R v Beer[2002] QCA 397

SUPREME COURT OF QUEENSLAND 

[1]DAVIES JA: I agree with the reasons for judgment of Wilson J and with the orders she proposes.

[2]McPHERSON JA: I agree with the reasons of Wilson J for concluding that there is no proper basis for setting aside the verdicts and convictions in the appeals by these two appellants.  I also agree that their applications for leave to appeal against sentence should be dismissed.

[3]Wilson J: Nickolas Daniel Massey and John Joseph James Beer appeal against their conviction of assault occasioning bodily harm with a circumstance of aggravation and seek leave to appeal against the sentences imposed on them for that offence. In addition Massey seeks leave to appeal against the sentence imposed on him for doing grievous bodily harm on another occasion.

Massey & Beer’s appeal against conviction

[4]Massey and Beer were charged with unlawfully assaulting Luke Jade Wolf and doing him bodily harm on 2 October 2000. There were two circumstances of aggravation alleged: that they were in company with another person and that they were armed with an offensive weapon. They went to trial, and the jury found them both guilty of assault occasioning bodily harm in company, but not guilty of assault occasioning bodily harm in company whilst armed.

[5]On the hearing of the appeal, counsel for the appellants submitted that the verdicts were unsafe and unsatisfactory because of inconsistencies. To understand the basis of this argument, it is necessary to go into the facts of the offence.

[6]The complainant Wolf and the appellants were friends. Massey was aged 18 and Beer was aged 22. About a month before 2 October 2000, the relationship between Wolf and his girlfriend Sarah Milford broke up. Wolf started drinking heavily. Meanwhile Massey started a relationship with Sarah Milford. The friendship between Massey and Wolf ended.

[7]This was Wolf’s version of what happened. On the night in question, he left his employment at Indooroopilly, called into the Indooroopilly Hotel to buy some alcohol to take home to Inala with him, and then caught a train to Oxley. He arrived at the Oxley Station at about 5.45pm, and then caught a bus to the Inala Plaza Shopping Centre. Sitting in the back seat of the bus, he saw a car, which he thought looked familiar, following the bus, although he did not know whose it was. If the bus stopped, the car stopped - on one occasion around the corner from where the bus stopped, with its lights turned off.

[8]According to Wolf, he got off the bus at the Inala Plaza Shopping Centre. He walked through the shopping centre and on emerging from the other side saw the same car go past. He walked up and down a number of streets, but continued to see the car at various stages. He walked through a park and across a bridge. He saw the appellant Massey get out of the car from the passenger side and follow him over the bridge into the park area. Massey started swearing at him, challenging him to fight. Wolf shrugged and continued walking. He heard Massey call out to Beer across the other side of the road, “Bring the bat”. Massey followed Wolf. Beer drove the car around a street towards the park and stopped in front of Wolf.

[9]Wolf said that Beer called out “You are fucked; come over”, and approached him and struck him. Beer hit him on the chin with his fist, and inflicted at least three blows with the bat: on the left side of his forehead; in the area of his right eyebrow; and to his leg. Massey threw punches to the back of Wolf’s head and to his back. Wolf sustained wounds consistent with such blows. The assault ended when Beer and Massey just stopped, jumped in their car and drove off. Wolf recalled a third person standing in the background watching: he thought it may have been “Argie” (Aji Carr).

[10]The trial judge properly directed the jury that they might accept part of a witness’s evidence and reject other parts, and as to the alternative verdicts that were open (including those which the jury returned).

[11]Counsel for the appellants submitted that the verdicts were unreasonable in light of the acquittals with respect to the circumstance of aggravation of being armed. The verdicts defied reason and logic in that it was an essential part of the prosecution case that Beer wielded the bat and that he was assisted by Massey. It was conceded that if Wolf’s evidence were accepted by the jury, the prosecution case was very strong. Clearly, the jury must have accepted his evidence that he was followed and assaulted.

[12]This Court is slow to interfere with decisions of juries on disputed factual questions, given the pivotal role they play in resolving such disputes and the great respect accorded to their decisions. As Gaudron, Gummow and Kirby JJ observed in  MacKenzie v R[1]

“Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.[2] If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.[3]  In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.[4] Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries”.[5]

Their Honours approved the following passage in the judgment of King CJ (with whom Olsson and O'Loughlin JJ agreed) in R v Kirkman:[6]

“… juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”

[13]In the present case, it is possible that the jury thought that Wolf’s evidence was exaggerated, and that while they were prepared to accept the rest of his evidence, they were not prepared to accept that Beer used the bat, or that any implement Beer used was of the character Wolf described, or that it met the description of an offensive weapon. It is possible that they exercised their prerogative of returning a merciful verdict in not convicting two young men of the added circumstance of aggravation.

[14]In my view this is not a case of such glaring and irrational inconsistency that this Court should intervene and set aside a conviction to prevent a possible injustice. I would dismiss the appeal against the convictions.

Sentences imposed on Massey & Beer

[15]The maximum penalty which might have been imposed on Massey and Beer was 10 years imprisonment. The trial judge regarded each as equally responsible for a cowardly, vicious and unprovoked assault, and sentenced them both to 15 months imprisonment to be suspended after 6 months, with an operational period of two years.

[16]Counsel for Massey and Beer submitted that the sentences were manifestly excessive and that non-custodial penalties ought to have been imposed.

[17]Both had good work histories. Both had minor criminal histories, but not of offences of violence. Beer had been convicted of weapons offences in 1995 and on two occasions in 2001 he was dealt with for minor drug offences committed after the assault on Wolf.  At the time of sentence Massey had been dealt with for minor drug offences, one count of possession of a knife in a public place, two counts of breach of bail and a graffiti offence. Neither of them had previously served a term of imprisonment. Subsequently Massey was convicted of another assault, committed before the assault on Wolf; the sentence then imposed on him is the subject of his second application for leave to appeal against sentence.

[18]The appellants’ youth and their not previously having been convicted of offences of violence were factors calling for restraint in fixing the appropriate penalties for this assault. However, there were other factors which justified the imposition of the sentences imposed, even given their youth and antecedents. The appellants were without remorse. Their attack on Wolf was premeditated, unprovoked and vicious. He sustained a savage beating, and took 4 or 5 days to recover. Non-custodial sentences would not have been condign punishment, and would not have met the requirements of personal and general deterrence.

[19]In R v Armstrong[7] the applicant was convicted of assault occasioning bodily harm while in company, and sentenced effectively to 2 years imprisonment with a recommendation for parole after 9 months. At the time, the maximum penalty for this offence was 7 years: it was increased to 10 years in 1997.  Armstrong  was a 21 year old woman with a significant criminal history. She attacked a tourist in the Queen Street Mall punching her viciously around the face. The complainant’s companion was attacked by others. She applied for leave to appeal against the sentence. On the hearing of the application, argument centred on parity with the sentence imposed on a co-offender, but the Court considered that the circumstances of the two offenders were quite different. Importantly for present purposes, it did not regard the sentence imposed on Armstrong as manifestly excessive.

[20]The appellants’ counsel relied on R v Dempsey & Perks; ex parte Attorney-General.[8] That was an Attorney’s appeal against sentence. Each of the respondents pleaded guilty to assault occasioning bodily harm with two aggravating circumstances - that each was armed with an offensive weapon and that he was in company with the other. The two respondents and three others, all aged 17, pursued a plan developed at a party to go to a park in Cairns to seek out homeless people. They attacked one of the park dwellers, kicking him and Dempsey hitting him a number of times with a baseball bat. Later they went to a store and boasted what they had done. Fortunately the complainant suffered no long term effects. Neither of the respondents had any criminal history. The prosecution submitted that the attack was racially motivated, but the sentencing judge declined to find that it was. He imposed a sentence of 9 months to be served by way of an intensive correctional order. It is significant that the offenders there were younger than Massey (who was 18) and Beer (who was 22), and they had no criminal histories at all.  This Court held that, on the material before him, the sentencing judge was correct in declining to find that the attack was racially motivated. It demonstrated the caution with which it properly approaches Attorney’s appeals against sentence. The appeal was dismissed.

Beer

[21]In my opinion there is no warrant for interfering with the sentence imposed on Beer, and I would dismiss his application for leave to appeal against sentence.

Massey

[22]After his conviction for the assault on Wolf, Massey pleaded guilty to grievous bodily harm committed on 23 January 2000 (when he was aged 18). He was sentenced to two years imprisonment to be served concurrently with the other sentence, and was given a recommendation for eligibility for parole on 30 April 2003 (12 months after sentence).

[23]The complainant Clint Handley, a 17 year old youth, was drinking with friends at Surfers Paradise. At about 3.00 am his girlfriend approached a group of boys including Massey and asked for a cigarette. The two groups exchanged abuse. When Handley realised that insults were directed to his girlfriend, he moved towards Massey’s group and an argument ensued in which punches were traded. Handley knocked Massey to the ground. Massey and his group moved away, pursued by Handley’s group. Massey’s group moved down the street; they entered a building and went to the top of its stairwell, followed by Handley and two male members of his group. There was a fracas at the top of the stairwell, during which Massey stabbed Handley three times in the left chest area. Handley required ten days hospitalisation, including two days in intensive care. Although he made a comparatively quick physical recovery, he had ongoing psychological and emotional problems. Massey was sentenced on the basis that he had acted in self defence, but in doing so had used excessive force.

[24]There is nothing to suggest that Massey armed himself with the knife as a result of the altercation with the complainant’s group. That he was carrying the knife and that he used it to inflict three stab wounds are particularly serious features of this offence. The ongoing effects on the victim must be taken into account.

[25]Massey sought leave to appeal against the sentence on the ground that it was manifestly excessive. His counsel submitted that he ought to have been sentenced to 2 years imprisonment, suspended after 6 months.

[26]In R v Guppy,[9] the applicant pleaded guilty to a charge of grievous bodily harm. He was aged 22 at the time of the offence, and the complainant was 27. He had no previous convictions for violence, but had been convicted five years previously for unlawful use of a motor vehicle as a passenger. That was also a case of excessive force in self-defence. The complainant had been drinking all day, and was threatening the applicant, throwing things at him and telling him he was going to kill him. As the complainant came at the applicant, the applicant hit him with a frying pan and then stabbed him six times with a pocket knife. He was sentenced to four years imprisonment with a recommendation for parole after one year. His application for leave to appeal against sentence was dismissed.

[27]In R v Bain[10] the applicant pleaded guilty to an ex officio indictment charging him with grievous bodily harm and numerous serious property offences and offences of dishonesty. He had a criminal history of property offences and offences of dishonesty. He was aged 18, and had drug and alcohol problems. He and his brother were arguing; a fight developed in which the brother gained the upper hand.   He kicked the applicant who was on the ground. The applicant took a butter knife, or perhaps scissors, from his back pocket and stabbed his brother in the left lung. This Court declined to interfere with the sentence imposed - three years imprisonment, with a recommendation for parole after ten months.

[28]The totality of Massey’s criminal conduct must be looked at in considering both of his applications for leave to appeal against sentence.  As I observed in relation to the assault of Wolf, his youth and antecedents are relevant, but the seriousness of the offending behaviour nevertheless calls for a custodial term. In my view neither sentence imposed on him was manifestly excessive. I would dismiss his two applications for leave to appeal against sentence. 

Orders:

[29]I would make the following orders:

In CA No 103 of 2002 and CA No 108 of 2002 I would dismiss the appeals against conviction and dismiss the applications for leave to appeal against sentence.

In CA No 151 of 2002 I would dismiss the application for leave to appeal against sentence.