R v Hobson[2003] QCA 67

SUPREME COURT OF QUEENSLAND

PHILIPPIDES J:  This is an application for leave to appeal against the sentence imposed upon the applicant on the ground that the sentence was manifestly excessive and also that there were errors made by the learned sentencing Judge in imposing the sentence he imposed.

On 28 October 2002 the applicant pleaded guilty to one count of burglary in the night and one count of grievous bodily harm and was sentenced to three years' imprisonment in respect of each offence.  The applicant was 22 years of age at the time the offences were committed.  The complainant was 15 years old at the time and had been in a relationship with the applicant for the previous 12 months.

The applicant had been a visitor at the complainant's household.  The complainant and her family had moved from the Coen area to Kowanyama and had returned to Coen not long before the incident the subject of this application.  The applicant had learnt that the complainant's family had returned. 

At about 1.00 a.m. on 21 September 2001 the complainant heard the applicant calling out her name.  She went to the lounge room to find the applicant standing there.  He appeared to be drunk.  He then pulled her hair very hard and she fell to the floor screaming.  She assumed the foetal position. 

The applicant then began to kick her.  At this point the complainant's mother arrived home.  The applicant said to the complainant, "You shouldn't have come back from Kowanyama.  You're a slut.  You're a big hole" and he then stopped kicking the complainant and ran next door.  The complainant thought that she was kicked at least six to seven times to the head areas.

The complainant suffered lacerations to the inner part of her right upper and lower eyelids, tear drainage damage, haemorrhaging in her eyes, lacerations to her lip and facial bruising.  She could not see out of her right eye for some time.  She underwent surgery on her right eye in the Royal Brisbane Hospital to prevent permanent cosmetic deformity and damage to the tear ducts.

Without this intervention there would have been permanent injury to the tear ducts.  This is the basis of the allegation of grievous bodily harm.  Following surgery the prognosis for the complainant was reasonable. 

The applicant and the complainant reconciled after the offences and have a child together who was born on 31 August 2001.  At the time he was sentenced the applicant and the complainant were raising that child together as a couple and were living together with the complainant's maternal grandmother.

In imposing sentence on the applicant the learned sentencing Judge had regard to the applicant's criminal history which concerned a prior conviction for assault in February 2000 and  the community justice group's submission which emphasised the need to send a strong message of deterrence to young men in the community.  However, his Honour also took into account matters of mitigation including the applicant's plea of guilty and what his Honour described as the applicant's expressed commitment to raising his child together with the complainant and a marked improvement in the applicant's attitude and behaviour since the offences were committed, during which period the applicant, as I mentioned, had been on bail.  His Honour also referred to the community justice group's view that consideration could be given to suspending some part of a custodial sentence. 

The applicant submitted that the learned sentencing Judge erred in law in that his Honour was distracted by considerations which were either inaccurate, irrelevant or unhelpful.  In this regard, it was submitted that his Honour fell into error in a number of ways.  Reference was made to comments by his Honour in the course of argument that the applicant was lucky that he was not charged with unlawful carnal knowledge.  However, a perusal of the transcript indicates that the learned sentencing Judge qualified that comment by, in fact, indicating that there was uncertainty as to the age of the complainant and there is indeed nothing in his sentencing remarks which points to his Honour being influenced by such considerations.

The applicant also challenges his Honour's observations as to the consequences which may flow where a sentence of more than two years is imposed.  Particular reference was made to his Honour's comment, in the course of oral submissions, that a three year sentence carried a right to early community release as did a sentence of over two years.  In making those comments his Honour merely appears to have been alluding, in a general way, to the new regime under the Corrective Services Act 2000 concerning eligibility for conditional release in respect of sentences of two years or less as compared with eligibility for post prison community based release where a sentence of two years or more is imposed.

Counsel for the applicant also referred to his Honour's comment that the prosecution's sentence recommendations were probably not high enough.  The prosecutor had submitted that the appropriate sentence was one of five years' imprisonment with a recommendation for parole after 18 months but as low as three years and that if a sentence at the bottom range were imposed there should be no recommendation or suspension.

There is nothing improper in his Honour's comments as to the appropriateness of the prosecution's submissions as to the sentencing range.  Indeed, quite the contrary.

The applicant contended that the learned sentencing Judge erred by accepting the Crown submission that there was a special category of burglary known as home invasion into which category the offence fell which attracted a range of three to five years' imprisonment.  However, I do not consider that his Honour's remarks that he accepted the prosecution's submissions can necessarily be seen in the manner contended for by the applicant.  Rather, his Honour's acceptance of the prosecutions submissions went to the appropriateness of the sentence suggested by the prosecution having regard to the serious nature of the offence and the fact that the applicant was present uninvited.  His Honour does not appear to have been influenced by the prosecutor's use of the term "home invasion" as determinative of the nature of an appropriate sentence for this offence.  Counsel for the applicant submitted that while a term of imprisonment was necessary the sentence imposed was manifestly excessive.

Counsel for the applicant referred to the unique nature of the facts of this case, most notably, the relationship between the applicant and the complainant which was resumed after the offences were committed.  Counsel for the applicant submitted that an appropriate sentence would be one of six months' imprisonment, at the end of which period the applicant be released under the supervision of an authorised corrective services officer for a period of three years.  This, it was said, would ensure a certain release date and encourage rehabilitation through the applicant's relationship with the complainant and their child. 

The respondent, on the other hand, submitted that the applicant was given sufficient allowance by the learned sentencing Judge for his personal circumstances and his plea of guilty and that his Honour was correct to recognise the strong need for a deterrent sentence.  Furthermore, counsel for the respondent submitted that at sentence the head sentence proposed by the prosecution was not seriously contested by the applicant's counsel, whose submissions had centred primarily on the proposition that the sentence imposed should be wholly or partially suspended.

Given the circumstances of this case, it is difficult to find any case that can be said to be truly comparative.  However, I consider that there was a combination of circumstances peculiar to this case which indicate that the sentence imposed was manifestly excessive.  In particular, the applicant's youth, his demonstrated capacity for rehabilitator, the fact that the applicant and the complainant became reconciled after the offences and the fact that the applicant had shared a responsibility for his child are important mitigating considerations as, of course, is the timely plea.

In those circumstances, notwithstanding that it is appropriate to recognize the need for deterrence in a case such as this one, a sentence of three years' imprisonment was outside the appropriate sentencing range.  It is therefore necessary to exercise the sentencing discretion afresh.   In doing so, it is important to recognise that, whilst a lesser period of imprisonment is called for, the sentence imposed should include a component that continues to have effect following the applicant's release from custody.  That can appropriately be achieved in this case by imposing a term of imprisonment of 12 months coupled with an order for probation for two years thereafter.

Accordingly, I would grant leave to appeal.  I would set aside the sentence imposed and in lieu thereof impose a sentence of 12 months' imprisonment and order that thereafter the applicant be released under the supervision of an authorised corrective services officer for a period of two years.

McPHERSON JA:  I agree.

DAVIES JA:  I agree.

McPHERSON JA:  The orders proposed by Justice Philippides will be the orders of the Court in this matter.