R v Burnham[1999] QCA 99

PINCUS JA: These two applicants, Burnham and McLean, were convicted of assault occasioning bodily harm in company. The applicant McLean was convicted after a trial. Burnham initially pleaded guilty, but then changed his mind and wished to plead not guilty. Evidence was given on an application to withdraw the plea and the Judge declined to accept that application.

Burnham has appealed against his conviction. That appeal has been withdrawn so that in each case all that is before us is an application for leave to appeal against sentence. Burnham was sentenced to five years and McLean to four years imprisonment; McLean's being cumulative upon a short sentence to which she was already liable.

The maximum penalty applicable in respect of each person was 10 years which was increased from seven years in 1997. The offences were committed in February 1998 so that the new maximum is applicable and that, in my view, makes a difference.

The sentencing Judge had the advantage of there being a trial in McLean's case and, with respect to Burnham, witnesses were called on sentencing because there were disputes of fact. So that, again, the question of the circumstances in which the offences were committed was litigated before His Honour.

I shall quote some of what the Judge said as to his conclusions on the evidence. His Honour said:

"What you both engaged in was a savage, vicious and unprovoked beating. You both, in my view, were equally involved except that you, Burnham, started the assault. And I am satisfied had you not started it you, McLean, in all probability would not have become separately and individually involved in this offence. So to that extent your culpability, Burnham, is greater than yours, McLean."

His Honour then dealt with other matters and went on tosay:

"Mr McLachlan" - who was one of the witnesses - "has summed up the nature of the assault that you both engaged in in this way: 'Wheildon was - the police officer that was trying to do his duty.' 'Burnham took him on. There was a full on fight. Wheildon was copping a hell of a flogging, he was kicked by both (of you).'"

His Honour went on to say:

"It is in my view difficult to imagine a more serious instance of assault occasioning bodily harm in company where a weapon was not used. There must have been only millimetres between bodily harm and grievous bodily harm, and you were fortunate that you are not before me charged with causing grievous bodily harm.

You, Burnham, got into Sergeant Wheildon with steel capped boots. You, McLean, got into him with your shoes. The assault, on the evidence of Mr McLachlan, lasted for some four or five minutes and during that time, notwithstanding resistance by Sergeant Wheildon, you were both getting the better of him."

The Judge also found that serious injuries were caused to the victim.

I take further details as the facts principally from the outline of the applicant McLean. The two applicants were among a group of people drinking in a park. Burnham was assaulted and McLean went to ask someone to call the police, apparently to protect Burnham.

The complainant, Sergeant Wheildon, was off duty at home, but the request for assistance came through to him and he went to the park out of uniform and found Burnham sitting against verandah railings. He knelt beside Burnham and told him he was a police sergeant and asked him whether he was all right.

Burnham told Wheildon to, "Just fuck off and leave me alone." Wheildon then attempted to lift Burnham onto his feet and said, "Come on you'd better come home", which elicited further abuse from Burnham who began punching Wheildon. McLean joined in either hitting Wheildon on the back of the head or grabbing him from behind.

Wheildon slapped McLean in an effort to fend her off. Both applicants punched Wheildon. He was knocked to the ground and they then both kicked him while he was on the ground, Burnham wearing steel-capped boots.

The fight stopped when another person intervened to save Wheildon from punishment. The main damage to Wheildon was to his left eye and his nose. He had what was described as a comminuted blow out fracture of the left orbital floor, that being the floor of the cavity containing the eye. It seems that that must have been caused by a kick.

The Judge found that Wheildon suffered a broken nose and nerve damage to the lesser side of the face and he still, at the date of the trial, October last year, suffered from numbness to his left upper gum and teeth. The Judge also found there was bruising about the face, body, legs and right hand, and that at the date of hearing below Wheildon still suffered pain in his foot.

According to the statements made below to the Judge, the most serious permanent effect on Sergeant Wheildon may have been his loss of confidence. There is an impact statement which says that prior to the assault he was an active operational police officer who was prepared to visit incidents alone, but since the assault occurred he was reluctant to perform any operational duties and did not want to go out alone at night.

Burnham had a relatively minor criminal history, McLean a more substantial one. McLean's history included a previous conviction for assault, one assault on police producing a sentence of six months' imprisonment in 1992. As I have mentioned, Burnham received a longer sentence, five years as against four for McLean. No complaint is made here about parity and the reason why Burnham got a longer sentence was that despite his lesser criminal record he had a greater role in the assault.

In support of Burnham's application for leave to appeal against sentence, reliance is placed particularly upon the decision of this Court in Kazakoff, CA No 236 of 1998, 27 August 1998, an Attorney-General's appeal.

Kazakoff, like these applicants, assaulted a policeman acting in the course of his duty; Burnham and McLean are in their thirties. Kazakoff was a considerably younger person, having just turned 17 at the relevant time. In Kazakoff's case two police arrived to quell a disturbance which had apparently subsided by the time they got there. Shortly after their arrival a fight broke out and the two police tried to stop it, but a number of people moved in to attack them. One of the police, the complainant, went to his colleague's assistance and was himself attacked by a number of people. He was punched and Kazakoff hit him in the head with a substantial piece of timber and then struck him again causing him to fall to the ground. In that position he was surrounded by a number of people who commenced to kick him

The complainant was left with a laceration at the top of his head, fractured nose and severe swelling to the jaw. It is stated in the reasons of Ambrose J, who gave the principal set of reasons, that the complainant suffered quite severe injuries and received operative treatment which had not been entirely successful. The complainant was found by tests to have suffered some brain damage; the extent of that and whether it was permanent were unstated.

The original sentence was two and a half years with a recommendation for parole after 10 months. There had been a plea of guilty. Ambrose J said, in effect, that had there been a trial, a significantly heavier sentence than one of four years would have been appropriate. His Honour said that the Crown's contention was that the penalty should be four years taking the plea of guilty into account but that a sentence of four years (which this Court imposed) should not be regarded as a comparable sentence for future offences of that sort. A parole recommendation after 18 months was specified. Now, the argument has been that if one has regard to Kazakoff's case the present sentence seems to be excessive. That is, it is suggested that the sentence imposed by this Court of four years in Kazakoff's case shows that five years cannot stand, for example, in respect of Burnham and shows that five years and four years are both outside the range.

It is my opinion that despite the reservations which are expressed in the reasons of Ambrose J as to the usefulness of the sentence in Kazakoff, it is of some assistance in the present case and certainly suggests that the sentences imposed here are too high.

I was at one stage troubled by the view that the sentences, although high, were not at such a level as to warrant interference by the Court; but the better view is that the Court should reduce the sentences, leaving them still at a substantial level but at a level which better accords with Kazakoff's case and the other comparable sentences to which we have been referred.

In my opinion, although this course is slightly unusual, the Court is obliged to reduce the sentences but not obliged to reduce them greatly. I would grant the applications in each case, allow each appeal and reduce the sentences in Burnham's case from five years to four years and in McLean's case from four years to three years.

DAVIES: I agree.

THOMAS JA: I agree.

PINCUS JA: Those will be the orders, gentlemen.