R v Hoogsaad[2001] QCA 27

COURT OF APPEAL

McPHERSON JA

MACKENZIE J

MULLINS J

CA No 277 of 2000

THE QUEEN

v.

CRAIG JOHN HOOGSAAD

BRISBANE

DATE 09/02/2001

JUDGMENT

McPHERSON JA: On the night of 19 November 1999 the complainant Norman Gosling was at the Queens Hotel in Ayr with a friend named Gavin Wain. It was the end of the cane cutting season and there were numbers of men drinking there. 

They left at about midnight and went outside where a Ford Gemini was parked with people sitting in it. They included the driver, Robin Boyd, and the applicant now before the Court, who is Craig Hoogsaad.

For some reason an argument broke out between Gavin Wain and Robin Boyd, which was interrupted when Wain broke the windscreen of the Gemini. Boyd initially drove off but then returned to the scene demanding compensation for the broken windscreen. The complainant himself was throughout a mere bystander or observer and took no part in the argument. Then the applicant suddenly struck him with a crowbar. Johnson, who was one of the applicant's companions, said he saw the applicant hit the complainant on the arm and the leg with the bar, whereupon he fell to the ground and the applicant then hit him on the head with the bar. Johnson thought that the complainant had hit his head on the gutter as well.

Another of the applicant's companions saw the applicant "hammer" the complainant with the iron bar. He hit him "a few times" around the arms and legs and then used the bar to strike him two blows on the head. The complainant was knocked unconscious. He was taken to the local hospital and then transferred to intensive care at the Townsville General Hospital.

Dr Sarah Olsen, who examined him on admission, describes how she found a large boggy parietal area which was tender and had a small laceration with brain matter protruding. Scans disclosed a substantial skull fragment of 1½ cms in dimension associated with a depressed fracture and intracerebral haematoma.

The complainant was at once taken to the operating theatre where a 5 x 4 cm depressed skull fragment was removed. He was discharged on 29 November, but returned in February of the following year to have an acrylic plate fitted to his head. 

The complainant, who was 32 years old at the time, now has a speech impairment which one may suspect will be permanent. He suffers constant headaches, numbness around his head and fingers, and a sore jaw that he is unable to open properly. On some occasions he has loss of sight. He has pains in his arms and legs. He suffers from sleep disruption through constant headaches, ultra sensitivity to noise and loss of body strength. As a result of all this, and particularly of his speech impairment, he is reluctant to go out and mix with friends or other company because of the embarrassment he feels.

He has a wife and children aged ten, eight and one. His condition has caused stress to the family as well as financial problems.  He is a cane truck driver and was out of work for some six months or so as a result of his injuries. He could not pay his debts and had to borrow money. He is unable to pursue his previous recreational activities, such as fishing, motorbike riding and playing with his children. His own and his family's quality of life has been quite seriously diminished.

The applicant left the scene after the complainant had been injured. He was located on the following day on a McCafferty's bus travelling from Ayr to Brisbane.  He denied hitting the complainant. In his record of interview he said, "I don't think I was going to go out beating people with fucking steel bars for smashing a window that wasn't even mine." Later, however, he pleaded guilty to an ex officio indictment and was sentenced in the District Court on 20 September 2000 to a term of five years' imprisonment for doing grievous bodily harm.

This is an application for leave to appeal against his sentence. A term of five years is admittedly within the range for an offence of this character and the degree of seriousness. So much has not really been disputed before us or in the Court below.

What is said is that the learned Judge might have recommended the applicant for parole after the two year mark in the sentence, which would have given him the benefit of a release date about six months earlier than would otherwise be expected. A comparison was drawn with the decision in R v. Swayn (CA 59 of 1998), in which a sentence of five years imposed for doing grievous bodily harm in somewhat similar circumstances to which was added a further six months for possession of drugs. The applicant in that case was involved in a drunken fight with another young man at a nightclub. After being ejected from the premises, he followed his victim and felled him with a blow to the back of the head. He then kicked and stamped on his head, causing bruising around the eye, a depressed zygoma, serious haematoma to the left front of the skull, and fractures of various facial and head bones. As a result, the victim suffered post traumatic amnesia, high level balance and memory problems and difficulties with his attention and concentration faculties, as well as double vision and hearing loss. He was diagnosed as a chronic invalid who was unemployable. His condition was therefore considerably more serious than that of the complainant in the present case, which is not to underrate the seriousness of the complainant's disabilities.

To that extent, it would have been open to the learned sentencing Judge here to differentiate in favour of the present applicant, either in relation to the head sentence or  by making a parole recommendation of the kind sought, especially having regard to the fact that the applicant's plea of guilty and what is said to be his express remorse in the present case operated in his favour.

Like the offender in Swayn who was 22 years old, the applicant here is a young man, who was aged 19 at the time of the offence and 20 when sentenced. Each had a record of prior offences, the applicant's being the more persistent of the two, but neither of them was of real relevance to the sentencing process. In the present case his Honour said that the applicant's record was not really indicative of any offences of a violent nature.

The two cases are therefore in some ways comparable, and it has to be borne in mind that in Swayn's case there was no plea of guilty, but a fiercely contested trial, at the end of which the Judge said he regarded the accused in that case as a liar.

Here there are, however, some respects in which the applicant's criminal conduct seems to me to be fairly capable of being regarded as more serious than that of Swayn. One is that he used a potentially lethal weapon, described as an iron bar, and at one stage, I think, as a pointed iron bar, that was about one metre long and an inch thick in diameter. Precisely where he obtained this bar is not apparent, and has not been explained by anyone who may have been aware of it. Another is that the complainant here had not been involved in any kind of altercation or physical struggle with the applicant before he was set upon in the way I have described. He was simply a bystander. Even now the complainant does not know what brought about the attack on him any more than, in fact, we do. The complainant has no memory of what happened, and the applicant himself has not explained, according to the material we have, precisely what led him to commit the assault.

In terms of criminality there is therefore little to choose between the two offenders, and in some ways the applicant's behaviour was the more reprehensible of the two. What else can be said when a man is suddenly attacked for no discernible reason whatever with a dangerous weapon like an iron bar.

On any view of the matter, the features favourable to the applicant, such as his plea of guilty in the present case, are in my view not of such significance as necessarily to call for recognition of a substantial margin in the penalty to be imposed in his case compared with that of Swayn. To have imposed on the applicant here a sentence at the same effective level as for Swayn is not, in my opinion, of itself enough to demonstrate that the sentencing discretion in this instance must have miscarried.

The process of sentencing cannot be reduced to the level simply of matching colours. For all that, however, I remain a little concerned that no specific explanation was given of why there was no discount for the applicant's early plea of guilty. Nevertheless, if the Court were to interfere here, there would, I think, be no real room for the exercise of any judicial discretion in the sentencing process at all.

In the end, the differences between the two cases which we have been considering are not so obvious as to enable it to be said that a parole recommendation was necessarily called for here, or that a lower head sentence should have been imposed.

In the result, the sentence imposed on the applicant was in my opinion not manifestly excessive. I would consequently dismiss the application for leave to appeal in this matter.

MACKENZIE J: Yes, I agree. I would only add that the fact that no non-parole period was specified in a case where the learned sentencing Judge said that he took into account the plea of guilty, implies that the starting point for sentencing was probably of the order of five and a half to six years imprisonment.

Where a Judge makes allowance for a plea of guilty and other mitigating circumstances by reducing the head sentence, it is in my view a good and desirable practice to make what has been allowed explicit so that the sentencing process is transparent.

The facts of this matter are that the complainant was uninvolved in the incident which caused the violence. The only apparent explanation for the attack on him seems to be that he was attacked because the applicant believed he was associated with the person who broke the glass. 

The complainant has suffered significant disabilities and loss of amenities of life which have been detailed by Mr Justice McPherson. The case also involved the use of a weapon which was capable of causing serious injury and did, in fact, cause serious injury. That in my view is a serious factual aggravation of the offence.

In Swayn, for example, it was not a case where a weapon was used but it appears to have involved only kicking and stomping, reprehensible as that might be.

I would agree with the order proposed by Mr Justice McPherson for the reasons advanced by him.

MULLINS J: I agree.

McPHERSON JA: Yes, the order is that the application for leave to appeal will be dismissed.