R v Harris[2003] QCA 464

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant was convicted on the 18th June 2003 at the District Court at Brisbane on his own plea of two counts of doing grievous bodily harm and one count of assault occasioning bodily harm whilst armed with an offensive instrument.  The prosecution accepted the pleas of guilty to the counts of unlawfully doing grievous bodily harm in full satisfaction of the indictment which alternatively charged on each count of grievous bodily harm the more serious offence of unlawfully doing grievous bodily harm with intent.  The applicant was sentenced to an effective term of seven and a half years' imprisonment with a declaration that he was convicted in respect of each offence of grievous bodily harm of a serious violent offence under Part 9A, Penalties & Sentences Act 1992 (Qld).  He was also sentenced to concurrent lesser periods of imprisonment on an ex officio indictment charging him with breaking and entering premises and stealing and stealing in May 2000.  He was additionally ordered to serve the balance of nine months of a suspended sentence which was activated by his conviction on these offences and that sentence was also ordered to be served concurrently.

His detailed outline of argument in his application for leave to appeal against sentence raises a number of matters but largely emphasises that the learned sentencing Judge gave insufficient weight to the conduct of the three complainants in trespassing and refusing to leave the premises and that this contributed to their injuries.  He also contends that insufficient weight was given to his plea of guilty and to his earlier cooperation at another time in giving evidence against inmates at the prison in respect of four murder trials.

The applicant was represented at his sentence by an experienced barrister in criminal matters and, as has been noted, his pleas of guilty to the counts of grievous bodily harm simpliciter resulted in the prosecution not pursuing the more serious case against him arising out of those facts.

He was 32 at sentence.  He had a very extensive criminal history, commencing as a child interstate in 1981.  His Queensland criminal history commenced in the Childrens Court in Toowoomba in 1987 with two convictions for stealing.  He was convicted in the Brisbane Magistrates Court in 1990 for minor drug offences for which he was fined.  He continued to commit some minor traffic offences in 1990, for which he was also fined, and later that year was ordered to serve 60 hours' community service and pay restitution of a small amount for the offence of breaking and entering a dwelling house with intent.  Later again in 1990 he was placed on probation for three years for offences of break, entering and stealing and stealing.  A few weeks later he was sentenced to an effective term of six months' imprisonment followed by three years' probation for offences of aggravated assault on a female, breaching his community based orders, drug and property offences.  In 1991, he was sentenced to 12 months' imprisonment for assault occasioning bodily harm and break and entering with intent.  He was convicted of further traffic offences and minor property offences in 1993 and 1994.  In April 1994, he was sentenced to 18 months' imprisonment with a recommendation for parole after six months for break, enter and steal, which was committed in 1990.  In 1996 he was convicted of unlawful use of a motor vehicle which had occurred three years earlier and was fined. 

More significantly, in 1997, he was sentenced to five and a half years' imprisonment for the offence of grievous bodily harm.  The circumstances of that offence are as follows.  The applicant alleged the complainant stole money from him.  The complainant strenuously denied this allegation.  The two had been drinking at the Criterion Hotel at Warwick.  The complainant decided to leave the hotel because he was frightened.  He did so secretly because he was concerned that the applicant may pursue him.  His fear became a reality.  The applicant hid in an alley near the Town Hall, but had no further recollection of events until he woke up in hospital some days later.  A witness and co-offender, Mr Olley, said he saw the applicant take a steel pole and seek out the complainant, beating him.  The complainant in that case suffered lacerations to his head, a broken top front tooth, a ruptured spleen, a hole in his lung, swollen and bruised kidney, damage to the lower pancreas and a shattered left forearm which required an insertion of a plate.  The applicant was convicted of that offence after a trial, and unsuccessfully appealed against both his conviction and sentence. 

Later in 1997, he was sentenced to a concurrent term of 12 months' imprisonment for breaking and entering a place with intent.  Finally in 2001, he was sentenced to 12 months' imprisonment suspended for two years after serving three months for a series of traffic offences.  As has been noted, these offences were committed during the operational period for that offence.  It was also observed at the sentence that these offences occurred two weeks before expiration of the earlier sentence for the offence of grievous bodily harm.

When the applicant was last sentenced on the traffic offences, the Court took into account matters relevant to s 13A Penalties & Sentences Act 1992 (Qld), in that he gave assistance to the authorities in respect of a notorious prison murder.  Four men were charged as a result of his assistance and one was convicted.  He was in protective custody at the time he gave that evidence and has remained in protective custody and expects to do so until his eventual release.

The facts of the offences that concern this Court are as follows.  On the 27th March 2002, the complainants and two friends were drinking at the Alderley Arms Hotel where the applicant and his friends were also drinking.  The three complainants were soldiers in the Australian Army based at the Enoggera Army Barracks and they were celebrating the visit of a friend from Victoria.  The hotel closed at about 11.30 p.m. and the protagonists waited outside under an awning sheltering from the rain.  The complainant Berry remembers talking to a male wearing a cowboy hat who was later identified as the applicant.  The three complainants and their two friends walked along Samford Road with the applicant to drink at the home of Mr Waite, a friend of the applicant.

The applicant suggested the quickest way to the carpark was down a laneway at the back of the hotel.  Whilst they walked along, one of the complainants, Ross, took a plant out of what he thought was the hotel garden, but later realised was a private driveway.  It was actually the driveway of Mr Waite's residence.  Ross was looking for some newspapers underneath the unit complex where Waite resided, because he wanted to wrap his plant in the newspaper.  Someone in the applicant's group asked him "What are you trying to steal?" and an aggressive exchange followed between the two groups.

Unsurprisingly, there was a discrepancy between the version of events described by the witnesses in the two camps.  Some in the applicant's group claim they heard a complainant's friend say they were looking for cases of beer to steal.  The complainants unsurprisingly deny this.  The complainant Berry walked up the stairs to Mr Waite's unit, but was told that he was the only one of his friends invited inside because the rest of his friends were "dickheads".  Berry said that if that was so, he would not come in.  Another verbal altercation ensued between the two groups, with the applicant's group becoming aggressive and abusive.  Mr Waite came out of his unit holding an aluminium baseball bat, screaming and threatening to smash in the heads of the complainant's group if they did not get off his property.  Berry offered to fight Mr Waite if he dropped the bat and they could "go one on one".  Mr Waite dropped the baseball bat on his verandah, went inside his flat and came back outside, brandishing scissors and threatening to stab with them.  The applicant grabbed the baseball bat and began to swing it.  He ran down the stairs into the backyard whilst his friends remained on the verandah.  Ross picked up a timber stake when the applicant confronted him.  The applicant yelled and ran at him.  Ross said, "Look, mate, just take your boys and go inside, we're going now too.  We're out of here."  The applicant said, "They're not my boys, they can do what they like."  The exchange became more aggressive and the applicant swung the baseball bat at Ross, but missed him.  Berry, claiming he feared for Ross' wellbeing, ran over to help.  The applicant swung with full force at Berry's head several times, initially missing Berry but Berry was finally struck, fell down and blacked out.  Berry had a laceration to his left ear and swelling to his forehead.  He had a left frontal extradural haematoma and an intracerebral haemorrhage which resulted in facial weakness and a reduction in his speech requiring therapy.  This constituted the first count of grievous bodily harm.

Berry's friends joined him and the fracas continued.  The applicant ran towards the complainant Johnson, who put his hand up and said, "No, no, no, I don't want to fight."  The applicant nevertheless swung the bat and hit Johnson to the left side of the head.  He fell to the ground and tried to stand up again.  The applicant hit him again to the left side of the head.  Johnson suffered a left and right frontal extradural haematoma which required corrective surgery.  He had a contusion over his left eye and front scalp and suffered permanent cognitive memory deficit.  His injuries were life- threatening.  This constituted the second count of grievous bodily harm.

Ross then jumped over the fence and grabbed Johnson, trying to pull him through it.  The applicant pulled Johnson in the other direction and swung the bat five or six times at both Ross and Johnson.  He hit Ross to the right side of the head and on his left shin and upper right arm.  Ross was not armed at this time.  He did not suffer life-threatening or permanent injuries.  These circumstances constituted the offence of assault occasioning bodily harm whilst armed.

The complainants and their friends departed in vehicles.  Ross was the driver of one vehicle and it is not to his credit that when he saw the applicant outside the hotel alone and unarmed shortly afterwards, Ross got out of his car and assaulted the applicant.  He then returned to his car and the complainants and their friends returned to the Army barracks where they were treated at the Army hospital.  When it was realised that their injuries were serious they were taken to the Royal Brisbane Hospital.

Police spoke to the applicant on the 28th March.  He said he knew nothing about the assault, but that he would contact the residents of the unit and make inquiries.  About 20 minutes later he rang the police and then spoke to the arresting officer, admitting knowledge of the assault and agreeing to be interviewed by police.  He was asked for and provided his clothes that he was wearing the previous night.  These were later analysed and found to contain DNA material consistent with the complainants' blood.  He admitted his involvement, but blamed the complainants for having caused the incident, which he conceded got out of hand and went too far.

The applicant's counsel submitted at sentence that the applicant always intended to plead guilty to these offences but the issue of intent was contentious.  Once the prosecution agreed to accept the pleas of guilty to grievous bodily harm simpliciter, he pleaded guilty at an early time.

The complainant Berry provided a victim impact statement which indicated that since the offence he has had difficulties in understanding and learning and difficulties in swallowing, especially when his tongue is in spasm.  On those occasions he has difficulty speaking.  He has had convulsions on two occasions since the offence was committed and has been admitted to hospital.  He now suffers from epilepsy and takes medication.  He may be required to take medication for the rest of his life.  As a result of these epileptic episodes, he has been discharged from the Australian Army as medically unfit and many civilian positions, for example those involving driving, are now closed to him.  He has been significantly emotionally affected by his physical and cognitive deficits and his loss of career.

Mr Johnson also tendered a written impact statement outlining the trauma of his hospitalisation.  He believed he was going to die and his family came from Victoria to be with him.  He was hospitalised for about two weeks.  He has had personality changes, has trouble controlling his temper and has lost his appetite since the commission of the offence.  He has been regularly treated by a speech pathologist, an occupational therapist, a psychologist and a neuro surgeon.  He has become withdrawn socially and his career prospects with the Australian Army are now uncertain because of his physical condition.  He was unable to continue with his studies for promotion to corporal and believes his Army career has been set back at least two years.

The complainants, Mr Berry and Mr Johnston, attended the sentencing process and directly addressed his Honour, outlining the devastating effect these offences had on their lives.

The prosecution at sentence contended that a penalty of between eight to nine years with a declaration of a conviction of a serious violent offence was appropriate and that an eight year sentence recognised sufficiently the applicant's guilty plea.

The applicant's defence counsel had a difficult task in best presenting the mitigating facts here because of the devastating effect of the applicant's offences on the complainants and his prior conviction for a like offence.  The defence counsel conceded at sentence that the offences were serious and justified a lengthy term of imprisonment.  He emphasised the offences were part of one incident which got out of hand, fuelled by alcohol, peers, and misunderstandings.  He stated that the applicant understood his behaviour on the night was completely unacceptable and that he had no defence in inflicting such serious injury in the circumstances.

Defence counsel emphasised, however, that when the applicant  was only 16 years old he went to a hotel with his father when a fight ensued.  His father stepped in to assist others and was assaulted by 12 men and as a result, died later that night.  He had had a severely dysfunctional upbringing.  His parents separated when he was only two years of age.  His mother was an alcoholic prone to fits of violence against his siblings and him.  His father was also a violent man who inflicted severe punishment for minor infringements.  His father taught him to steal when he was a youth and stealing became a necessity because of the extreme poverty in which he was brought up.  His father instilled in him, however, a strong work ethic and he had a good employment history.  A number of very favourable work references were tendered on the applicant's behalf at sentence.

Reading from his written instructions, the applicant's counsel at sentence said that, in respect of these offences, the applicant felt "given his history and that incident when he was 16 that he did not feel safe until both men went down."

The applicant's counsel submitted that a sentence in the order of eight years' imprisonment was appropriate as a starting point, and that a declaration that the convictions were of serious violent offences, were open.  His counsel emphasised that the applicant had given evidence on four murder trials occurring inside prison.  The applicant had served his terms of imprisonment in protective custody, and that this was particularly difficult for him.  He had come forward to give evidence in the gaol murder trials in circumstances where few would have been prepared to do so.

For a combination of the mitigating factors, the applicant's counsel was able to persuade the learned sentencing Judge that a sentence of seven and a half years' imprisonment with a declaration of convictions of a serious violent offence was appropriate as a global sentence.

A reading of his Honour's careful, considered and relevant sentencing remarks demonstrate that his Honour accepted the submissions made by the applicant's counsel at sentence.  His Honour noted all the salient points made by defence counsel and particularly took into account the applicant's plea of guilty, his unfortunate background, his considerable cooperation with the authorities in respect of the gaol killings and the background circumstances of these offences. In imposing the effective sentence of seven and a half years' imprisonment with a declaration that the offences of grievous bodily harm were serious violent offences, his Honour imposed concurrent sentences for the breached suspended term of imprisonment and on the offences in the ex officio indictment.

The applicant committed these offences as a mature man with a significant criminal history and in particular, a prior conviction for grievous bodily harm for which he received a lengthy prison sentence.  These offences were committed whilst he was armed with a baseball bat against unarmed victims.  The unfortunate complainants in the offences of grievous bodily harm have had their lives devastated by his actions and will live with those consequences for the rest of their lives.

The sentence imposed on the applicant in this case, even taking into account the considerable number of mitigating factors, was undoubtedly within the range contended for by counsel at sentence and is consistent with the observations of this Court in R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003 and consistent with the sentences imposed by this Court in R v Hoogsaad [2001] QCA 27; CA No 277 of 2000, 8 February 2000 and R v Swayn [1998] QCA 171; CA No 59 of 1998, 8 May 1998.

It cannot be said that the sentence was manifestly excessive.  I would refuse the application for leave to appeal against sentence.

MACKENZIE J:  I agree.

WILSON J:  I agree that the application should be dismissed, for the reasons given by the President.

THE PRESIDENT:  That is the order of the Court.