R v Smith[2008] QCA 133

COURT Of APPEAL

MUIR JA

MACKENZIE AJA

JONES J

CA No 4 of 2008

THE QUEEN

 v

DARREN RAYMOND SMITH

TOWNSVILLE

DATE 29/05/2008

JUDGMENT

MUIR JA:  The applicant was convicted on his own plea of guilty in the Supreme Court at Townsville on 10 December 2007 of the offence of grievous bodily harm and sentenced to five years' imprisonment.  It was declared that he had been convicted of a serious violent offence and 549 days of presentence custody was declared as time already served under the sentence.

The complainant was the applicant's de facto wife who at the time was 20 weeks pregnant with the applicant's child.  The applicant was aged 34 years and the complainant was 37. 

On 10 February 2006 a police officer driving past the home of the applicant and the complainant, saw the complainant cowering on the corner of a seat in a bus stop in front of the house.  She had blood on her face and the applicant was standing over her in a threatening manner.

When the police officer approached the bus stop the applicant ran into the house.  The police officer was informed by the complainant that she had been kicked and punched to the head and body by the applicant.  The applicant approached the police officer and was arrested.

The complainant was admitted to hospital writhing in pain.  Bruises covered her entire body.  She had an obviously displaced nose which was swollen and appeared to be broken.  An ultrasound examination revealed a large haematoma to her right kidney and free fluid about the kidney.  A laparotomy revealed extensive bruising in the cavity covering her abdomen, a bruised kidney, necrosis of part of the digestive tract and pancreatic malfunction.

The complainant was critically ill between 12 February and 17 February and gave birth on 24 February 2006 to a child who died shortly afterwards.

In an operation on 27 February part of the complainant's pancreas and all of her spleen were removed.  The surgery disclosed complete disruption of the pancreatic neck, distal pancreatic necrosis, and a large amount of infected fibrinous material.  The complainant required weeks of jejunal feeding to maintain her nutrition and antibiotics to treat numerous infections.

After making a slow recovery she was discharged on 26 April 2006.  She will require medication for the remainder of her life and is more susceptible to infections.  It is probable that she will require hospitalisation from time to time as a result of the abdominal problems.  Shunts in her head to relieve a condition of fluid on the brain which had been inserted well prior to the assault make her more susceptible to infections.

The applicant had been convicted of breaching domestic violence orders in respect of the complainant on 19 October 2002 and 4 January 2003, and the subject offence was committed by the applicant in breach of a domestic violence order.

On the day of the offence the applicant pleaded guilty to breach of the order and was convicted and sentenced to four months' imprisonment.  He had been convicted in December 2002 of wilful damage to property, on 29 August 2005 of committing a public nuisance, and on 10 February 2006 of breach of a domestic violence order and obstructing a police officer.

The applicant seeks leave to appeal against sentence on grounds that the sentence was manifestly excessive.  It is not clear whether the applicant relies on the primary Judge taking into account the fact that the complainant was 20 weeks pregnant at the time of the assault.

The submission in paragraph 11.1 of the outline of submissions is implicitly that the sentence, because of its severity, must have been arrived at after taking into account the death of the complainant's child.

On the basis of comparable authorities and in particular, R v Collins [2005] QCA 172, it was submitted that the appropriate range for the subject offence was four to five years.  It was further submitted that the sentencing Judge erred in making the serious violent offender declaration.

With reference to R v McDougall and Collas [2007] 2 Qd R 87, and to a decision of the Higher Court in Markarian v R (2005) 215 ALR 213, it was submitted that the overall term of imprisonment to be imposed if a declaration was to be made must have regard to the making of the declaration or the failure to make the declaration. 

It was further submitted that the primary Judge failed to take the "integrated" approach required by the authorities and took a "two-step" process.  In particular it is contended that no consideration was given to the overall term of imprisonment that was to be imposed having regard to the making or not making of the declaration.  That, it is submitted, may be inferred from the five year term of the sentence which, when coupled with the declaration, results in a sentence well outside the appropriate sentencing range.

I do not accept that the primary Judge, in making the serious violent offender declaration, adopted a two-stage process.  In the course of submissions his Honour remarked that that was not the course which should be followed.  He said of the making of such a declaration, "is all part and parcel of an overall sentence." 

In his reasons, when he came to deal with the declaration, he made it plain that this was a matter to which he had previously adverted.  He said, "I have had to consider the question of whether a declaration that this is a serious violent offence should be made."

In support of the submission that the sentence is manifestly excessive, particular reliance was placed by counsel for the applicant on R v Collins [2005] QCA 172.  In that case an application for leave to appeal against a sentence of four years' imprisonment suspended after two years with an operational period of five years imposed for a count of grievous bodily harm was refused.

The applicant resident of an Aboriginal community was between 32 and 34 years of age at the time of sentencing for a number of offences of violence including an offence of grievous bodily harm to his de facto wife.  That offence was committed in breach of a domestic violence order.  The circumstances of the assault were unknown and the prosecution case was a circumstantial one.

The complainant was admitted to hospital suffering from a subdural haematoma caused by a blow or blows to the right temporal region.  She did not recall the incident causing the injury.  The evidence suggested that the applicant was drunk at the time of the incident.  There was evidence of regular maltreatment of the complainant by the applicant and an admission by the applicant of "flogging" the complainant.  The complainant appears to have made a full recovery.

The facts of Collins are thus quite distinguishable from those under consideration here.  In Collins the applicant had served 10 months of pre-sentence custody which could not be made the subject of a declaration under the Penalties and Sentences Act 1992 (Qld), but the sentencing Judge indicated that he had taken this into account.

In its reasons, the Court commented that reference to other Court of Appeal decisions suggest that, "a sentence of about five years' imprisonment was within the appropriate range for an offence of this type of grievous bodily harm."  The Court remarked that it was difficult to see how a less severe sentence could have been imposed.

Counsel for the respondent relied on the decisions of this Court in R v King and Morgan; ex parte A-G [2002] QCA 376; and the R v Mitchell [2006] QCA 240.

In Mitchell the Court dismissed an application for leave to appeal against a sentence of seven years' imprisonment with a serious violent offence declaration imposed after a plea of guilty to a count of unlawfully doing grievous bodily harm with intent.

The applicant was 51 years of age and had a lengthy criminal history which included offences of violence.  The complainant was a 45 year old woman.  She was set upon by the applicant, who was drunk, with an iron bar after she rejected his sexual overtures.  The applicant had struck at the complainant 12 to 15 times with the bar but had not managed to hit her on every occasion.  He also kicked and punched her in the course of the incident which took place in the applicant's unit.

The complainant sustained a laceration to the left elbow, compound fracture of that elbow, lacerations to her scalp, laceration to her shins, bruising around her left eye and right shoulder, and the dislocation of a joint.  She sustained a toe injury which continues to cause her problems with her balance.

At the time of sentencing she continued to experience pain from her elbow and shoulder injuries.  It was observed in the reasons of Phillipides J, with whom the other members of the Court agreed, that the sentence, although a heavy one, was not outside the sentencing discretion even bearing in mind the applicant's plea.

King was another Attorney-General's appeal against a sentence of six years' imprisonment imposed on each of the respondents for offences of grievous bodily harm after pleas of guilty. 

There were two applicants, King and Morgan.  King was 28 years of age and had an extensive criminal history, including crimes of violence.  Morgan was 23.  He also had an extensive prior criminal history for drug and dishonesty offences but no prior convictions for violent offences. 

The complainant was age 40.  She was severely beaten by the respondents with metal torches and a small axe or hammer.  They threatened that she would be killed and left unconscious and naked in a car beside a public road. 

The complainant's injuries required suturing and an operation to repair damage done to the tendons in her leg.  Her ear was partially severed and she was left with cosmetic disfigurements.  Three teeth needed replacing and the complainant continued to endure psychological problems.

Prior to the incident the complainant had met the respondents and had consumed alcohol with them.  They argued over an ATM card.  King became angry and punched the complainant, who was then forced into a car by the respondents.  When travelling in the car she was punched about 20 times in the face.  The beating described earlier occurred after the car stopped, having run out of petrol.  Counsel for the applicant points out that the case involved an abduction and also a prolonged course of conduct.

After reviewing comparable sentences, the Chief Justice, with whom the other members of the Court agreed, expressed the view that the range for the subject offences extended beyond substantially six years with a declaration and that, but for the pleas of guilty each respondent should have been imprisoned for at least eight years after all mitigating features had been taken into account and with a declaration.

Having regard to the pleas of guilty and the consideration that the Court was dealing with an Attorney-General's appeal, the Chief Justice concluded that the six year sentence should stand, but there should be in each case a declaration that the offender had been convicted of a serious violent offence.  He concluded with the observation that, "The six years with a declaration for offending of this gravity must hereafter, in my respectful view, be seen as moderate." 

The attack on the complainant was prolonged and brutish.  It was no doubt intended to inflict extensive physical and emotional injury.  The intention was fulfilled.  The applicant's conduct was cowardly and callous in the extreme and merits condign punishment.

The fact that the complainant suffered from significant physical disabilities before the incident and was pregnant at the time of the incident made the applicant's conduct all the more abhorrent.  The sentence imposed as the above authorities indicate was not manifestly excessive.  I would dismiss the application for leave to appeal.

MACKENZIE AJA: And I agree.

JONES J:  I agree.

MUIR JA:  The order of the Court is that the application for leave to appeal be dismissed.