R v O'Dell[2006] QCA 8

SUPREME COURT OF QUEENSLAND

KEANE JA:  On 27 September 2005 the applicant was sentenced, following his plea of guilty, to one count of wilfully causing damage to property and one count of causing grievous bodily harm.  In respect of the offence of grievous bodily harm he was sentenced to two years imprisonment suspended after 12 months with an operational period of three years.  He was sentenced to six months imprisonment in respect of the wilful damage offence.  The sentences were to be served concurrently.

The applicant seeks leave to appeal against the sentence in respect of the offence of grievous bodily harm on the ground that it is manifestly excessive by reason of the length of time which the applicant is obliged to serve in actual custody before the sentence is suspended.  In this regard it is contended that the sentence should be suspended after the applicant has served eight months in custody.

As to the circumstances of the offence, the complainant and the applicant lived with their families in adjoining units of a duplex in Dalby.  There was a longstanding history of antagonism between the families.  At some time after 8 p.m. on 30 September 2004, the complainant was alerted to the fact that the applicant was kicking fence palings off the fence between the two units.  The complainant approached the applicant who threatened him, saying "I'm going to kill you.  Step over my side."

The applicant then put part of his body on the complainant's side of the fence and struck him with a fence paling on the hand and then on the right side of his face.  The complainant suffered a serious injury to his right eye for which he underwent surgery in Brisbane.  He has lost approximately 90 per cent of the vision in that eye.

When questioned by the police the applicant initially denied responsibility for the attack on the complainant.  The applicant had been drinking before the incident occurred.  The assault seems to have been sparked by the applicant's perception that he had been abused by the complainant as he returned home.  The complainant and his brother had, apparently, assaulted the applicant some two weeks before the incident.  The applicant suffered the loss of two front teeth in this incident and the applicant's sense of grievance in this regard seems also to have played a part in triggering the applicant's violent outburst.

Of course, recourse to violent self-help is not to be encouraged or excused or in any way condoned.

As to the applicant's circumstances, he was born on 14 April 1966.  He was thus 38 years old at the date of the offences.  The applicant was born and raised in New South Wales and moved to Dalby in Queensland several years ago.  Since living in Dalby the applicant has been in regular employment.  He is the father of young children. 

The applicant has a substantial criminal history in New South Wales which commenced in 1981 when he was sentenced to 12 months imprisonment for property offences.  He was convicted of offences involving personal violence in 1989, 1990, 1991, 1992, 1998 and 2001.  Since coming to Queensland he had not been convicted of any further offences.

The learned sentencing judge accepted that the applicant regretted the injury which he inflicted upon the complainant and that he had not intended to cause that injury.  He also gave the applicant "credit for his plea of guilty".  Because of the applicant's good record since coming to Queensland the learned sentencing judge was prepared to give the applicant the benefit of a suspended sentence.  His Honour was optimistic that the applicant would not re-offend during the operational term of that suspended sentence.

In my respectful opinion the applicant is unable to identify any decision of this Court which suggests that the imposition of a sentence involving actual imprisonment for 12 months was outside the range of a sound sentencing discretion in a case such as the present involving, as it does, a very serious injury brutally inflicted by a man with a stubborn history of personal violence.

R v Hudson; ex parte Attorney-General [2002] QCA 239 upon which the applicant seeks to rely was not a case where the complainant was left with an injury as serious as the present.  In truth the decision in that case affords substantial support to the sentence imposed in this case. 

The applicant also seeks to rely upon R v Greig; ex parte Attorney-General [2000] QCA 276.  That was a case, though, where the defendant was a young man with no previous convictions and the injury inflicted was somewhat less serious.  Even in that case the offender was required to serve six months of a two-year sentence. 

The applicant also seeks to rely on R v O'Grady; ex parte Attorney-General [2003] QCA 137.  That was, of course, an Attorney-General's appeal and it is important to note that the offender had no previous criminal history and did not use a weapon in inflicting the injuries, the subject of the charge.

Having regard to the serious injury inflicted on the complainant, the use of a weapon to inflict that injury and the applicant's substantial record of personal violence the sentence which was imposed was distinctly moderate reflecting, as it did, credit for the applicant's plea of guilty and the learned sentencing judge's optimistic view of the applicant's prospects of rehabilitation. 

I conclude that this sentence was not manifestly excessive.  I will dismiss the application for leave to appeal against sentence.

THE PRESIDENT:  I agree.

MUIR J:  I agree.

THE PRESIDENT:  The application is dismissed.