R v Ketchup[2001] QCA 508

COURT OF APPEAL

McMURDO P

DAVIES JA

WILLIAMS JA

CA No 240 of 2001

THE QUEEN

v.

ALGAN SAMUEL KETCHUP

BRISBANE 

DATE 15/11/2001

JUDGMENT

WILLIAMS JA: The applicant pleaded guilty to and was sentenced on 30 August 2001 with respect to one count of unlawful wounding and two counts of assault occasioning bodily harm. Consequent upon the commission of those offences he also pleaded guilty to breach of a Domestic Violence Order and to being drunk in a public place; those two summary matters can be ignored for present purposes. 

Count 1 on the indictment was that of unlawful wounding and the circumstances of that offence were as follows. Both the applicant and the complainant, his de facto, had been drinking heavily on 28 December 2000 in a house at Palm Island. Other persons were present for some time. Then the complainant and the applicant began to walk home. 

The next thing the complainant remembers is being hit on the head from behind, the blow knocking her to the ground. She was then hit again. It appears that she was in fact struck with a 40 ounce rum bottle. The second blow was delivered with sufficient force to break the bottle and that caused numerous lacerations to the face of the complainant. 

In her victim impact statement she says that she received 38 sutures. There are photographs in evidence which show the significant lacerations to the forehead and other areas of her face. The likelihood is that there will be some residual scarring.

The next offence, that of assault occasioning bodily harm, occurred on 29 March 2001. On this occasion the complainant and the applicant were at a house in Townsville and again were drinking heavily.  Other people were present including a young baby. The applicant became upset with the complainant and elbowed her in the mouth knocking her to the ground. Another woman then went to call the police however the applicant pulled the phone cord out of the wall and hit the complainant about the face with it. He punched her on a number of occasions. He also grabbed a bread and butter knife from his pocket and put it to the complainant's throat. The complainant said that her head was pushed down into the mattress causing her some breathing difficulty.

The complainant freed herself from the applicant but the assault continued. He apparently kicked her in the ribs some four or five times and also hit her with a wooden table leg in the region of the left knee. 

The third offence occurred on 12 April 2001. Again the parties had been drinking heavily at a hotel in Townsville. They went to a phone booth to call a taxi. Whilst at the phone booth the applicant used the handset of the phone to hit the complainant several times about the body. The taxi arrived and transported them to another hotel in Townsville. At that hotel the applicant grabbed the complainant, threw her money away and kicked her. He grabbed her by the hair and punched her repeatedly to the head and body. When the police arrived the complainant was noted to be bleeding from the forehead.

The sentence imposed was that of six years imprisonment with respect to each of those three counts, the sentences to be served concurrently but with a recommendation that the applicant be eligible to apply for parole after serving two years and nine months. A declaration was made that the applicant had spent 129 days in pre-sentence custody. 

It should also be noted that the sentencing Judge referred to the fact that he had given anxious consideration to making a serious violent offence declaration but ultimately declined to do so. 

The applicant was aged 37 at the time he stood for sentence. He has a significant criminal history. Of particular relevance for present purposes is the fact that he had 11 convictions for breaches of Domestic Violence Orders. The last two of those convictions related to the same complainant as was involved in the offences with which this Court is concerned. The other breaches related to earlier de factos. Those offences span the period 14 November 1991 to 20 June 2000. 

In addition to those 11 breaches of Domestic Violence Orders the applicant has the following significant criminal history. In August 1990 he was convicted of assault occasioning bodily harm. He was fined and given some community service. In January 1996 he was convicted of a serious assault on a police officer and sentenced to two months imprisonment. In May 1996 he was convicted of aggravated assault on a female and sentenced to two months imprisonment. In June 1997 he was convicted of assault occasioning bodily harm and sentenced to three months imprisonment. On that same occasion and inferentially as a result of the same assault he was convicted of breaching a Domestic Violence Order and sentenced to six months imprisonment with respect to that aspect of the matter. 

In May 1998 he was convicted of assault occasioning bodily harm and sentenced to six months imprisonment. I referred specifically to the fact that the assault occasioning bodily harm in June 1997 also involved a breach of Domestic Violence Order but it appears inferentially that most if not all of the assault occasioning bodily harm offences also constituted breaches of the Domestic Violence Orders to which I have already referred. 

On 12 April 2000 he was convicted of breach of Domestic Violence Order and placed on probation for a period of 12 months.  That means that that probation order was still operative at the time count 1 and count 2 were committed and that probation order expired on the midnight prior to the commission of count 3. Also of significance is the fact that on 2 August 2000 he had been placed under an intensive correction order for a period of three months and that had expired only about a month before the commission of count 1. 

Against that background it is not surprising that the learned sentencing Judge observed that the applicant had an atrocious criminal history in relation to females and described him as a serial offender breaching Domestic Violence Orders. 

Despite all of that it is submitted that the sentence of six years as the head sentence was manifestly excessive. It is conceded by counsel for the respondent that such a sentence would be at the very top of the range.

In my view it is relevant to bear in mind in this case that both the complainant and the applicant on the occasion each offence was committed had been drinking heavily and each was obviously highly intoxicated. 

Counsel in their submissions referred to a number of cases indicating the appropriate range for offences of this kind. In particular reference can be made to Bell 2000 QCA 485, an Attorney-General's appeal, C 2000 QCA 154, James 2000 QCA 477 and Morgan CA 209 at 1999. In many ways Bell is a very comparable matter to the present. It involved a series of assaults on a de facto spouse where there had been a history of assaults in the domestic environment. The sentence initially imposed was two years imprisonment with a recommendation for parole after nine months. This Court on the Attorney's appeal increased the sentence to three and a half years imprisonment with eligibility for parole after 18 months. 

Taking into account the sentences in the cases to which I have referred, and I do not find it necessary to refer in any greater detail to them, I am firmly of the view that a sentence of six years imprisonment is manifestly excessive. Whilst those cases do not indicate the maximum for offences of this type, in the main they reflect a sentence in the range of three to four years and in my view a sentence of four years imprisonment is the appropriate sentence for each of the three offences with which this Court is now concerned. 

I would grant leave to appeal against the sentences imposed on counts 1, 2 and 3. I would allow the appeal, set aside the sentence imposed on counts 1, 2 and 3 and substitute a sentence of four years imprisonment on each sentence to be served concurrently.  The declaration as to pre-sentence custody should stand.

THE PRESIDENT: I agree that the sentence of six years imprisonment was manifestly excessive and the sentence should be reduced to four years imprisonment. Comparable sentences do not support the sentence of six years imprisonment. A sentence of four years imprisonment nevertheless reflects the serious view the Courts and the community take to the commission of offences such as these. The applicant, as the learned trial Judge said, has demonstrated that he is a serial Domestic Violence offender and his attacks on three of his female partners have demonstrated that he is a danger to women.

The serious aspects of these particular offences have been highlighted in the reasons of Justice Williams. There may be many complex reasons including excessive consumption of alcohol to explain the applicant's serious offending behaviour but none of them excuse his serious and persistent offending. 

The complainant has been left with disfiguring facial scars. The Courts recognise that women in indigenous communities are of course entitled to the protection of the rule of law enjoyed by all Australian citizens.

The learned trial Judge, who it can be expected, is aware of the prevalence of these offences in communities such as Palm Island, was clearly cognisant of this principle when he adjourned the sentence to ensure the complainant had the opportunity to provide a victim impact statement, something which should have been routinely done in preparing the matter for sentence. It is important that victims of violence in indigenous communities are given the opportunity to provide victim impact statements like all other victims of crime. But for the reasons given by Justice Williams the sentence was manifestly excessive and I agree with the orders he proposes.

DAVIES JA: I agree with the orders proposed by Justice Williams, with his Honour's reasons and with the reasons just given by The President.