R v Ronkovich[2007] QCA 193

SUPREME COURT OF QUEENSLAND 

[1] JERRARD JA: I agree with the reasons and orders proposed by Atkinson J.   I add only that I would express the reason for re-sentencing as in R v Daly [2004] QCA 385 at [6], [9], and [31].  That is that the incorrect assumption Mr Ronkovich would be considered for parole on the eligibility date fixed by the judge means the sentencing discretion miscarried, and some other sentence should have been passed.  The problem is simply that too many other prisoners are listed to do the courses Mr Ronkovich is required to do before he will be considered for parole.

[2]  WHITE J: I have read the reasons of Atkinson J and agree with them and with the orders which she proposes.

[3]  ATKINSON J: The applicant seeks leave to appeal a sentence imposed upon him in the District Court on 7 February 2007 of three and a half years imprisonment with the date of eligibility for parole being fixed at 6 December 2007.  That sentence was imposed on each of two counts to which the applicant pleaded guilty: one count of grievous bodily harm and one count of sexual assault.  The application for leave to appeal does not set out a ground of appeal with regard to the sentence but the grounds of appeal can be inferred from the applicant’s written submissions.  Essentially an applicant can only be successful in obtaining leave to appeal his or her sentence if it can be shown that there was an error in the exercise of the sentencing discretion so that the discretion miscarried or that the sentence imposed was manifestly excessive.

[4] The circumstances of the offences were that the applicant and the complainant met for the first time at a hotel at Alexandra Hills.  The complainant was then 26 years old.  They returned together to the caravan where the applicant was living and the complainant smoked a marijuana joint that had been packed by the applicant.  After that she felt unwell and wanted to leave and return to Alexandra Hills.

[5] The applicant commenced driving her home but then turned the wrong way.  She became anxious when his car took a wrong turn.  The complainant was talking on her mobile phone to another person when the applicant pulled the car over, grabbed the phone and threw it to the floor.  He then punched her in the face.  That punch caused grievous bodily harm.  When her telephone rang the applicant told the complainant “If you answer that I’ll kill you” although the sentencing judge referred to the fact that he later said he would not kill her.  Count 2 was committed when the applicant told the complainant to remove her pants, which she did because she was afraid, and the applicant fondled her vagina.

[6] The complainant blacked out and when she awoke the applicant was driving the vehicle fast.  She grabbed at the steering wheel and the car crashed.  A fire in the car caused her severe burns.  The applicant was located by the police at his parent’s property on the following day hiding under a bed.

[7] When the applicant was interviewed by the police he said that he had been drinking heavily and estimated he had had about 20 rum and colas.  He admitted to punching the complainant and fondling her.  The punching caused very significant injuries which were referred to by his Honour in the sentencing remarks.  A medical report tendered on the sentence showed that she had suffered bilateral peri-orbital oedema, abrasions to the lips, and a swollen face.  A CT scan demonstrated that she had a minimally displaced nasal fracture and a right orbital floor and medial wall fracture (eye socket fractures).  She has had persistent double vision which led to an operation to repair the right orbital floor fracture.  She continues to suffer numbness as a result of the right orbital floor fracture which is expected to heal but it is unknown whether or not she will regain normal vision free of double vision at the extremes of her gaze.  Dr. Paton was of the opinion that her facial injuries were consistent with severe blows from a blunt object using moderate force.

[8] The applicant was not responsible for the burns suffered by the complainant so was not sentenced in respect of that injury.

[9] The learned sentencing judge accepted that there was an early plea of guilty given that the scientific evidence as to the cause of the fire only became available on 27 January 2007.

[10]  The applicant had served a period of 139 days of pre-sentence custody from 6 August 2004 to 22 December 2004 which could not be declared as time served under the sentence because the period on remand related not only to the offences for which he was being sentenced in the District Court but also to other offences for which he had already been sentenced.  His Honour said that he would adjust the sentence to take account of that period of pre-sentence custody.

[11]  His Honour also said that he would make a “modest allowance” for a period during which he was “under house arrest”.  This was in fact a period spent on bail but with onerous conditions.  His Honour was of the opinion that it was not very significant as the applicant was on bail rather than in custody.

[12]  His Honour referred in detail to the personal circumstances of the applicant and his criminal history.  The prosecutor said that the appropriate sentence was four years but his Honour accepted the range suggested by the applicant’s counsel of between three and four years imprisonment.  The applicant’s counsel submitted that his client should be sentenced towards the bottom end of that range allowing for credit for the four and a half months he spent in custody and the 12 months spent on bail with onerous conditions.  The applicant’s counsel therefore submitted that a sentence of three years suspended after four months would be appropriate.

[13]  His Honour sentenced in the middle of the suggested range, that is a head sentence of three and a half years imprisonment.  Taking into account the period spent in pre-sentence custody which could not be declared as time served under the sentence, a modest allowance for the period on bail with onerous conditions, the need for supervision on parole given the nature of the offences and the applicant’s plea of guilty, his Honour ameliorated that sentence by fixing 6 December 2007 (that is 10 months after the date of sentencing) as the date upon which the applicant would become eligible for parole.

[14]  That sentence is consistent with sentences imposed for offences of this type: see R v Dillon; ex parte A-G (Qld)[1] where the Court of Appeal reviewed cases of grievous bodily harm.  In particular, in this case, the offences involved punching to the face of a woman who was in the applicant’s car and therefore unable to escape his attack which caused facial injuries consistent with severe blows from a blunt object (the applicant’s fist) using moderate force, together with a sexual assault.  She was caused serious and perhaps permanent injury, as well as the humiliation and gross intrusion of a sexual assault.  There is a clear need for sentencing courts to deter such behaviour through appropriate sentencing.

[15]  It could not be said that the sentence was manifestly excessive.

[16]  Did the sentencing discretion miscarry?

The applicant made a number of complaints in his written submissions about the exercise of sentencing discretion, which have no substance:

• he complained that he was not given credit for his guilty plea when he clearly was;
• he complained that he did not receive the sentence he expected to receive on the basis of advice from his legal advisers.  This is not a ground of appeal that can suggest that the sentencing discretion miscarried;
• he asserted that the judge erred by fixing his parole eligibility date but his Honour acted in accordance with his powers under s 160D of the Penalties and Sentences Act 1992 (Qld) (“PSA”) in fixing an eligibility date;
• he complained of factual inaccuracies in the prosecutor’s submissions but those facts were not disputed by his experienced defence counsel; and
• he reiterated all the personal factors in his favour but those factors, including his employment prospects and the pregnancy of the partner, were referred to by the sentencing judge.

[17]  In oral submissions he complained that he has been told by the correctional authorities that his parole eligibility date has been cancelled by s 160E of the PSA.  That cannot be the case because that section deals with circumstances in which an existing parole release date or parole eligibility date is cancelled when an offender is sentenced for another offence or the court fixes another parole release date or parole eligibility date.  That is not the case here.  This does not suggest that the sentencing discretion miscarried.

[18]  The applicant also complained that he has been told by the correctional authorities that he cannot be released on parole, or at least that they will not recommend his release on parole on his eligibility date, because he will not have completed the courses they require of him before he can be released on parole.

[19]  If this is true, and the court’s experience of the difficulty correctional authorities have in providing sufficient places in courses for prisoners suggests that it might well be, one important part of the sentencing discretion in this case has been frustrated.  This is because the ameliorating order given by the judge to take account of the applicant’s guilty plea in accordance with s 13 of the PSA and personal factors in his favour, is unable to be given effect.  In R v Hood[2] this court held:

“There is a foreseeable risk that effect will not be given to the recommendation, for a reason beyond Mr Hood’s control[3] and that accordingly the recommendation does not in reality qualify as a reduction of sentence, contrary to the assumption of the sentencing judge.  In R v Mackenzie[4] this Court held the error in the assumption enlivened the power under s 188(1)(c) of the Act; in R v Daly[5] that the error meant the sentencing discretion had miscarried, and[6] that it meant some other sentence was warranted in law and should have been passed.”

[20]  In my view, this is a case falling within s 188(1)(c) of the PSA which provides that:

“188Court may reopen sentencing proceedings

(1)If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal –

(c)imposed a sentence decided on a clear factual error of substance;

the court, whether or not differently constituted, may reopen the proceeding.”

[21]  The sentence was decided on a clear factual error of substance, that is, that the date set as the parole eligibility date was the date on which the applicant could and would reasonably be considered for release on parole unless his behaviour after he was sentenced or new material that came to the attention of those considering his application for parole, otherwise warranted.[7]  The sentencing discretion therefore miscarried.

[22]  The learned sentencing judge intended that the applicant should be able to be released from custody on 6 December 2007 and thereafter be subject to supervision.  That can best and, indeed, is only likely to be achieved by imposing a sentence of three and a half years imprisonment on the count of grievous bodily harm suspended after he has served 10 months, i.e. on 6 December 2007, and imposing a concurrent period of imprisonment on the count of sexual assault for a similar period to the time which he will spend in prison before his sentence is suspended followed by probation.[8]

[23]  I would grant the application for leave to appeal and allow the appeal.  The sentence of three and a half years imprisonment for grievous bodily harm (count 1) should be retained.  The sentence should otherwise be varied so that the sentence of three and a half years imprisonment on count 1 be suspended after the applicant has served 10 months (i.e. 6 December 2007) with an operational period of four years.  The sentence imposed on count 2 should be replaced with a sentence of 10 months followed by a period of probation of two years.

Orders

1. Application for leave to appeal granted.
2. Appeal against sentence allowed.
3. Original sentence set aside and in lieu thereof:

1. Vary the sentence of three and a half years imprisonment on count 1 to be suspended after 10 months with an operational period of four years.
2. Substitute the sentence of three and a half years imprisonment on count 2 with a sentence of 10 months imprisonment followed by a probation order of two years.