R v Eade
[2005] QCA 148
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Eade[2005] QCA 148
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R v Eade[2005] QCA 148
R v Eade[2005] QCA 148
SUPREME COURT OF QUEENSLAND
CITATION: | R v Eade [2005] QCA 148 |
PARTIES: | R v EADE, Mark Vivian (applicant) |
FILE NO/S: | CA No 50 of 2005 DC No 105 of 2004 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence application |
ORIGINATING COURT: | District Court at Bundaberg |
DELIVERED EX TEMPORE ON: | 10 May 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 May 2005 |
JUDGES: | McMurdo P, Muir and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal against sentence refused |
CATCHWORDS: | APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – convictions for grievous bodily harm with intent, assault occasioning bodily harm whilst armed and in company, dangerous operation of a motor vehicle and drink driving – effect of serious violent offence declaration - whether sentence imposed was manifestly excessive – consideration of youth and lack of prior convictions R v Bird and Schipper [2000] QCA 94, CA No 318 of 1999, CA No 325 of 1999, 24 March 2000, considered R v Bojovic [1999] QCA 206, CA No 4 of 1999, 8 June 1999, considered R v Bryan; ex-parte A-G (Qld) [2003] QCA 18, CA No 410 of 2002, 5 January 2003, considered R v Chambers (2002) 136 A Crim R 89, considered R v Fahey and Solomon and AD [2001] QCA 82, CA No 295 of 2000, CA No 305 of 2000, CA No 345 of 2000, 9 March 2000 |
COUNSEL: | A J Kimmins for the applicant M J Copley for the respondent |
SOLICITORS: | Price and Roobottom for the applicant Director of Public Prosecutions (Queensland) for the respondent |
THE PRESIDENT: Justice Wilson will deliver her reasons first.
WILSON J: The applicant pleaded guilty to the following offences committed on 24 April 2004 - grievous bodily harm with intent, assault occasioning bodily harm whilst armed and in company, dangerous operation of a motor vehicle causing grievous bodily harm whilst intoxicated, and a drink driving offence.
He was sentenced to 10 years imprisonment for the grievous bodily harm with intent: a declaration that he had committed a serious violent offence automatically followed.
For the other offences, he was sentenced to three years for the assault occasioning bodily harm and three years for the dangerous operation of a motor vehicle. The terms of imprisonment were to be served concurrently. No further penalty was imposed with respect to the drink driving offence. He had served 292 days of presentence custody, which was declared time already served under the sentence.
The offences occurred in Bundaberg. The two complainants, Brodie and Eccles, were visitors to Bundaberg. They were walking back to their motel at about midnight. As they walked along Bourbong Street two vehicles, one driven by the applicant, drove past. Some of the occupants of both vehicles yelled abuse at Eccles who yelled abuse back at them. Both vehicles then turned left into Maryborough Street and pulled up into angled car spaces.
Eccles approached the vehicles demanding to know who had yelled abuse at him. Brodie, who had been briefly off the scene, returned to see Eccles arguing with the occupants of both vehicles. He approached the group and saw one of the occupants of one of the vehicles trying to grab something from under the seat. He pushed and lent on the door of that vehicle, which was the applicant's, to try to stop the other occupants getting out. In doing so, he dented the door.
The applicant then hit Brodie over the back of the right shoulder with a hockey stick. Brodie fell. The applicant continued to hit him with the stick until it broke. According to an eyewitness, the applicant changed his grip. It was as if he had a crowbar which he was using to dig a hole in the ground. He inflicted blows upon Brodie's shoulder, body and head area. Brodie was curled up in a foetal position trying to protect himself. The applicant and others started kicking him about the head. Three or four people were involved. One person stood on Brodie's head.
Meanwhile Eccles was attacked by the group. He ended up on the ground being kicked and punched by three or four people. He was hit more than 10 times. According to one witness he was hit with a hockey stick.
The attackers returned to their vehicles. Brodie was still lying on the ground. The applicant reversed his vehicle over him. Both the front and back wheels went over him; then the applicant came forward and the front wheels went over Brodie again. Then he took off, driving around Bundaberg. He stopped near some friends outside the City Council Chambers and told them, "Man, I just flogged up a fella with a hockey stick and ran over him."
Police came to the scene at about 12.35 a.m. At 1.04 a.m. the applicant was breathalysed when the reading was 0.129. At 1.41 a.m. he had a blood alcohol concentration of 0.079.
Brodie sustained a closed head injury, cerebral oedema, extensive facial fractures, a fractured jaw and bruising of the left shoulder. He was taken to hospital where at least two operative procedures were performed before he was discharged on 7 May 2004. Brodie was aged 31. He was married with two children. He has been left with significantly diminished vision in his left eye, scarring and a change in his facial appearance. Further surgery is required. He has eating difficulties because of the misalignment of his jaw.
Before this incident, Brodie had worked in the construction industry but he is now classified as high risk and unlikely to return to that work. He and his family have been reduced to receiving social security payments. The effect on them all has been devastating.
Eccles sustained an eight centimetre laceration to his head which required sutures and a 1.5 centimetre laceration to his nose.
The applicant's cooperation with police was limited. He was initially not entirely truthful. He was charged with attempted murder. There was a full hand up committal, at the conclusion of which he indicated he would plead to the lesser charge. He pleaded to grievous bodily harm with intent on the day the indictment was presented.
The applicant has a dysfunctional background but no criminal history. He is in the low to average range of intellectual functioning. He was educated to grade 10. He started using marijuana and alcohol from early adolescence and experimented with other drugs. By the time of these offences he had a poly substance dependency and an associated mood disorder. These offences were fuelled by a combination of marijuana and alcohol. He has a girlfriend and a child who was aged five and a half months at sentence.
He was born on 17 September 1986, making him about 17 and a half at the time of the offences.
There were co-offenders who have not been dealt with, or at least not yet dealt with at the time of the applicant's sentence.
The maximum penalty which might have been imposed for grievous bodily harm with intent was life imprisonment. In the sentence proceedings counsel for the DPP and counsel for the present applicant concurred that the appropriate range of head sentence was nine to 13 years, and of course if the sentence were 10 years or more, a serious violent offence declaration would necessarily follow, otherwise it would be a matter of discretion.
On appeal, the applicant's counsel submitted that the appropriate range was six to eight years with a declaration. The thrust of the submissions on appeal was that while a declaration was appropriate this would mean the applicant would have to serve 80 percent of the term of imprisonment which was imposed and that accordingly the sentencing judge should have imposed a sentence towards the bottom of the range. The question, of course, is what was the appropriate range.
This Court has considered the effect of a serious violent offence declaration on a number of occasions, and sentencing towards the bottom of the range when such a declaration is to be imposed has been sanctioned in cases such as Bojovic [1999] QCA 206. But as the President pointed out in Bird and Schipper [2000] QCA 94, the effect of a declaration is simply that it is one of many competing factors for the sentencing Judge to consider in fixing a sentence within the appropriate range; it is not to design a sentence to avoid or reduce the effect of section 161B of the Penalties and Sentences Act 1992 (Qld).
The question is whether the sentences imposed were outside the appropriate range.
The rising incidence of street violence has led the Court to place considerable emphasis on deterrence in sentencing persons convicted of crimes such as these. It has led to the imposition of lengthy sentences even in cases of youthful offenders. It is not particularly helpful to refer to sentences imposed before the introduction of Part 9A of the Penalties and Sentences Act 1992 (Qld).
Mr Copley, for the respondent, submitted that perhaps the appropriate starting point was the decision of the Court of Appeal in R v Bryan; ex parte A-G (Qld) [2003] QCA 18. That was a charge of grievous bodily harm without the added element of intent. It involved a one on one attack with a knife on someone in the Mall. The Court there imposed, on appeal, a sentence of six years. A serious violent offence declaration was not asked for, although the Court indicated that it would have been an appropriate case to impose one had it been asked for.
Really the cases which are of most relevance in considering this matter are, firstly, Fahey and Solomon and AD [2001] QCA 82, and Chambers, Harrison and Fisher; ex parte A-G (Qld), (2002) 136 A Crim R 89.
The matter of Fahey and Solomon was decided by the Court of Appeal in March 2001. Relevantly two 17 year olds were convicted of grievous bodily harm with intent. The offences involved protracted head kicking and head stomping. The victim was left with chronic organic brain damage with severe cognitive deficits, memory deficits and an inability to walk. He was totally dependent for all personal care and his condition was permanent. There the offenders had significant criminal histories. They did not cooperate with the authorities. Sentences of 10 years imprisonment each were confirmed on appeal.
The attitude of the Courts has hardened even since then. Chambers was decided by the Court of Appeal in December 2002. The defendants were aged 17, 20 and 19. All had criminal histories but the sentencing Judge considered them of limited relevance. That was a case of unprovoked street violence which resulted in the victim being in a permanent vegetative state. The sentencing Judge imposed terms of 10 years each with automatic declarations of the commission of a serious violent offence. One of the 17 year olds also faced 72 counts of burglary and stealing for which he received two years cumulative upon the head sentence. The Attorney-General appealed against the sentences, all of which were increased to 15 years with, of course, serious violent offence declarations. The Chief Justice, with whom other members of the Court agreed, observed that he considered the 10 years imposed in Fahey as very low. Further, it must be said that in the case of Chambers the disabilities suffered by the victim were even more severe than in Fahey. But even allowing for pleas of guilty, youth, remorse and prospects of rehabilitation, the Court stressed the importance of deterrence and imposed 15 years.
The present applicant is of similarly youthful age. As I have said, he has no criminal history. But the conduct in which he engaged was appalling. It was initiated by the occupants of the car yelling abuse and exacerbated by the complainants. The applicant seems to have been driven, at least in part, by a desire for revenge for damage to his car. The repeated beating and kicking followed by driving over Brodie, not once, but twice, is surely incomprehensible to law abiding members of the community. Fortuitously the effect on the victim, while very serious, has not been as devastating as in Fahey and Solomon or in Chambers.
In all of the circumstances I think the sentencing Judge was correct in accepting that the range was nine to 13 years, and that the sentence imposed of 10 years was indeed toward the lower end of that range. The declaration of the commission of a serious violent offence followed automatically, as in my view it ought to have. I would not interfere.
THE PRESIDENT: I agree.
MUIR J: I agree.
THE PRESIDENT: The application for leave to appeal is refused.