R v Elliott[2001] QCA 507

COURT OF APPEAL

McMURDO P

McPHERSON JA

CHESTERMAN J

BRISBANE

DATE 14/11/2001

JUDGMENT

THE PRESIDENT:  Mr Justice Chesterman will deliver his reasons first.

CHESTERMAN J:  The applicant seeks leave to appeal against sentences imposed upon him by Judge Nase in the District Court on 23 April 2001.  He pleaded guilty to one count of unlawfully doing grievous bodily harm to Michael Condon and one count of assault occasioning bodily harm to Benjamin Condon.  The offences were committed at the same time, on 20 February 2000.

Benjamin Condon was 19 years of age and had moved into a rented house.  He invited a number of friends to a house- warming party.  His younger brother, Michael, who was 16 attended but the applicant had another man called Bannon observe the festivities and joined in.  They had not been invited and were a little older than the guests.  The applicant had been drinking heavily and his behaviour at the party was disruptive.  He and Bannon moved from group to group arguing and causing unpleasantness.  They were asked to leave but refused.

Some time after midnight Mr Michael Condon, the father of Benjamin, arrived to take his younger son home.  He was made aware of the applicant's misbehaviour and it seems he was asked if he could help to have him leave.  Mr Condon was, of course, considerably older than the party goers.  He was 41. He spoke to the applicant and Bannon and asked them politely but firmly to leave.  They apparently agreed but as they were walking from the premises past Mr Condon the applicant struck him a severe blow to the mouth breaking his front teeth and causing him to fall dazed to the ground.  His son, Benjamin, went to assist him and was also struck by the applicant in the mouth.  The applicant aimed a second punch at Benjamin but missed.  He and Bannon then left.  Mr Michael Condon lost two upper front teeth.  His son also suffered fractures to his teeth but they had been saved. 

The applicant was 23 years of age at the time of the offences. He has a substantial criminal history for violent offences.  On 29 October 1996 when he was 19 he was convicted of assault occasioning bodily harm.  He was fined $400 and ordered to make restitution in the sum of $800. 

On 4 March 1997 he was again convicted of assault occasioning bodily harm.  As well, he was convicted of assaulting police and the serious assault of a police officer.  He was sentenced to perform 160 hours of community service and ordered to pay $600 compensation.

Over the next 18 months he twice breached the obligations imposed on him to perform community service.  On 20 September 1999 he was convicted of causing wilful damage, then there followed these offences in February 2000.

The applicant was sentenced to serve two and a half years' imprisonment for the offence of causing grievous bodily harm. A recommendation was made that he be eligible for parole after serving a third of the sentence, that is, 10 months.  On the charge of assault occasioning bodily harm he was sentenced to 12 months' imprisonment with the recommendation that he be eligible for parole after serving four months.

The applicant complains that the sentences are manifestly excessive.  He points essentially to the good recovery made by the complainants from their injuries and the fact that his criminal misbehaviour has always been associated with an excessive intake of alcohol which as a result of his most recent experience he has given up.  In passing sentence Judge Nase said:

"It is correct, I think, to say that the injuries and in particular the injury to Mr Condon, although serious, are not as serious as many of the cases that come before the Court on charges of doing grievous bodily harm.  The seriousness of your conduct is confined not only by the nature of the injuries but also by the general circumstances.  Those include, the assaults were unprovoked and carried out in circumstances where you had intruded into another's home and then refused to leave. 

Mr Condon was an older man who had not behaved in a threatening way to you.  He was effectively king hit without warning.  You have also a number of past convictions for offences of violence.  On your behalf you have pleaded guilty to each offence.  You have a good work history.  You participate in sport."

His Honour referred to the evidence that the applicant had given up drinking so that it was likely that he would not re-offend.  Nevertheless, his Honour thought that deterrence was an important consideration and that the seriousness of the offences and the applicant's prior history of criminal violence meant that a substantial sentence should be imposed. I cannot see that the sentencing discretion has miscarried.  His Honour correctly, in my view, identified the relevant factors.  This was a serious attack by a young man on an older one without cause or provocation.  The applicant was an intruder in the younger Mr Condon's home and had refused requests to leave.

The law must protect the sanctity of homes and protect those who enjoy innocent pleasure in them from the violence of strangers.  To the extent that the applicant had demonstrated a realisation that his conduct was unacceptable and that he should change his ways the recommendation for early parole was sufficient recognition. 

This Court in Grimley, Court of Appeal 362 of 1999 said that Dodd, Court of Appeal 241 of '98, was a principal guide in sentence appeals for the offence of causing grievous bodily harm.  Dodd was 26 and was sentenced to 18 months' imprisonment with the recommendation for consideration for parole after serving six months.  He struck the complainant, in that case, with his fist to the side of the face.  It was a king hit fracturing the complainant's jaw in three places and knocking out teeth.  The motive for the attack was the belief that the complainant who was an engineer on a construction project was unfairly critical of some of the applicant's friends who also worked on the project. 

The applicant had a good work history, was of good reputation and had no previous convictions.  By comparison, this case is more serious by reason of the applicant's substantial prior history of violence and the fact that he intruded into the complainant's home.  Although the sentence is substantial it is not, in my opinion, manifestly excessive and I would refuse the application for leave to appeal.

THE PRESIDENT:  I agree.  The applicant pleaded guilty at an early stage.  He tendered a number of favourable references. He appeared to demonstrate genuine remorse and to his credit has sought help, apparently with some success, for his drinking problem which was central to his offending behaviour in this case and to his prior criminal history. 

This offence of grievous bodily harm was a less serious example of the serious offence of grievous bodily harm.  But as Mr Justice Chesterman has demonstrated there were serious aspects to this offence.  It was committed without provocation.  The applicant was on the complainant's own property uninvited and had refused to leave before assaulting both complainants.

Of particular concern is the applicant's prior criminal history for offences of violence.  Whilst a slightly more lenient sentence could have been imposed to reflect the applicant's efforts at rehabilitation the sentence imposed was by no means manifestly excessive.  The application for leave to appeal should be refused.

McPHERSON JA:  I agree.  The application should be dismissed.

THE PRESIDENT:  The order is the application is refused.