SUPREME COURT OF QUEENSLAND

1. THE COURT:  On 20 June 2001 the appellant was convicted after trial of one count of causing grievous bodily harm.  He was remanded in custody and sentenced on 6 September 2001 to a term of imprisonment of 18 months.  A declaration was made in respect of the 78 days spent in pre-sentence custody.  He appeals against conviction and sentence. 

Facts

2. The complainant and his wife operated a store at Beachmere. The complainant was annoyed about conduct complained of by his wife that some youths had made rude gestures at her. After enquiries by the complainant about who was involved, one Richard Benson went to the store to speak to the complainant about the matter. They went to the rear area of the store where there was a metal gate. The complainant’s wife was also present.

3. While the complainant was talking to Benson, the appellant, Ryan Higgins and Jason Eames, turned up on the other side of the metal gate. Higgins took exception to a comment which he heard the complainant make to Benson about Benson’s friends. The complainant went to walk towards Higgins. Higgins pushed the metal gate, which was not locked, and the gate moved inwards. The complainant pushed the gate back and it bumped into Higgins’ bicycle. A scuffle ensued between the complainant and Higgins. The complainant conceded that he did not know whether he grabbed Higgins, before Higgins grabbed him. Each had his hands on the shirt of the other. They continued to scuffle and the complainant was punched by Higgins at least once in the face. The appellant then jumped on the complainant’s back. The complainant dislodged him and said something to the effect “You can all have a go one at a time”. The scuffle continued and the complainant ended up lying on the ground with Higgins on top of him. The complainant was attempting to throw punches at Higgins which were blocked. While in that position on the ground the complainant was kicked in the ribs by the appellant.

4. Higgins and the complainant then got to their feet and continued scuffling. Higgins stated that the complainant never landed a punch on him. The appellant then ran in from the complainant’s right and punched the complainant once to his right eye with his right fist. The punch ended the fight. Benson and Eames had already run off. The appellant and Higgins then ran off.

5. The complainant described himself in evidence as 6 feet 2 inches tall, and 103kg in weight. Higgins described himself as 6 feet tall and between 60kg and 65kg in weight. Higgins stated that about a year beforehand, he had done a little boxing for about 6 months about which the appellant knew. The appellant was present during the entire fight between the complainant and Higgins.

6. The above summary of facts is taken primarily from the evidence of the complainant. There were some differences in the evidence of Higgins, but the basic details of his evidence coincided with that of the complainant.

7. The complainant described the effects of the blow to his right eye in terms that his right eye seemed to be depressed and sit lower after the injury, and his right eyeball had sunk back into the eye socket. That was described by Dr Sullivan, the treating specialist, as the right eye being displaced backwards some two millimetres behind the left eye and that was unlikely to change in the future. The complainant walked in front of the jury box, so that each juror could look at his right eye. The complainant also described suffering from double vision at the edge of his vision range, if he were to look upward. The complainant stated that he did not notice that problem, as he did not use that range much. Dr Sullivan confirmed that the complainant suffered from double vision in extreme up-gaze which was well outside the useful area and range of normal vision and that was also unlikely to change in the future.

Grounds of appeal

8. The grounds of appeal against conviction were directed to two main issues. One issue was whether the learned trial judge should have directed the jury in respect of aiding in self defence pursuant to s 273 of the Criminal Code (“the Code”).  The second issue was whether the injuries suffered by the complainant could constitute grievous bodily harm as defined in s 1 of the Code, and whether there was a misdirection to the jury in relation to the meaning of that term.

9. One ground of appeal that the verdict of the jury should be set aside as unsafe and unsatisfactory on the basis that a reasonable jury could not have been satisfied beyond reasonable doubt that the appellant had struck the blow which caused the injuries suffered by the complainant was not pursued, as it was clearly not sustainable. It was open to the jury to accept the complainant’s evidence that it was the appellant who struck the blow which caused the damage to the complainant’s right eye.

Aiding in self defence

10. The question of whether the jury should be directed in respect of s 273 of the Code was raised during the trial by counsel who was then appearing for the appellant.  It was submitted at trial that the defence pursuant to s 273 was available on the basis that there was evidence which raised a reasonable doubt as to whether the Crown could exclude that the appellant was coming to the aid of Higgins (who was still fighting with the complainant at that time) by punching the complainant in the right eye.

11. The learned trial judge ruled that, assuming that there was some evidence that Higgins had been unlawfully assaulted and had not provoked the assault (so that s 271(1) of the Code would have been enlivened in Higgins’ case), there was no evidence as to what the appellant believed at the time of the punch, no evidence that he was acting in good faith and it was doubtful that there was any evidence that what he did was done to defend Higgins.

12. On this appeal it was accepted by the Crown that, in appropriate cases, the relevant state of mind or belief of an accused can be inferred from all the surrounding circumstances: R v Pangilinan [2001] 1 Qd R 56, 61-62; but that the evidence must rationally support the inference sought to be drawn:  R v Bojovic [2000] 2 Qd R 183, 186.

13. By the stage of the fight when the appellant threw his punch, the fight between the complainant and Higgins had ensued for some little time, and Higgins was managing to hold his own in the fight. Higgins and not the complainant had managed to connect a punch. The previous contribution of the appellant to the fight of kicking the complainant in the ribs when he was subservient to Higgins on the ground was not consistent with an intention to assist Higgins to defend himself against the complainant. The circumstances existing at the time that the punch was thrown by the appellant would therefore not enable a reasonable jury, properly instructed, to find that the Crown could not exclude beyond reasonable doubt that the appellant was acting in good faith in defence of Higgins when he threw that punch.

14. There was therefore no error of law in the learned trial judge not leaving the question of aiding in self defence pursuant to s 273 of the Code.  This ground of appeal fails.

Whether injuries amounted to grievous bodily harm

15. The definition of “grievous bodily harm” in s 1 of the Code is:

“grievous bodily harm” means-

1. the loss of a distinct part or an organ of the body; or

2. serious disfigurement; or
3. any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available.”

16. The learned trial judge put to the jury that the Crown case was that displacement of the right eye was a serious disfigurement or, alternatively, the double vision was permanent injury to health. Favourably to the appellant, the learned trial judge directed the jury to be unanimous as to which of the alternatives or both (if both was the jury’s decision) the jury relied on to be satisfied that the punch caused grievous bodily harm. The jury verdict means that, at the least, the jury was satisfied that either the displacement of the right eye or the double vision was grievous bodily harm.

17. As was properly conceded by the appellant’s counsel at the trial, the question of whether of not the displacement of the eye was a serious disfigurement was a question for the jury.

18. In view of the limited range of vision of the complainant which was affected by double vision as a result of the punch, it was submitted by Mr Hamlyn-Harris of counsel on behalf of the appellant on the hearing of the appeal that there could not be a permanent injury to health from that double vision. Reliance was placed on dicta in R v Tranby [1992] 1 Qd R 432, 436, 442-443 to submit that there must be a permanent injury of sufficient seriousness to satisfy the description “permanent injury to health”.

19. There was evidence before the jury that the double vision was a permanent condition. It was for the jury to decide in the light of the evidence before them, whether they could conclude that the double vision which affected the complainant when he used the extreme up-gaze vision amounted to permanent injury to health. The test is whether the bodily injury has caused or was likely to cause permanent injury to health.

20. There was no deficiency in the summing-up of the learned trial judge on the meaning of grievous bodily harm or in allowing the issue of whether either injury sustained by the complainant was grievous bodily harm to be determined by the jury.

21. The grounds of appeal on this issue of whether the injuries were grievous bodily harm must also fail.

Sentence

22. The offence was committed on the appellant’s 19^th birthday.  He had no criminal history which pre-dated the offence.  After the offence he was convicted of using obscene language near a public place and obstructing a police officer for which he was fined. 

23. When passing sentence, the learned trial judge described the appellant as having been “involved in some loutish behaviour in what was a cowardly and vicious attack on an older man”. The complainant was aged about 48 years. The learned trial judge also referred to the appellant’s lack of remorse and the record of interview of the appellant which the learned trial judge described as containing a lot of self-serving statements.

24. The delay in the sentence was caused by the request made on behalf of the appellant to obtain a pre-sentence psychiatric report. A report was obtained from psychologist Mr Luke Hatzipetrou dated 5 September 2001 who interviewed the appellant on 2 September 2001, reviewed the file notes and reports from Caboolture Hospital in respect of the appellant and obtained information from the appellant’s mother and grandmother about the appellant’s social history. Although the validity of the learned trial judge’s observation that “to a large extent the report is probably based on self-serving statements by the accused and members of his family” cannot be controverted, the report does provide a comprehensive summary and analysis of personal history, background and problems of the appellant which are relevant to the sentencing process.

25. The appellant had troubled schooling. He had learning difficulties and was diagnosed as suffering from Attention Deficit Disorder and Attention Deficit Hyper-activity Disorder for which he was medicated. He left school at the beginning of Grade 9. He worked with a family business operating amusement rides for a substantial period on a part-time basis. Whilst working for a roofing company when he was 16, he dislocated his shoulder and has had ongoing difficulties with that injury. He went on Youth Allowance in November 1998 and found it difficult to find fulltime work, because of his lack of education and learning difficulties. Prior to the trial, he was being assisted through Centrelink in preparing for obtaining employment.

26. At the time of the trial the appellant was residing with his parents who both suffer from debilitating medical conditions and his de facto partner who was 34 weeks pregnant with their child and who subsequently gave birth to a daughter while the appellant was in custody.

27. Mr Hatzipetrou considered that the appellant is functioning within the borderline to low average range of intelligence and that the rehabilitation needs of the appellant were complex and should be viewed as long term. He made a strong recommendation that the appellant attend alcohol and drug counselling.

28. Although the learned trial judge adverted to the appellant’s lack of prior criminal history and youth, that has not been reflected in the imposition of a custodial sentence of 18 months.

29. It is submitted on behalf of the appellant that in all the circumstances of this case, including the fact that no weapon was involved and the offence constituted a single punch, a community based order would have been within range or, alternatively, imprisonment by way of an intensive correctional order or a wholly suspended term of imprisonment would have been within range.

30. What is clear is that when all the relevant factors are taken into account, a sentence of 18 months’ imprisonment was outside the appropriate range and was manifestly excessive.

31. Having regard to the appellant’s age and social difficulties, it was obvious that he would benefit from a form of punishment that incorporated some form of supervision which would assist in his rehabilitation.

32. The fact is that the appellant has been in custody since 20 June 2001 which means that he has served 5 months 10 days in prison. A short term of imprisonment coupled with a probation order would have been an appropriate sentence, taking into account the seriousness of the attack by the appellant on the complainant and the need for deterrence, but giving weight to the ameliorating factors.

33. We would therefore substitute a sentence of 5 months 10 days to be followed by a period of probation of 18 months. The declaration made in respect of pre-sentence custody must remain.

Orders

34. We therefore make the following orders:

1. Appeal against conviction is dismissed.
2. Application for leave to appeal against the sentence is granted and the appeal is allowed.
3. The sentence of 18 months’ imprisonment is set aside and, in lieu, the appellant is sentenced to imprisonment for a period of 5 months 10 days and  it is ordered that he be released under the supervision of an authorised Corrective Services Commission officer for a period of 18 months with a special condition that he undertake such drug and alcohol rehabilitation courses as may be directed by the authorised Commission officer.  The appellant must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 and report within 2 business days of his release from prison to an authorised Commission officer.

35. It is the intention of making these orders that the appellant be released immediately from prison, so that the probation order can take effect.