R v Summers; ex parte Attorney-General
[2004] QCA 275
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- R v Summers; ex parte Attorney-General[2004] QCA 275
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R v Summers; ex parte Attorney-General[2004] QCA 275
R v Summers; ex parte Attorney-General[2004] QCA 275
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 739 of 2004 |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED EX |
|
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 August 2004 |
JUDGES: | McMurdo P, Williams JA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: |
|
CATCHWORDS: | 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 applicant convicted after trial of one count of assault occasioning bodily harm whilst armed with an offensive instrument – where sustained assault against de facto wife involved threatening her with a tyre lever, hitting her in the head with a hammer and squeezing her throat – where respondent on weekend release from prison when offence committed – where respondent was serving term of imprisonment for very similar offence against his previous de facto wife – where sentenced to 12 months imprisonment for this offence – whether sentence imposed was manifestly inadequate – whether sentence should have been made cumulative Penalties and Sentences Act 1992 (Qld), s 156A, s 157(3) R v Bell [2000] QCA 485; CA No 235 of 2000, 23 November 2000, considered R v C [2000] QCA 154 CA No 34 of 2000, 3 May 2000, considered R v Hadland, [2000] QCA 182; CA No 368 of 1999, 16 May 2000, considered |
COUNSEL: | B G Campbell for the appellant B G Devereaux for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
THE PRESIDENT: The respondent pleaded not guilty to one count of assault and one count of torture, alternatively assault occasioning bodily harm whilst armed with an offensive instrument on 1 April 2004. A nolle prosequi was entered at the close of the Crown case on the assault charge. He was convicted only of the alternate count of assault occasioning bodily harm whilst armed with an offensive instrument. The jury were unable to agree on a verdict on the torture charge. The prosecution accepted the guilty verdict in full discharge of the indictment. Summers was sentenced to 12 months imprisonment. The appellant, the Attorney-General of Queensland, contends that the sentence was manifestly inadequate.
The maximum penalty was 10 years imprisonment.
Mr Summers was 39 years old at sentence. He has a concerning criminal history commencing in 1983 with a conviction for possessing a concealable firearm. He has a number of convictions for driving a motor vehicle whilst under the influence of liquor and for unlawful use of a motor vehicle. In 2000, he was convicted of entering a dwelling house in the night time with intent and unlawful assault, committed in 1996, and was sentenced to six months imprisonment wholly suspended for 18 months. On 31 May 2001, he was convicted of three counts of assault occasioning bodily harm whilst armed and one count of assault occasioning bodily harm simpliciter and sentenced to three years imprisonment with a recommendation for parole after 12 months. These offences occurred in October 1999. The sentencing remarks from that occasion were tendered. They record that he was 34 years old at the time and pleaded guilty. The offences involved a prolonged and protracted assault on his then de facto wife in which he subjected her to a severe beating and behaved in a bizarre and degrading manner, showing no respect for her. The offences involved striking her with a hammer and a tyre lever and threatening her with a knife and injuring her arm.
The facts of the offence concerned in this appeal show a chilling resemblance. Mr Summers was engaged to the complainant before he was imprisoned in 2001. On 6 September 2002, she collected him from prison for weekend leave. She was a complainant in relation to a rape charge and the committal hearing was approaching. Mr Summers was concerned about the rape but the complainant did not wish to discuss her evidence or the pending proceedings. During the course of the evening of 6 September 2001, Mr Summers became angry with her particularly when he questioned her about the rape. He repeatedly accused her of enjoying it. He threatened her with a tyre lever. Early on 7 September 2002, he again became angry and repeatedly struck her with a hammer to the head, abdomen and buttocks. He punched her, kneed her in the groin and squeezed her around the throat so that she had difficulty breathing. The sustained attack lasted over an hour. She tried to get assistance by ringing triple 0 on her mobile phone. She said that he struck her in the head with a hammer about seven times and tried to strike her on many more occasions. He also hit her on the knee, left arm and backside four times with the metal end of the hammer and poked her in the stomach with its wooden handle. She was terrified, in extreme pain and thought she was going to die. She eventually escaped when Mr Summers went to the toilet, sought assistance in a nearby house and contacted police.
Later that day she was examined by a doctor who noted the following injuries: a bruise over the left eyebrow; a subconjunctival haemorrhage over the left eye; boggy bruising over the left temple; a five centimetre contusion to the left upper arm; a bruised joint in the left ring finger; a nine centimetre contusion on the left upper chest; a 3.5 centimetre contusion over the left lower ribs; petechiae over the front of the neck; petechiae over the right breast; scratches and bruises to the lower right arm; abrasions, scratches and bruising to the lower abdomen; and a four centimetre contusion to the right buttock.
The learned primary Judge who had the advantage of observing both Summers and the complainant during the trial noted in passing sentence that the alternative offence of which Mr Summers was convicted was added to the indictment only on the morning of the trial. His guilt was not seriously contested during the trial and was almost conceded in his counsel's address so that he should be given some benefit for his co-operation with the criminal justice system. Her Honour also noted that Mr Summers had served almost the full period of the 2001 three year sentence and had been continually in custody since his commission of this offence.
It seems that her Honour considered Summers would not be granted future parole but thought that he should serve a further 12 months in actual custody and so imposed the sentence of 12 months imprisonment. Such an approach, tailored to a consideration as to whether an offender is likely to be released on post-prison community based release, is not appropriate if the effect is to make the actual sentence imposed manifestly inadequate.
The prosecutor at sentence asked for a cumulative sentence of four years imprisonment, possibly with a declaration that it was a serious violent offence. That is the sentence the appellant now contends should be substituted.
Because the offence was committed whilst Mr Summers was on leave of absence from a term of imprisonment it is common ground on this appeal that the sentence imposed was required to be served cumulatively, see s 156A Penalties and Sentences Act 1992 (Qld) ("the Act"). Her Honour erred in not making the sentence of 12 months cumulative. Because of the cumulative nature of the sentence which must be imposed, the term of imprisonment Summers was then serving was more than two years and under s 157(3) of the Act her Honour was required to make such a recommendation. Those errors alone require this Court's intervention.
The appellant contends that the comparable sentence of R v Hadland [2000] QCA 182; CA No 368 of 1999, 16 May 2000, shows that the sentence here was manifestly inadequate and supports a term of imprisonment of four years with a declaration under s 161B of the Act. Hadland was convicted of a particularly vicious assault occasioning bodily harm involving, among other acts of violence, striking the complainant on the side of the head with sufficient force to cause a ruptured ear drum. The force used was systematic and sustained. Hadland had a history of assaults on women. This Court found that the sentence of four years cumulative imprisonment with a declaration that he was convicted of a serious violent offence was within a sound sentencing discretion and declined to interfere in his application for leave to appeal against the sentence.
Summers' counsel on this appeal relies on two cases as comparable - R v Bell [2000] QCA 485; CA No 235 of 2000, 23 November 2000, and R v C [2000] QCA 154; CA No 34 of 2000, 3 May 2000. In Bell, the Attorney-General appealed against the effective sentence of two years imprisonment with a recommendation for parole eligibility after nine months imposed in respect of charges contained in one indictment of two counts of assault occasioning bodily harm and another indictment of two counts of assault occasioning bodily harm whilst armed, one count of unlawful wounding and two counts of assault occasioning bodily harm simpliciter.
As here, Bell's victim was his de facto spouse. He pleaded guilty. He assaulted his partner with a hammer because she refused to give him cigarettes. On another occasion, he punched her in the mouth, knocking her to the ground, choked her and threw a brick at her. Later, he struck her on the head with a billy can causing a laceration which required stitches. He then picked up a kitchen knife and swung it at her. She received lacerations to her hands defending herself. He again picked up a brick and hit her on the right shoulder. Later, he pushed her onto the road and kicked her in the head causing bruising to her body. A few hours later, he grabbed her by the throat to stop her screaming and used a great deal of force. He, too, had a bad criminal record involving assaults on females. This Court determined Bell's sentence was inadequate and the effective sentence was increased to three and a half years imprisonment with a recommendation for parole eligibility after 18 months.
C pleaded guilty to a number of offences committed on his de facto wife over two separate days. He was on bail pending appeal in respect of a sentence of 18 months imprisonment for an aggravated indecent dealing of his 12 year old stepdaughter. The first offence, assault occasioning bodily harm, occurred when he was intoxicated and he grabbed the complainant by the legs making her fall from the bed on which she was sitting. She hit the dressing table with her knee and suffered discomfort for a few days. They had been in a relationship for about six months and she was 20 weeks pregnant. A week later she left the matrimonial home leaving a note which he interpreted as a threat to harm herself and the child. When she returned later, he assaulted her by punching and slapping her pushing her against the wall and dragging her by the hair into another room where he indecently assaulted her. He left after threatening and abusing her but then returned to again punch her repeatedly. He left and returned again this time throttling her and smothering her with a pillow. He again left the room only to return and threaten to strike her with an ashtray before slapping her with his hand. He left and returned yet again, this time with a pick handle which he used to hit her on the backside and thighs. He grabbed her hair and hit at her head with the pick handle. She intercepted the blow with her hands which were injured. He again left and returned this time accusing her of carrying someone else's child and assaulted her with his hands. The assaults continued over a half hour period. She was finally able to escape by persuading him to let her go to the toilet. The primary judge imposed an effective sentence of three years cumulative on the sentence that the applicant was already serving even though the Prosecutor had submitted that an effective sentence of two and a half years cumulative imprisonment was appropriate. This Court determined that the sentence imposed was not manifestly excessive.
These comparable sentences clearly demonstrate that the sentence imposed by the learned primary Judge here of 12 months imprisonment was manifestly inadequate. The fact that Mr Summers had, by the date of sentence, been in custody virtually continuously since his conviction on the 2001 offences is irrelevant because this sentence had to be cumulative upon that sentence (s 157(3) of the Act). He committed this serious offence of violence whilst on weekend leave and the frightening similarities between this offence and his earlier offending of which he was convicted in 2001 are particularly concerning.
A sentence of three years cumulative imprisonment with a recommendation that the respondent be eligible to apply for post prison community based release on 6 October 2005 reflects as much as this Court is able the intention of the experienced sentencing judge who had the benefit of observing all the witnesses at trial and who did not consider that a declaration under s 161B of the Act was warranted. It is also a sentence which is within the appropriate range demonstrated by the comparable sentences.
I would allow the appeal and instead of the sentence of 12 months imprisonment substitute a sentence of three years imprisonment to be served cumulatively upon the sentence the respondent was serving on 2 April 2004, with a recommendation that he be eligible to apply for post-prison community based release on 6 October 2005.
WILLIAMS JA: I agree that there were errors in the sentencing process at first instance and that the sentence imposed was manifestly inadequate. I agree that the sentence should be increased as indicated by the President in her reasons.
DUTNEY J: I agree.