members of the Court, whether an extra year makes the six years manifestly excessive warranting adjustment is not an issue I need conclude.

The order of the Court is that the application for leave to appeal against sentence is allowed, the appeal is allowed, and the sentence of six years' imprisonment, to be released after 50 per cent imposed with relation to count 5, is set aside and in lieu thereof the appellant is sentenced to a term of four and a half years' imprisonment, to be released after serving 50 per cent of that term.

THE PRESIDENT:  I agree with the order proposed.