R v Leapai[2005] QCA 449

SUPREME COURT OF QUEENSLAND

WHITE J:  The applicant for leave to appeal against sentence pleaded guilty in the District Court at Beenleigh on the 7th of October 2005 to one count of doing grievous bodily harm at Rogue's Nightclub at Underwood on the 14th of September 2002.  He was jointly charged with another but it appears that that person is yet to be dealt with.

The applicant was sentenced on the 10th of October 2005 to two years imprisonment to be suspended after six months, with an operational period of three years.  The applicant contends that in light of his age, no previous criminal convictions and a very high degree of rehabilitation in the intervening period between offending and sentence, the learned sentencing Judge ought to have wholly suspended the operation of the sentence.  In other words, the submission is that his Honour's sentencing discretion miscarried in that he failed to give sufficient weight to the mitigating factors.  There is no argument by Mr Moynihan, who appeared on behalf of the applicant, that the head sentence of two years was not within range. 

The applicant was born on the 16th of October 1979 and was aged 22 when the offence was committed and almost 26 when he was sentenced.  The delay has not been satisfactorily explained.  Counsel before us have had no more information than was given below but in broad terms it seems that police renewed their investigations in early 2004 and contacted the applicant thereafter.  He engaged in an interview and was then charged and a full hand up committal was held in June 2004.  It was not until October 2005 that the matter came on for sentence.

The events giving rise to the charge occurred at about 2.00 a.m. on the 14th of September 2002.  The complainant, then aged 30, was employed by a security services company at the nightclub.  He commenced his shift at 1.00 a.m. and was told to watch a group which included the applicant.  The applicant was refused service at the bar because he appeared intoxicated.  Shortly after 2.00 a.m. the applicant left the club and was refused re-entry a short time later.  He complained that he'd just purchased a jug of beer and he was reimbursed the money by another guard. 

Shortly afterwards the club video surveillance tape captured the applicant throwing a punch towards the security guard, about which no complaint has been made.  A few minutes later the co-accused walked out of the club and threw punches towards the complainant, who was looking in the opposite direction.  The applicant then started punching the complainant and what the Prosecutor below described as "a brawl" ensued as other security guards came to their colleague's assistance.

During this fight the complainant took a punch to his left eye which is the subject of the grievous bodily harm charge.  Equipment was smashed in the course of the melee.  The complainant sustained a fracture to the floor of the left orbit with attendant bruising and loss of blood.  He underwent surgery and had a plastic sheet inserted into the eye socket.  He suffered loss of feeling and had a tingling sensation down the left side of his face due to nerve damage and has been left some numbness in his cheek and upper lip and an occasional twitch in his left lower eyelid.  He lost some wages and incurred other costs of about $700. 

The applicant has little recollection of the detail of the assault because he was grossly intoxicated and because police did not interview him until more than a year and a half after the event.  It is matters personal to the applicant which have, in the intervening period, caused his counsel below and Mr Moynihan here, to submit that a wholly suspended sentence ought to have been imposed.

His Honour was provided with some 10 references.  At the time of sentence the applicant had three young daughters with his partner, who was expecting a fourth and at the time of this appeal that child has been born.  He was in full-time employment as a packer/driver with Bris Aluminium Pty Limited of Slacks Creek and had been so employed since May 2004. 

Encouraged by his father, a pastor in the Samoan Church, he commenced addressing his problems, including a serious alcohol problem, not long after these events, it seems.

Dr Ian Hazell, his and his family's general practitioner, wrote in January this year that the applicant had commenced an alcohol abstinence program three years earlier.  The applicant has been sober since. He is a regular church attender. 

He has channelled his athletic prowess into boxing and has achieved considerable success as an amateur and is considering a professional career.  The applicant has devoted time to helping disadvantaged youth in the area.  A passage from the reference from the programs manager at Boys Town gives a flavour of the many references which were tendered below on the applicant's behalf. 

"Elise has voluntarily offered his time to speak with young people and has willingly shared his personal story which is one of an intensive struggle to lead a successful and productive life, having suffered many set backs.  Elise is known to local young people, not only as a successful boxer but someone who has turned his life around to become a role model who is admired for his caring and positive nature.  Having personally witnessed Elise's determination to help young people and to be a role model to them, I have no hesitation in providing this reference for him."

The applicant wrote a letter of apology to the complainant dated the day of the sentence hearing and through his counsel was prepared to make some monetary compensation.  Mr Moynihan particularly relies on R v O'Grady; ex parte Attorney-General (Qld) (2003) 138 A Crim R 273.  There a 28 year old, heavily intoxicated and with no prior convictions, attacked two men walking in the street after midnight after they had left a restaurant with their wives.  He was not in company.  He pleaded guilty to one count of assault occasioning bodily harm in respect of one complainant and one count of doing grievous bodily harm.  The first complainant suffered a depressed fracture of the left sinus.  The second was knocked unconscious and suffered a fracture near the right eye which required surgery.

On an Attorney-General's appeal against the leniency of a 12 month intensive correction order, the Court accepted that two years imprisonment with an early suspension to take account of mitigating factors was appropriate.  However the majority took the view that the exemplary performance of two months of the order by the respondent and in light of the moderating principles applicable to Attorney-Generals appeals, a two year term of imprisonment with an operational period of three years should be wholly suspended.  The Chief Justice who dissented would have required the respondent to serve six months actual imprisonment. 

In R v Tupou; ex parte A-G (Qld) [2005] QCA 179, The President observed that the two year concession by the Attorney-General in O'Grady may have been overly favourable to the offender and commented that a sole aggressor was rather different from a drunken group of antagonists.  The situation which had prevailed in Tupou.

Accepting the observations of Mr Justice Chesterman in D'Arcy to which Mr Moynihan drew the Court's attention, (2001) 122 A Crim R 268 at 299, that positive contributions made by an offender to the general welfare of the community are indicative of rehabilitation and thus lessen the need to protect society from the offender, nonetheless in offences of violence in a public place of entertainment in a group must be seen to be deplored.  Such alcohol or drug fuelled violence is a disturbing feature of our urban society today.  The Courts cannot be seen to be unduly lenient. 

This applicant has clearly reformed and become a positively contributing member of the community but the complainant was doing a difficult job and he and those in similar positions who are acting lawfully need to be protected from thuggish behaviour.  It may be that had the learned sentencing Judge imposed a wholly suspended sentence an appeal by the Attorney-General would not have succeeded as Mr Martin for the Crown concedes.  But in my view the applicant is unable to demonstrate that in imposing the sentence that he did the learned sentencing Judge’s sentencing discretion miscarried and I would refuse the application.

THE PRESIDENT:  I agree.

CHESTERMAN J:  I agree.  I accept Mr Moynihan's submission that evidence of rehabilitation of an offender is an important factor to take into account in the sentencing process.  I would accept that it is important in cases of this kind, as in cases of the kind Mr Martin identified, that is, drug offences. There is here impressive evidence of reformation by the applicant and Justice White has referred to the evidence.

I adhere to the opinion I expressed in R v D'Arcy (2001) 122 A Crim R 268 at 299.  However in this case it seems to me that the District Court Judge properly exercised the sentencing discretion.  He took into account the evidence of the applicant's rehabilitation and gave it appropriate weight.  I agree that the application should be refused.

THE PRESIDENT:  The order is the application is refused.