R v Greig; Ex parte Attorney-General
[2000] QCA 276
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- Appeal Determined (QCA)
- R v Greig; Ex parte Attorney-General[2000] QCA 276
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R v Greig; Ex parte Attorney-General[2000] QCA 276
R v Greig; Ex parte Attorney-General[2000] QCA 276
COURT OF APPEAL |
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de JERSEY CJ |
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THOMAS JA |
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MULLINS J |
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CA No 427 of 1999 |
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THE QUEEN |
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v. |
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SHANE ALLAN GREIG | Respondent |
ATTORNEY-GENERAL OF QUEENSLAND | Appellant |
BRISBANE |
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DATE 13/07/2000 |
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JUDGMENT |
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THE CHIEF JUSTICE: The respondent pleaded guilty in the District Court to the offence of unlawfully doing grievous bodily harm. The learned Judge sentenced him to 12 months' imprisonment to be served by way of intensive correction order and also ordered that he carry out 240 hours' community service.
The Honourable the Attorney-General appeals on the ground that the sentence is manifestly inadequate and as well on the ground that a penalty of that character could not lawfully have been imposed. The latter contention is correct as was in effect conceded.
It follows from McCandless, Court of Appeal 215 of 1999 and other cases in fact, that being a form of imprisonment an intensive correction order cannot be combined with a community based order as was done here. This Court must therefore allow the appeal and determine penalty afresh.
The Attorney-General's counsel submitted that a sentence in the range of three to five years' imprisonment should have been imposed. That range is drawn from Buckingham and others, CA Nos 26, 27 and 28 of 1996 where, in relation to a roughly comparable event, a range of two to four years was suggested at page 3 of Mr Justice Helman's reasons with which the other members of the Court agreed. That was an attack by a number of youths whereas in this case, as will emerge from what I say shortly, only the respondent was involved.
On the other hand, there was here a degree of premeditation which appears to have been absent in Buckingham.
I will revert to the question of appropriate penalty in the context of determining a term of imprisonment because I believe that is what should have been imposed here.
The complainant was a 31-year-old man returning home in the early hours of a morning, having been drinking at a Caloundra nightclub. He met the respondent, a 27-year-old man, previously unknown to him. They went consensually to the respondent's residence, consumed some alcohol and became sexually intimate. The complainant performed an act of oral sex on the respondent for some two to three minutes then, sensing hesitation on the part of the respondent, stopped and departed. The two men parted on the basis that the complainant would visit the respondent the following Sunday night.
The respondent subsequently informed his sister of what had occurred and she apparently told their father. The father, on the material before the Court, challenged the respondent in a somewhat intemperate way about what the respondent had claimed. This appears to have fired up the respondent, pressured by his father, to demonstrate that what had occurred at the unit was, as put by the sentencing Judge, without the respondent's consent and contrary to the respondent's nature and wishes; hence the offence.
On the Sunday evening, the complainant encountered the respondent in the street. The respondent said to the effect, "I can't find my bicycle.", and asked the complainant to follow him. After some eight paces, the respondent turned and struck the complainant across the face with a 45 centimetre long bicycle chain. The complainant ran off but slipped and fell. The respondent caught the complainant and hit him over the head and chest with the chain. This involved some three to five blows. A bystander's intervention stopped the attack.
The result of all of this for the complainant has been a permanent 70 per cent loss of vision in the left eye.
The learned Judge was urged by the prosecutor to imprison the respondent. In declining to do that, the Judge referred to the circumstance that they had been drinking on the Sunday, separately that is; the pressure on the respondent from his father; that the incident was out of character for the respondent, the respondent having no relevant prior criminal history and a good employment record and that the respondent was remorseful.
The Judge was provided with a presentence report from a psychologist. The psychologist refers to the respondent's problems with alcohol, problems he was seeking to address, and described him as "a decent and genuine individual who expresses remorse and grief for the act with which he has been charged".
The view of the psychologist was that it was confusion over the sexual encounter which had led to the respondent's outburst and the psychologist suggested that the respondent's mature development would be assisted were he to remain in the community.
A number of circumstances render the offence very serious: the nature of the weapon; the number of blows; the premeditation which led to the attack; that the blows were directed to the head and chest; that the complainant offered no provocation; that the respondent pursued the complainant as the complainant tried to flee and the serious nature of the injuries inflicted on the complainant leading to that significant residual disability.
Almost invariably such an offence should be visited with a term of actual imprisonment.
I have referred to Buckingham and others. There is also Dodd, CA 241 of 1998. This was, like the attack in Buckingham which Mr Justice Helman there described, a "vicious attack with a weapon on a defenceless victim", a very serious attack.
I respectfully endorse also Mr Justice Helman's following observation in Buckingham that "Such incidents are regrettably by no means uncommon and a clear message must go out from the Courts that those who do things like this will suffer substantial punishment."
The respondent focuses before us on his feelings of confusion and the pressure applied to him following the earlier encounter. Those circumstances may explain why the respondent did these things. But they could not properly be relied on to warrant lenient treatment. The predominant consideration at this stage must be general deterrence.
As I said at the outset, Buckingham would suggest a general range of two to four years' imprisonment for crime of this character. The circumstance, however, that the respondent has by now carried out seven months of the 12 months intensive correction order program, including completing an anger management program, warrants moderation in the setting of both the head sentence and the period of imprisonment actually to be served. I am in no doubt that a period of imprisonment must be served in actual fact. In other words, that it would be entirely inappropriate to impose a term of imprisonment but fully suspend it, even allowing for the circumstance that the intensive correction order program has been partly completed.
I consider that the head term to be imposed in this case should be two and a half years' imprisonment. In saying that, I believe that the learned sentencing Judge would have been amply warranted imposing a term of three years. But bearing in mind that this is an Attorney's appeal and the other matters to which I have referred, I would select a term of two and a half years to be imposed now.
The question is how much of that term should actually be served. Again, substantial allowance must be made for the circumstance that, first, this is an Attorney's appeal, and second, a substantial portion of the intensive correction order program has been completed. I consider, allowing for those particular features, that six months should be served in terms of actual incarceration.
I would allow the appeal, set aside the orders made below and order that the respondent be imprisoned for a period of two and a half years, suspended after six months for an operational period of three years.
THOMAS JA: I agree. I would add that the structure of the order below, mainly a combination of an intensive correction order along with a separate community service was inappropriate. I would note, however, that not all community-based orders are inconsistent with orders of imprisonment, as the recent decision of this Court in R v. Vincent ex parte Attorney-General [2000] QCA 250 shows. However, the imposition of an additional concurrent community service order seems to me to be inherently inconsistent with the nature of intensive correction orders. The sentence below then, quite apart from any question of quantum, was flawed.
I agree with the reasoning of the Chief Justice and with the orders that he proposes on the remaining issues in the appeal.
MULLINS J: I agree with the reasons of and the orders proposed by the Chief Justice.
I also agree with the comments made by His Honour Justice Thomas in relation to the sentence imposed below.
THE CHIEF JUSTICE: I also agree with that reservation expressed by Justice Thomas.
The order will be as I have indicated and there will be an order that a warrant issue for the arrest of the respondent to lie in the Registry for a period of 48 hours prior to its being executed.