R v Lewis; ex parte Attorney-General
[2003] QCA 133
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- Notable Unreported Decision
- Appeal Determined (QCA)
- R v Lewis; ex parte Attorney-General[2003] QCA 133
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R v Lewis; ex parte Attorney-General[2003] QCA 133
R v Lewis; ex parte Attorney-General[2003] QCA 133
SUPREME COURT OF QUEENSLAND
CITATION: | R v Lewis; ex parte A-G (Qld) [2003] QCA 133 |
PARTIES: | R v LEWIS, Tony Kieren (appellant/respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) |
FILE NO/S: | CA No 339 of 2002 CA No 319 of 2002 DC No 2125 of 2002 |
DIVISION: | Court of Appeal |
PROCEEDING: | Appeal against Conviction Appeal against Sentence by A-G (Qld) |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 25 March 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 March 2003 |
JUDGES: | de Jersey CJ, Williams JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1. Allow the Attorney-General’s appeal against sentence2. Set aside the sentence imposed in the District Court on 17 September 20023. Order that the respondent be imprisoned for seven years4. Declare the respondent to have been convicted of a serious violent offence |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – OTHER IRREGULARITIES – whether appellant permitted to withdraw plea of guilty – where appellant did not qualify plea when arraigned – where appellant did not object or demur when counsel recounted instructions at sentencing CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent had extensive criminal history – where respondent persisted in wielding potentially lethal weapon in face of calls to desist – where respondent inflicted severe injuries on complainant – where respondent attempted to evade police – where attack occurred in a public place Lowndes v R (1999) 195 CLR 665, approved R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, approved R v Gadaloff [1999] QCA 286; CA No 24 of 1999, 24 September 1999, approved R v McKenzie [2000] QCA 324; CA No 353 of 1999, 10 August 2000; (2000) 113 A Crim R 534, approved R v Melano; ex parte A-G (Qld) [1995] 2 Qd R 186, approved |
COUNSEL: | V Supranowicz for the appellant in CA No 339 of 2002 and for the respondent in CA No 319 of 2002 B G Campbell for the respondent in CA No 339 of 2002 and for the appellant in CA No 319 of 2002 |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the respondent in CA No 339 of 2002 and for the appellant in CA No 319 of 2002 |
- de JERSEY CJ: The appellant pleaded guilty in the District Court on 17 September 2002 to the offence of doing grievous bodily harm. He was sentenced to three-and-a-half years imprisonment, with a recommendation for consideration of post prison community based release after 15 months. The Attorney-General appeals against sentence. The appellant appealed against conviction. The court dismissed that appeal, with reasons to be published subsequently. My reasons follow.
- It is convenient to set out first the facts on which he was sentenced. The complainant, a previously healthy 19 year old man, was in a public park at Strathpine with friends late during an evening in March 2001. His attention was drawn to another area within the park, where another group of his friends were arguing with a group of six or seven men including the respondent. The arguing continued for a considerable time, associated with some small scuffles or fights. The complainant chose to stay away from that group.
- Some smart remark, possibly racist, led to a fight, and continuing argument between the other groups. The respondent then started swinging about a metre long weapon resembling a Samurai sword. His behaviour was generally threatening. At one stage the sword came close to a group of girls. On the uncontroverted material before the learned judge, the respondent was seen to lick the sword, drawing blood, then holding the sword high saying: “This is my blood” (although the judge made no express finding about that). The respondent’s behaviour induced considerable alarm, including screams that he should put the sword down.
- The complainant approached the group thinking the respondent was swinging a stick about. He then identified it as a sword. The complainant thought the respondent had struck one of the girls with the sword. The complainant told the respondent to put the sword down, and said that if he wanted to fight, he [the complainant] would fight him, but he was to put the sword down first. The respondent then swung the sword at the complainant a couple of times.
- The complainant determined that he should try to disarm the respondent. He continued to tell the respondent to put the sword down because he was going to kill someone. The respondent however continued to move towards the complainant, thrusting the sword towards him. When the respondent took a large swing at him, the complainant rushed in close to the respondent, punching him five or six times. The respondent then struck the complainant as the learned judge found, at least four times with the sword.
- The complainant suffered a number of severe injuries. They included a deep laceration to the left wrist which severed an artery, two nerves and muscle tissue. The complainant is left handed, and now suffers restricted movement of that hand. He was left with a large gaping laceration in the left thigh with severed muscle and a severed sciatic nerve. The complainant has lost feeling below the knee. His leg has withered and there is the possibility he may require an amputation. He must now wear a plastic splint to prevent his foot dropping forward. He suffered a laceration to the upper left thigh which cut down into the muscle, and a seven to ten centimetre laceration to the left knee, nearly down to the bone, which permitted the entry of air into the knee joint. If left untreated the injuries would have led to severe dysfunction. The residual effect upon the complainant is described in more detail in a victim impact statement from the complainant and his mother.
- After the incident the respondent fled the scene and endeavoured to evade the police. He later told the police, when apprehended, that he had been involved in a fight and had been handed a Samurai sword and struck the complainant a number of times during the fight. He refused to be interviewed formally. After his arrest and release, he requested that he be interviewed and admitted his responsibility, though providing a self-serving version raising self-defence.
- The appellant now seeks to withdraw his plea of guilty. The basis of the application is the suggested incompetence of the barrister and solicitor who represented him. He claims that he wished to rely on self-defence. He contends that his legal representatives negligently failed to locate and proof witnesses who would have supported his claim. We were provided on the hearing of the appeal with affidavits by three persons in addition to the appellant who swear to have been at the scene and who give their accounts of what occurred. As to the role of the appellant’s legal representatives, the appellant swears to the effect that his claims of self-defence were rejected as unrealistic: if that occurred (which is denied) it would be explained, obviously enough, by the obvious disproportion between the use of a Samurai sword and the delivery of body blows with a fist. (It may be observed that large parts of the affidavit material upon which the appellant relied were cast in inadmissible form).
- The appellant relies also on a report dated 12 February 2003 by the psychiatrist Dr Robert Moyle. Significantly to the resolution of this issue, Dr Moyle offers the view that the appellant:
“… had the capacity to follow and understand the court procedures and what the plea of guilty would mean in the circumstances, and whether he was fit to stand trial … [He] had previous experience of courts, is of normal intelligence, has watched television and learned of various experiences on television and has had a normal education both on and off the streets. He doesn’t have a mental disorder or an intellectual deficit that would lead him to not be capable of understanding the court procedures in the same way as the common man understands such procedures. He is likely to meet the criteria for fitness to plead…”.
- The appellant claims to have believed that in pleading guilty, he would nevertheless be permitted to raise the claim that he was acting in self-defence. Yet he did not qualify the plea as he expressed it when arraigned. Further, he did not object or demur when his counsel, in his presence, made the following clear statement to the learned sentencing judge:
“Now, I am clearly instructed by him, your Honour, that he does not seek to rely on those matters in his interview which would be seen as placing him in a situation of acting in self-defence or otherwise. He absolutely accepts that the account given by the complainant and witnesses and accepts that his level of intoxication on that evening placed him in a position where he agrees that he acted in a completely irrational manner and in a manner that was in no way justified and he does not seek to place any justification before the court.
There simply isn’t any. The only explanation that he can proffer for his actions is his level of intoxication so that the only things to which, perhaps, I take some issue in relation to the facts is that there is no evidence that he, in fact, directly requested a weapon to be brought and he, in fact says that he did not make that request and that he, himself, did not make any racist remarks although he accepts that others in his group did.”
The appellant now seeks to challenge those assertions, but the opportunity for doing so, which arose at the hearing, has passed.
- Counsel for the appellant submitted the appellant did not appreciate he was to be sentenced. That is quite inconsistent with the discussion with his lawyers to which the appellant himself deposed, preceding the sentencing, concerning likely penalty. (See the passage at the top of p 12 of the appellant’s affidavit filed 10 March 2003.)
- The appellant’s counsel at the sentencing has sworn an affidavit which confirms that the appellant was comprehensively and appropriately advised prior to the sentencing, and that the plea of guilty was entered voluntarily. His solicitor has also sworn a comprehensive affidavit which shows the matter was appropriately dealt with.
- In view of the appellant’s failure to demur to what his counsel said at the sentencing, the regular way in which the matter proceeded before the learned judge, and the views expressed above drawn from the report of Dr Moyle, I am not satisfied that there is any prospect of miscarriage of justice such that this court should now allow the withdrawal of the plea of guilty.
- In order to set aside the conviction, the appellant, in seeking leave to withdraw the plea of guilty, must demonstrate that the acceptance of the plea has produced a miscarriage of justice (R v McKenzie (2000) 113 A Crim R 534, [31], [32]). As confirmed by R v Gadaloff CA 24/1999, the essential question is whether the entering of the plea should be regarded in all the circumstances as attended by such unfairness as to warrant a new trial. The appellant has not satisfied those requirements.
- In support of the application for leave to withdraw the plea of guilty, which was the foundation of the appeal against conviction, Counsel for the appellant relied on a number of affidavits. Only those from the appellant, and arguably his mother and girlfriend, could be relevant to that aspect; as with, from the respondent’s side, the affidavits of the appellant’s then solicitor and barrister. Much of the appellant’s affidavit material was inadmissible, although there is no need to specify the extent of that now.
- Those are the reasons why I considered the appeal against conviction should be dismissed.
- As to the Attorney-General’s appeal against sentence, it remains to mention two further matters. First, the respondent had an extensive prior criminal history, mainly for offences of dishonesty, but including also one incident of gratuitous violence which led to a conviction for assault occasioning bodily harm. The respondent committed that offence in August 1999. He punched the complainant, an older man, about the face and body while he was on the ground, using a spiked ring.
- Secondly, the Crown prosecutor submitted that the learned judge should consider a range of two to four years imprisonment, and sentence towards the top end of that range. Plainly his Honour accepted that submission. Equally plainly, however, the submission was misconceived.
- It is useful to refer immediately to Bryan, CA 410/2002. Bryan also was involved in a vicious attack upon a stranger using a weapon. He pleaded guilty to doing grievous bodily harm. Bryan was the initial aggressor, and became involved in a fight with the complainant. He produced a knife at a time when he was losing the fight, and inflicted life threatening injuries. The court there expressed the view that a sentence of six to seven years imprisonment was the minimum which could be considered appropriate as a head sentence, with a declaration that the offence was a serious violent offence justified. The situation here was more serious, with many more people in the vicinity as the respondent waved the sword about, his persistence in the face of calls for him to desist, and his past criminal history – much more serious than Bryan’s and including a conviction for a violent offence. In Chambers, Harrison and Fisher, CA 316, 317 and 318/2002 the court emphasised that the possession and use of weapons like this in a public place need to be strongly deterred.
- The circumstance that the level of penalty raised by the Crown Prosecutor with the learned judge fell substantially below the penalty which should have been imposed, warrants this court’s now not considering itself controlled by that aspect of the Crown approach.
- I accept the Crown contention that a sentence of the order of seven years imprisonment was justified here. Further, this was a case where a declaration should additionally have been made that the respondent had been convicted of a serious violent offence. In selecting the term of seven years, the penalty has in my view been struck at a sufficiently moderate level to take account of the plea of guilty. I consider that the aggregation of features I am about to recite would in this case, absent a plea of guilty, have warranted up to 10 years imprisonment, possibly more. Selecting seven years appropriately reflects the plea of guilty, while allowing for the concurrent declaration.
- A number of circumstances combine to render this instance of offending particularly serious: the respondent’s use of a potentially lethal weapon; the threatening and intimidation of a group of young men and women in a grossly dangerous way; ignoring calls to put the weapon down; striking the complainant four times as the complainant sought to respond by trying to disarm the respondent; inflicting severe injuries upon the complainant which have left the complainant permanently disabled and substantially diminished his capacity to enjoy life; fleeing the scene and seeking to evade the police, then providing a false self-serving version of events; and the circumstance that the events occurred in a public place to which members of the community should be able safely to have resort.
- I would make the following orders:
- Allow the Attorney-General’s appeal against sentence;
- Set aside the sentence imposed in the District Court on 17 September 2002;
- Order that the respondent be imprisoned for seven years;
- Declare the respondent to have been convicted of a serious violent offence.
- WILLIAMS JA: I will not repeat matters of fact contained in the reasons for judgment of the Chief Justice which I have had the advantage of reading.
- The appellant pleaded guilty and was sentenced in the District Court on 17 September 2002. The appeal by the Attorney-General against sentence is dated 9 October 2002 and was lodged with the court on 10 October 2002. It is not clear when it was served on the appellant. The appellant’s Notice of Appeal against conviction and sentence (the appeal against sentence was subsequently abandoned) was lodged with the court on 17 October 2002. It is actually dated 17 September 2002 and signed by his barrister, V Supranowicz. The date on that Notice would appear to be incorrect because in his affidavit Mr Supranowicz says that his engagement commenced on 15 October 2002. The matter is of some importance because on its face the Notice of Appeal against conviction appears to raise issues about the plea of guilty on the very day it was entered. Undoubtedly that date 17 September 2002 is an error, and in fact the Notice was not signed until on or shortly after 15 October 2002. That means that it was approximately one month after the sentence that the issues as to the plea were raised for the first time, and probably after receipt of notice of the Attorney’s appeal.
- I agree with the Chief Justice that there is nothing in the report of Dr Moyle, or the affidavit material of the appellant, his mother and his partner Laura Richards, which, particularly in light of the affidavits from Green and Gilbert (his legal representatives at the time of sentence) establishes any basis for this court setting aside the plea of guilty. The passage from the report of Dr Moyle, quoted in the reasons of the Chief Justice, clearly establishes that there was nothing about the appellant’s mental capacity which made the plea suspect. Further, in that report (put before the court by the appellant and relied on by him in support of the application), it is said that the appellant was admitted to the Mater Hospital on 24 June 2002 after an overdose. According to the report he told the medical staff on that occasion he was awaiting sentence and was expecting a long sentence; that was said to be depressing him. In the light of that it is almost incomprehensible that he was not aware that he was going to be sentenced on 17 September 2002.
- The material does not establish any basis for the appellant’s contention that he believed that he was pleading guilty but raising self-defence. It appears from the affidavit of Green that he advised the appellant that no claim of self-defence should be placed before the court because it would significantly detract from the remorse impliedly shown by a plea of guilty. It appears that Green concluded that given the circumstances in which the offence was committed and the extent of injuries to the complainant any defence of self-defence had no chance of success. That is clearly correct. Even on the additional affidavit material from alleged eyewitnesses which the appellant relied on before this court (and even having regard to the extensive hearsay evidence included therein) the violence used by the appellant was not commensurate with any threat to his person.
- I agree with the Chief Justice in concluding that the appellant has not established any ground for setting aside the plea of guilty.
- On the Attorney’s appeal the most significant factors in my view are the sustained and savage nature of the assault, the fact that the appellant persisted in his conduct after repeated calls from his friends to lay down the weapon, and the fact that he has shown little or no remorse. Any remorse which might be inferred from the plea of guilty has been largely negatived by the issues raised in his attempt to have his plea of guilty set aside.
- This is another case of extreme violence in a public place. The learned sentencing judge did not have the benefit of some of the more recent cases in this court which have been concerned with the appropriate penalty to be applied in such situations.
- Though the appellant is a young man he does have a previous conviction for assault occasioning bodily harm; that appears to have been another incident of gratuitous violence.
- Ultimately I have come to the conclusion that the sentence imposed was manifestly inadequate and I agree with the sentence proposed by the Chief Justice in his reasons.
- I agree with the orders proposed by the Chief Justice.
- ATKINSON J: I have had the advantage of reading the reasons for judgment of the Chief Justice and Williams JA. I agree for the reasons that they have given that the appeal against conviction should be dismissed and the Attorney’s appeal against sentence allowed.
- I should, however, like to reiterate my acceptance of the principles set out by this court in R v Melano; ex parte Attorney-General [1995] 2 Qd R 186 and by the High Court in Dinsdale v The Queen (2000) 202 CLR 321, Malvaso v The Queen (1989) 168 CLR 227 at 234 and Lowndes v The Queen (1999) 195 CLR 665 at 671-672. A court of appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion differently to the manner in which it was exercised by the sentencing judge. As the High Court held in a unanimous judgment in Lowndes v The Queen[1]:
“The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice”.
Appellate courts must be astute not to take upon themselves the exercise of the wide sentencing discretion properly reposed in the sentencing judge unless it be necessary.
- This is a case where the sentence of imprisonment imposed was outside the sound exercise of the sentencing discretion as to the sentence which should have been imposed for an offence of this type considering all of the relevant circumstances of the offender, including his criminal history and his youth, his plea of guilty, the circumstances in which the offence was committed, the weapon used, the nature of the offending behaviour and the physical and psychological effect on the victim and others. It is therefore appropriate for this court to exercise the sentencing discretion afresh and to impose the sentence proposed by the Chief Justice.
Footnotes
[1] (supra) at 672.