R v Hills[2004] QCA 205

SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA: In this application I have had the advantage of reading the reasons for judgment and order proposed by Philippides J, and I respectfully agree with what Her Honour has written.  I add the following comments.

[2] Mr Hills argued his application himself and is plainly an intelligent and capable person.  It is also clear from what he said during the hearing that he still prefers to excuse his own behaviour rather than admit he has broken the law.  For example, he described his conviction for the dangerous operation of a motor vehicle, incurred on 1 August 2002, as resulting from a car sliding on a road.  The implication was that this was accidental behaviour of a vehicle rather than its dangerous operation by him.  Nevertheless, he was convicted.

[3] Likewise he explained his convictions incurred on 9 May 2003 for various offences involving weapons as having happened because he possessed two shortened firearms (a rifle and shotgun).  He said his reason for having them was the very hard and dangerous nature of some of the men he had spent so many years with in a Queensland prison.  Fear of what those men might want to do to him did not explain why the weapons were shortened, nor why their identification marks had been altered.  He said that was the condition in which he had acquired the weapons; but he pleaded guilty to altering those marks.

[4] That persisting willingness to excuse what he has done in the past makes it very difficult to hold that the sentence imposed on him was manifestly excessive.  It certainly was a severe sentence for his offence, which was committed by just one blow, and it involved no weapons at all.  The observation could also be made that imprisoning Mr Hills is achieving little in deterring him from the use of violence and is not achieving any of the rehabilitation which his obvious intelligence shows to be possible.  Mr Hills described having received reasonably intensive counselling in anger management for a number of months prior to being sentenced for his last offence.  He had therefore taken some steps towards attempting a change in his pattern of behaviour.

[5] In an appropriate case the sound judgment of a sentencing court dealing with this offence could well be that the safety of the community was better assured, even when sentencing a man with a criminal record as extensive as that of Mr Hills, by imposing a sentence in which he was given more help in his life outside a prison, such as a sentence of 12 months imprisonment followed by probation for three years.  That sentence might be justified in a case of this nature as according with the requirements of s 9(4)(k) of the Penalties and Sentences Act 1992 (Qld), and within the appropriate range of sentencing discretionary outcomes, where there was a particular reason for expecting a positive response to a more lenient order.  The problem in this application is that Mr Hills did not show by his own argument that he has sufficiently acknowledged his own past level of wrongdoing to encourage that degree of optimism.

[6] Accordingly, I agree with Philippides J.

[7]  ATKINSON J:  I agree that the application for leave to appeal against sentence should be dismissed for the reasons given by Philippides J.

[8]  PHILIPPIDES J:  The applicant was found guilty after trial of one count of assault occasioning bodily harm and sentenced to 3 years imprisonment.  He seeks leave to appeal against that sentence on the ground that it is manifestly excessive.

[9] The applicant was born on 8 December 1967 and was 34 years of age at the time of the offence.  The offence took place in a hotel.  The complainant (who was a man more slightly built than the applicant) was sitting at a table and had reached for his cigarettes after asking that they be returned.  The applicant struck the complainant, a single but severe blow to the face, which caused unconsciousness, a broken nose, some facial injury and four teeth to be broken, requiring about $5,800 in dental repairs.

[10]  The applicant’s case had been that the cigarettes were his and that the complainant had grabbed for them resulting in pain to the applicant’s injured finger, causing the applicant to lash out with his left hand.  The learned sentencing judge accepted that the applicant had suffered an injury to his finger and that the injury was still sensitive and painful if touched.

[11]  The prosecution had submitted at first instance that the relevant sentencing range was one of 3 to 5 years and contended that a declaration that the offence was a serious violent offence was also within the sentencing discretion.

[12]  The learned sentencing judge declined to make a declaration.  In imposing a sentence of 3 years imprisonment, His Honour took into account by way of mitigation that the applicant had sought to address his behaviour by anger management counselling and that he had recently formed a relationship, resulting in his fathering a child and assuming family responsibilities.  Against that, His Honour also had regard to the applicant’s criminal history which includes offences of assault occasioning bodily harm, offences of assaulting prison officers, common assault, indecent assault, armed robbery in company, escaping lawful custody and attempted escape. 

[13]  The applicant’s criminal history was described by the learned sentencing judge as “deplorable”.  The present offence was committed some 14 months after the applicant had been released from prison.  The extensive nature of the criminal history is abundantly clear when the offences are considered in their chronological context. 

[14]  In the 1980s, in New South Wales, the applicant acquired a number of convictions for assault and other offences, for which he received effectively non-custodial sentences.  On 31 May 1990, the applicant was sentenced to 4½ years imprisonment for offences of indecent assault, common assault and assault occasioning bodily harm that occurred on 9 April 1990.  He was also on 31 May 1990 sentenced for indecent assault committed on 2 March 1990 and unlawful assault committed on 21 March 1990 for which lesser sentences were imposed.  Whilst in prison he was sentenced on 20 June 1990 to a further three months imprisonment for assault on a prison officer which occurred on 16 June 1990.  He was again sentenced on 30 July 1990 for an additional period of 6 months for escaping custody.  On 20 March 1991 the applicant was sentenced to 6½ years imprisonment for armed robbery and other offences that occurred on 27 July 1990, bringing his total incarceration period to approximately 12 years.  He was further sentenced to 6 months imprisonment on 26 July 1991 for assaulting a prison officer on 26 June 1991.  On 15 July 1992 he was sentenced to 6 months for attempting to escape custody on 9 February 1992.  On 9 November 1992 he was sentenced to 6 months imprisonment for an assault occasioning bodily harm which took place on 23 September 1992.  On 24 December 1992 he was sentenced to 6 months for the assault of a prison officer having occurred on 28 November 1992.  On 28 July 1998 he was sentenced to a further 6 months imprisonment for the assault of a prison officer which occurred on 3 November 1996.  Since his release from prison the applicant has also been dealt with for offences other than the present offence.  He was sentenced on 9 May 2003 for offences involving the unlawful possession, shortening, altering of identification numbers and unsecured storage of firearms which occurred on 8 May 2003. 

[15]  Before this court the applicant submitted that the applicable sentencing range was 12 to 16 months.  It was said that consistently with the jury’s verdict, the applicant fell to be sentenced on the basis that there was a basis for the applicant’s response, but that it was excessive.

[16]  While the applicant is to be commended for seeking professional assistance in the form of anger management counselling and it is clear that the applicant indeed had an injured finger, which was painful on being touched, it nevertheless cannot be said that the learned sentencing judge failed to give proper weight to those and the other matters of mitigation.  Given the applicant’s serious history of violent offences and having regard to comparatives, such as R v Hadland [2000] QCA 182, it is clear that the sentence imposed was within the relevant sentencing discretion.  I would dismiss the application.