R v Deacon[2000] QCA 131

COURT OF APPEAL

de JERSEY CJ

DAVIES JA

HELMAN J

CA No 438 of 1999

THE QUEEN

v

DEACON, Peter William Respondent

EX PARTE ATTORNEY-GENERAL (QUEENSLAND)

BRISBANE

DATE 13/04/2000

JUDGMENT

THE CHIEF JUSTICE:  The Honourable the Attorney-General appeals against a sentence of five years' imprisonment suspended after seven days for an operational period of five years, imposed on the 44 year old respondent upon his conviction by a jury of the offence of having done grievous bodily harm with intent.

The respondent had spent 503 days in custody referable to this offence prior to his being sentenced.  The learned sentencing Judge did not declare that time to have been served in respect of this five year term of imprisonment.  He did, however, have regard to it.  He pointed out that that period of approximately 16 and a half months equated to a 33 month sentence of imprisonment.

The sentence the Judge imposed is, therefore, equivalent to a sentence of approximately six years and four and a half months, suspended, however, after one year four and a half months.

It is submitted on behalf of the Attorney-General that a sentence of six years' imprisonment should have been imposed, coupled with a declaration that the 503 days served are to be taken as time served under that sentence.

Before the learned Judge, the Crown Prosecutor submitted that the respondent should have been imprisoned for a period of seven to eight years.  The respondent's counsel submitted on the other hand that five to six years' imprisonment should be imposed, with suspension after 503 days.

Counsel for the respondent before us takes the position that the sentence, although lenient, should not be disturbed having regard to the approach which characterises these appeals as described in Melano [1995] 2 Qd R 186.

The respondent was previously married to a woman who, at the time of this incident, was living with the 53 year old complainant man.  The respondent's former wife had taken out a domestic violence protection order against the respondent.  On the night of the incident when the complainant and the woman arrived at their home, the respondent was present, thereby breaching the protection order.

In accordance with the Judge's findings, the complainant, who was himself armed with a baseball bat, attacked the respondent by swinging the bat towards his head.

The respondent wrestled the bat from the complainant and then proceeded to strike the complainant, as the respondent claimed, in self-defence, but he went too far, striking two or three blows at the complainant's head, fracturing the complainant's cheek bone, eye socket bone and lower left jaw and lacerating and bruising his scalp and head.  Surgery was necessary.

The respondent had no prior convictions.

The learned Judge accepted on the basis of a psychiatrist's report and other material that the respondent presented no danger to the community generally and that this violence was out of character.  The respondent is an educated man with a useful employment history.

He was acquitted on two other counts, assault occasioning bodily harm in respect of this same complainant, but on an earlier occasion and assault occasioning bodily harm in respect of his former wife on this occasion.

The respondent had, rather unusually, pleaded guilty to both those charges and the present one at the committal but he withdrew the pleas because of what was said to be the Crown's unwillingness to persist with an agreement that it would seek no more than five years' imprisonment for the charge of doing grievous bodily harm with intent, were there to be a plea of guilty.

The learned Judge said that he gave the respondent "some credit" for his willingness to plead guilty to having done grievous bodily harm with intent at that earlier stage.

It is difficult to see why that was justified.  In the first place, the plea was not relevantly an indication of remorse for, as the Judge found, the respondent was not remorseful towards his victim, the complainant.  Further, the plea, once withdrawn, led to no saving of public resources and did not spare witnesses the burden of having to give evidence at the trial.

This is a sad case in many respects but it does seem to me that the learned Judge unfortunately sight of the essentials of the matter, which were that the respondent intended to do grievous bodily harm to the complainant and did so with a weapon, the bat, inflicting two or three savage blows to the head and injuring him at night-time at the victim's place of residence in circumstances where the respondent's presence there amounted to breach of a domestic violence protection order.

The early entry of the plea of guilty subsequently withdrawn should not have led to any credit in this particular case, in my respectful view.

I consider that a sentence which results in the respondent's having to serve only one year four and a half months' imprisonment for this offence warrants correction on this appeal.  Cases like Brown CA 155 of 1996 and Thompson CA 575 of 1996 support the view, allowing for the moderation which traditionally characterises the Court's approach to attorney's appeals, if inclined to allow them, that the respondent should now be sentenced to five years' imprisonment, coupled with a declaration under section 158 of the Penalties and Sentences Act, that he has served 510 days' imprisonment under that five year term, comprising 503 days served prior to his being sentenced in the District Court, covering the period from 29 July 1998 to 14 December 1999, and seven days following the sentence, that is from 14 December 1999 to 21 December 1999.

I would allow the appeal and set aside the order made in the District Court and impose a sentence and make the declaration I have just indicated.

DAVIES JA:  I agree.

HELMAN J:  I agree.

HIS HONOUR:  Should a warrant issue?

MR MOYNIHAN:  Yes, your Honour.  I'd ask that it lie in the Registry for seven days.

THE CHIEF JUSTICE:  A warrant will issue for the arrest of the respondent but lie in the Registry for the next seven days prior to its being executed.