R v Toohey[2001] QCA 149

COURT OF APPEAL

McPHERSON JA

THOMAS JA

HOLMES J

CA No 351 of 2000

THE QUEEN

v.

RAYMOND JEFFREY TOOHEY (Applicant)

BRISBANE

DATE 19/04/2001

JUDGMENT

THOMAS JA:  This is an application for leave to appeal against a sentence of two years' imprisonment for unlawful wounding.  The applicant was 24 years old at the time of the offence and had some criminal history, although not for offences of violence. 

What happened was this.  The applicant was one of the first arrivals at the Tully Hotel at 10.00 a.m. on 9 June 2000.  Because of previous problems involving the applicant, which are said to be irrelevant to the present proceedings, and because he was already intoxicated, the complainant publican refused to serve him and asked him to leave.  The applicant refused.  The complainant notified the police.  They came to the hotel and told him that he was not allowed on the premises.  He left, and so did the police.  However, he returned about half an hour later.  The police were again called.  They again spoke to the applicant who again left.  However, by 12.30 p.m. he was back at the hotel again.  He was again asked to leave by the complainant and disappeared for about 10 minutes but again returned.  The complainant again called the police who, not surprisingly, said it was going to be quite a while before they could get to the hotel. 

The complainant then approached the prisoner, told him to leave and escorted him to the rear entrance of the beer garden.  Shortly after this the applicant's girlfriend saw him with a 10-ounce glass in his hand.  She saw him smash it on a stair.  He retained the base with its shard and went to the entrance of the hotel where he screamed and yelled abuse.  When he attempted to re-enter the hotel the complainant told him to get out.  The applicant lunged at the complainant and swung the broken glass at him.  The complainant raised his arm to protect himself and the glass caused injuries to his left arm.  The complainant then punched the applicant twice, upon which the applicant backed off. 

The complainant was in due course treated for four deep cuts to the upper left arm which required numerous sutures.  He also required treatment for a broken finger which was a consequence of his response which must be regarded as an act of self-defence to an unprovoked attack.  The victim impact statement reveals a good deal of disturbance to the life of the complainant, although he fairly concedes that he is slowly adjusting. 

One of the submissions in favour of the applicant is that he is relatively young, 24, and that he has a limited criminal history with no previous offences of violence.  However, when one studies his criminal history it reveals that he is a frequent enterer of other persons' dwelling-houses without excuse.  The offence in question suggests that he was unable to accept exclusion from the hotel and in my view the applicant's effrontery and persistence in this protracted series of episodes is extraordinary.  His use of a broken glass is a serious matter.  Crimes of this kind need penalties which will deter the applicant and others from like conduct.

Counsel for the applicant submitted that the blow was a single reckless act which was not directed to the face, head or neck.  However, it is noted that he broke the glass some time before the attack and it cannot be regarded as a spontaneous act.  Moreover, the complainant put his arm up to defend himself, and it is not to be inferred that the applicant actually directed these blows to the area of the arm. 

It was also submitted that the injury was not so severe as to cause permanent injury, and of course the charge is merely one of wounding.  However, the maximum penalty for that offence is now 14 years' imprisonment, the penalty having been increased from seven years to 14 years in 1997. 

The plea of guilty is a genuine circumstance of mitigation although the learned sentencing Judge rightly noted that the applicant had declined to be interviewed and that in pleading guilty he had only faced up to the inevitable.  However, his Honour gave credit for the plea.

Counsel for the applicant submitted that the appropriate range for this type of offence is 12 to 18 months' imprisonment citing The Queen v. Hays, ex parte Attorney-General (1999) QCA 443.  I do not think that so broad a submission is justified.  The review of cases in that matter canvasses (at paragraph 16) a number of previous decisions and observes that all of those particular decisions have resulted in sentences of between 1 and 3 years' imprisonment.  But the Court then went on to express the view that the circumstances in Hays' case revealed a lesser degree of criminality, a lesser prior criminal history and a plea, which factors in one or other of the cases under review had been lacking.  There are certain special features in my view that apply in relation to the sentence finally imposed by the Court in Hays' case, including the circumstance that it was a sentence fixed upon an Attorney-General's appeal. 

In my experience a range of 18 months to two years is quite common in cases that were referred to by Mr Martin on behalf of the Crown as "pub glassings".  It is also my experience that more serious sentences are imposed when further aggravating features exist, and lesser sentences are imposed when either less serious circumstances exist or further circumstances of mitigation are shown.

In the present case I regard the circumstances, including the lead-up events, as characterising this offence as a relatively serious one.  It has the feature that a publican in the situation of this complainant had no other recourse than to act as he did.  He had endeavoured, by all proper means, to deter the persistent attempted invasions of the applicant.  Persons in such a situation deserve protection from the Courts.  The complainant was at all material times obviously endeavouring to run an orderly public house.

With the above factors in mind it seems to me that whilst the sentence of two years was on the high side it lay within the range open to the learned sentencing Judge.  Having regard to an apparent degree of either premeditation or certainly of approaching the scene with the broken glass in his hand and the fact that the final criminal act was the culmination of persistent attempts to obtain entry to the hotel despite reasonable attempts to exclude him, I cannot say that the sentence was manifestly excessive.  I would accordingly refuse leave to appeal.

McPHERSON JA:  I ask Justice Holmes now to give her judgment.

HOLMES J:  I will not reprise the circumstances of the offence which have already been traversed in Mr Justice Thomas' judgment, other than to observe in relation to the smashing of the glass that it seems to have been accepted that it may have been inadvertent.  The Crown did not ask the learned sentencing Judge to conclude that it was deliberate.  It is, of course, significant that the applicant retained the bottom of the glass in his hand thereafter.

The applicant was 24 years old at the date of the wounding.  His counsel submitted that he had reacted, obviously excessively, to what he perceived was the complainant's intention to manhandle him as he had done on previous occasions.  He lived with his sister and her family and had three days per week work on a community employment program.  He has a history of problems with alcohol.  His criminal history dates back to 1994, but until he was sentenced for this offence he had always been dealt with in the Magistrates Court.  A number of the entries on his record are for Vagrants, Gaming and Other Offences Act charges probably consistent with his alcohol use.

The more serious entries are for unlawful use of a motor vehicle in 1997; a breaking and entering charge in respect of which he was fined in August 1998; and entering with intent and breaking and entering charges dealt with in October 1998, for which he was given probation.  He breached that order and was sentenced to six months' imprisonment on 9 August 1999.  There is no offence of a violent nature on his record.

The Crown had provided the learned sentencing Judge with a schedule of decisions on appeal and referred in particular to three cases, Queen v Robertson, CA number 103 of 1989, Queen v Bouma, CA number 261 of 1988, and Queen v Hallett, CA number 100 of 1997, each of which involved a sentence of three years' imprisonment.  They were identified by the Crown Prosecutor as being the most relevant on the schedule.

Robertson involved a conviction after a trial.  The applicant had deliberately struck the complainant in the face with a beer jug with sufficient force for it to break on impact.  The complainant sustained a broken nose and facial lacerations.  The sentencing Judge referred to him as "scarred for life" with a "fairly serious cosmetic disfigurement".  The applicant had a criminal history which included an offence of attempted rape, although there had been no offences of violence within the 12 years preceding the wounding.  Justice Williams, who gave the leading judgment, while not interfering with the sentence of three years referred to it as "towards the top of the range". 

Bouma again concerned an applicant convicted after a trial.  He had dragged the complainant, who owed him money, into a kitchen and then hit him, while he was either kneeling or seated, over the head with an empty bottle which shattered on impact.  He had further used what was left of it to cause lacerations to the complainant who sustained a number of puncture wounds to the face, neck and upper chest.  The Chief Justice, with whom the other members of the Court agreed, said that "in ordinary circumstances [the sentence] could reasonably be deemed too high and calling for some interference".  However, he was dissuaded by the applicant's substantial and serious criminal history from interfering.

Hallett similarly involved an applicant who went to trial.  The case involved a bar room struggle between the applicant and the complainant.  The applicant, who was lying underneath the complainant, thrust a broken glass into the complainant's face on a number of occasions, causing what the Court described as "quite significant wounding".  The applicant had a long criminal history, including a number of violent offences.  The Court referred to other decisions, including Robertson, which was described as setting the top of the range for such offences, and Melano, which entailed an Attorney's appeal against a sentence of 15 months' imprisonment suspended after three months.  In the latter context it noted that 15 months "may be taken as being at the bottom of the range for offences of this kind".

I am bound to say that each of the three cases seems to me, on its facts, rather more serious than the present one involving, in each instance, a worse attack, facial injury, an absence of remorse and an offender with a worse criminal history than the applicant's.  Although they were the cases specifically identified by the prosecutor at sentence, it is clear that they are of use only as representing the higher end of the range for woundings of this type.

Before us Mr Moynihan for the applicant referred to five decisions, Queen v Hays, ex parte Attorney-General (1999) QCA 443, Queen v Vickery, ex parte Attorney-General, CA number 62 of 1992, Queen v Melano, ex parte Attorney-General, (1995) 2 Queensland Reports 186, Queen v Darwin, CA number 98 of 1996 and Queen v Anders, CA number 571 of 1996.  All but one, Darwin, involved an Attorney-General's appeal. 

In Hays the Court substituted a sentence of 18 months wholly suspended for one of community service in the case of a 24-year-old respondent who had struck another young man on the chin with a glass after an exchange of heated words at a hotel.  The complainant was left with "noticeable but not disfiguring" scarring.  It was noted that the respondent was young, of previous good character and had pleaded guilty; all factors which went a considerable way in mitigation. 

However, the Court made it clear that even in the case of a young person who had not previously been gaoled and whose conduct was unpremeditated, conduct of this type would generally warrant a sentence of imprisonment.

In Vickery, the respondent who was 40 years of age had broken a glass and used it to strike the complainant, who had a history of harassment of the respondent and his companion but, on this occasion, had done no more than to approach and ask the companion to dance.  The complainant suffered severe facial injuries.  At first instance, the respondent was ordered to perform 200 hours of community service which he had performed by the time of the appeal.  Nonetheless, the Court substituted a sentence of 12 months' imprisonment which was reduced to allow for community service already performed.  It observed that a sentence of at least 18 months' imprisonment was warranted.

In Queen v Melano, to which I have already referred, the respondent was involved in an altercation with the complainant in a bar.  The complainant invited him outside to settle the matter but while they were still moving towards the door each pushed the other.  The respondent then struck the complainant on the right side of his head with a beer glass which shattered and caused him serious lacerations which left him with unsightly scarring.

The respondent, who was 26 years old, had a good work history and only a minor criminal history.  He was sentenced after conviction by a jury to 18 months' imprisonment suspended after three months.  The Court of Appeal, on the attorney's appeal, concluded that the sentence although "close to the border line" was not outside the range of a proper sentencing discretion. 

Anders was an Attorney-General's appeal against a sentence of one year to be served by way of intensive correction.  The respondent was a 22 year old with a number of previous convictions for assault occasioning bodily harm and one charge of unlawfully doing grievous bodily harm, although he had not previously been imprisoned.  The wounding occurred in a night-club where he had been pressing his intentions in an unpleasant way on two women who were in the company of the male complainant.  Unprovoked, he thrust an empty glass into the complainant's cheek so that it smashed on impact causing him facial lacerations and scarring.  Immediately after the assault the respondent, who appeared intoxicated, continued to behave in an abusive and aggressive way.  The Court of Appeal substituted a sentence of imprisonment for 18 months. 

Darwin was a prisoner's appeal. The applicant had been at a 21st birthday party where he had struck the complainant on the head with a beer glass and then twisted the glass into his head causing a number of scalp lacerations.  Although he had a criminal history the applicant had no record for violence.  He was sentenced to 18 months' imprisonment with are commendation for parole after six months, a sentence which the Court did not disturb.  Justice Williams, with whom the other members of the Court agreed, observed that a head sentence of 18 months was well within the range for an offence of this type.

Having reviewed the authorities I have come to the conclusion that a sentence of imprisonment of two years must be considered relatively severe in a case such as this, in which the injury was not a disfiguring facial injury (as is often the case.)  That of itself would not dispose me to interfere.  However I consider that the learned sentencing Judge erred in failing to give sufficient weight to mitigating factors so as to reduce the severity of the head sentence.

In particular, he failed to give proper weight to the applicant's youth, his lack of any history of violence and his remorse as exhibited by the plea of guilty.  Those features should, in my view, have been recognised by a recommendation of early parole or partial suspension of the sentence.

Having reached the conclusion that the sentence, as it is, should not stand, I would give leave to appeal against sentence, allow the appeal, quash the sentence of two years' imprisonment imposed below, and substitute for it a sentence of imprisonment of 18 months to be suspended after six months with an operational period of three years.

McPHERSON JA:  I think the sentence, in this case, might be slightly higher than I would have imposed, but after reflecting about it I do not think it can, or should be, altered in this Court.  I agree with the reasons which have been given by Justice Thomas.  Specifically, I would add that my experience of sentences in matters of this kind accords with his.

The application for leave to appeal against sentence should, in my view, be dismissed.

The order of the Court in view of what has been said is that the application is dismissed.

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