R v Wing[2007] QCA 138

SUPREME COURT OF QUEENSLAND

THE CHIEF JUSTICE:  On the 25th of September 2005, the applicant committed four offences to which he pleaded guilty in February 2007:

the dangerous operation of a motor vehicle for which he was sentenced to 12 months imprisonment;

going armed in public so as to cause fear (three months imprisonment);

doing grievous bodily harm (four and a-half years imprisonment with parole eligibility set one and a-half years from the commencement of the sentence); and the unlawful possession of a weapon (two months imprisonment). 

All those terms are to be served concurrently.  In addition, he was disqualified from holding or obtaining a driver's licence for five years.

At the time of the offences, the applicant was 23 years old.  He had no prior criminal convictions.  He had a minor prior traffic history and following his being charged he accumulated two speeding convictions and a conviction for failing to produce his licence as required. 

He seeks leave to appeal on the ground the sentence of four and a-half years' imprisonment with parole after 18 months was manifestly excessive, and he also challenges the five-year licence disqualification.

The circumstances of the offences were these.  With two friends as passengers, the applicant drove his car to Collinsville.  There was an old single-barrel 12-gauge shotgun in the car to be available to shoot wallabies or pigs were they to see any on the way. 

At a hotel in Collinsville between 9 o'clock at night and 1.30 the following morning, the applicant consumed approximately eight rum and cokes.  He then left, went to his car, and proceeded to execute, in the vicinity of the hotel, what some people call "burn-outs", "fish-tails" and "circles", instances of dangerous driving in which the driver endangers himself, his vehicle, and any people or property in his path, as well as making a foolish spectacle of himself.  That was the dangerous driving involved in count 1. 

It was not suggested that any person was directly endangered by it, although obviously there was the potential for injury, if not worse, to person and damage to property.

Patrons at the hotel spilled out to watch.  One of them hurled a beer bottle at the car.  The applicant stopped and demanded to know who had done that.  The person responsible came forward.  The applicant took the shotgun from behind the seat and pointed it at the ground while outside the car, following which he returned to the driver's seat.  That was count 2.

It was not suggested the applicant pointed the weapon towards anyone.

The person who had thrown the bottle at the car told others what had just happened.  In the meantime, the applicant had driven off and parked outside another hotel with his vehicle facing in the direction of the former hotel. 

The victim of the grievous bodily harm involved in count 3, together with two men, approached the applicant's vehicle.  The complainant was walking behind the two men.  Nearing the vehicle, the men noticed the barrel of the gun poking out of the driver's window.  The applicant had his finger on the trigger-guard.  One of the men sought to knock the barrel of the gun out of the way, and it was then that the shotgun discharged.

The complainant was struck by pellets in her thighs.  The injuries required surgery and skin graphs.  She is left with substantial scarring on the inner side of both legs. 

One of the men wrenched the weapon from the applicant's grasp and attempted to hit him with it, but succeeded only in damaging the windscreen and doorframe. 

The applicant fled the scene, surrendering himself later that day to police officers.  He claimed to the police that he had been in fear for his own safety and produced the gun only to frighten people off.

The learned Judge characterised the applicant's behaviour as grossly negligent and reckless, although not intentional.  He concluded the weapon discharged in the course of others attempting to disarm the applicant. 

The Judge said that,

"While it was unclear whether the applicant knew the weapon was loaded at the time, the applicant should have taken steps to determine whether or not it was in that condition."

The Judge rejected the applicant's claim that he took the weapon out of fear that others might hurt him.  His Honour said,

"I reject your claim that you took up the weapon out of fear that others might harm you.  You could have driven away."

Mr East who appears for the applicant submitted it was wrong of his Honour to reject the applicant's claim "entirely".  No doubt there was evidence of some antagonism on the part of some of the patrons towards the applicant.  But it was perfectly open for the Judge to reject the applicant's claim to have taken up the weapon out of fear that others might harm him, simply on the basis that the applicant, if in fear for his own safety, had the means of leaving the scene quickly by driving off in his car.

The Judge pointed to a number of features:  the permanent gross disfigurement to the victim; the potential danger involved in the applicant's pointing the loaded firearm in the direction of the bystanders; his "grossly negligent and reckless" behaviour in respect of the vehicle and the weapon; and his production of the firearm in circumstances where there was a real risk of injury, even death to others. 

Counsel for the applicant relied on Amituanai (1995) 78 Australian Criminal Reports 588, for a submission that the sentence of four and a-half years with parole after 18 months should be reduced to three years with parole after nine to 12 months.

While the resulting disability to the victim of Amituanai, who was sentenced to three years imprisonment with parole after nine months, was considerably more serious than in this case,  Amituanai's offence involved a single kick to the head, no weapon was involved, and the inflicting of the injury was not surrounded by the range of other criminal activity involved here, extending as it did over a period. 

Also, a range of people were here placed at considerable risk by the applicant's behaviour, especially involving the loaded firearm. 

Further, Amituanai should not be approached on the basis that the sentence imposed there delineates some sort of definitive range for this sort of offending.  Indeed, as observed by the Court of Appeal in that case, there is a wide range of penalty applicable for the doing of grievous bodily harm.

Similar observations may be made in relation to Berryman [2005] QCA 471, another case referred to by Mr East, where an offender who smashed an unbroken glass into the complainant's face causing substantial scarring was sentenced to three years imprisonment suspended after 12 months.

The inflicting of the grievous bodily harm in this case, involving the use of the gun, was in the context of a range of criminal activity, which endangered human life on a broader scale.

Mr East also referred to Blackett CA 227 of 1990.  The age of that decision, in the context of violent crime causing substantial injury, renders it of doubtful currency now, with the changes in attitude which have occurred in the community and the Court over the last 15 years in relation to responses to such crime even when based in negligence, crime where serious injury results from the discharge of firearms in public in particular. 

Mr East also referred to Deans [2000] QCA 516, a single instance of wounding where the insult was offered to but one person, different in character allowing for the broader sweep of the instant offending and with injuries substantially less in that case than here.

In the present situation, more help may be gathered from Bryan (2003) 137 Australian Criminal Reports 489, which involved the inflicting of grievous bodily harm through the use of a pocketknife, where a sentence of six years imprisonment was imposed on appeal and reference was made to a minimum appropriate sentence of the order of six to seven years.  That was a case involving the deliberate or intentional use of a weapon rather than as here, negligent use. 

But the sentence imposed in this case, four and a-half years with parole after 18 months, adequately reflected that point of distinction.

In his judgment in Bryan, Justice Williams referred to the case of Hoogsaad [2001] QCA 27 where the Court of Appeal upheld a five-year term imposed for grievous bodily harm.  As his Honour said:

"Hoogsaad involved a fight between a number of persons who had been drinking at a hotel.  A crowbar was used to strike the complainant who was knocked unconscious and suffered significant disabilities." 

The sentence imposed here was not manifestly excessive. 

The applicant's offending involved five of the ingredients for large-scale disaster:  the consumption of a substantial amount of alcohol; driving, fuelled by the alcohol, in outlandish fashion in a public place where absolute loss of control with danger to life was a distinct possibility; the resort to the gun which he should have known was loaded; the proximity of a number of people, unsurprisingly attracted by his bizarre behaviour; and the actual result, serious irreparable damage to his victim. 

To require the applicant to serve 18 months in gaol for all of that and be supervised for the following three years was no more than appropriate.

As to the licence disqualification, counsel for the applicant emphasised there was no direct risk to any road user and there was a compelling inference the applicant was intoxicated to some extent.  It is hard to see how the latter circumstance could have any ameliorating affect.  And the point in the response to the former is that there was potential risk to many bystanders. 

Further, while on bail for the offence of dangerous operation of the motor vehicle in this instance, the applicant exceeded the speed limit on two occasions.  He committed these offences on the 25th of September 2005 and the first subsequent speeding offence as soon thereafter as 21 October 2005 with the second on 1 February 2006. He thereby demonstrated an irresponsible even cavalier attitude towards the discharge of his duty as a licence holder.  In light both of his subsequent behaviour, and as well, the circumstances of the offence of dangerous driving here, a five-year disqualification cannot be said to have been manifestly excessive.

We were referred to possible prejudice to his employment as a tyre-fitter, but that is something subsidiary to the protection of the public.  The application should be refused.

KEANE J A:  I agree.

LYONS J:  I agree.

THE CHIEF JUSTICE:  The application is refused.