SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  I agree with the reasons of Muir JA and the order he proposes.

2. MUIR JA:  The applicant pleaded guilty to a charge of unlawfully doing grievous bodily harm and was sentenced in the District Court at Gladstone on 20 November 2007 to four years detention with an order that he be released after serving 50 per cent of that term.  The applicant, an indigenous youth, was 15 years and six months old at the time of the offence and was 16 years and nine months at the time of sentencing.

3. His prior criminal history was substantial. It included:

(a)A conviction on 13 January 2004 for common assault;

(b)A conviction on 5 April 2005 on one count of torture;

(c)Convictions on 7 March 2007 for assaults occasioning bodily harm whilst armed in company;

(d) Convictions on 9 May 2007 for assaults occasioning bodily harm.

4. For the torture offence, the applicant was ordered to be detained for two years, to be released from custody after serving 50 per cent of the term ordered to be served. He was released from detention in April 2006 and committed the subject offence on 24 August 2006. He also committed a number of offences after the subject offence, including the assaults of which he was convicted on 7 March and 9 May 2007. On 7 March 2007 he was sentenced to one month’s detention and 12 months probation. On 9 May 2007, he was sentenced to nine months detention, to be served by way of conditional release order.

5. On 24 August 2006 the complainant, an amateur boxer, went to assist a security guard at a Gladstone hotel who was being menaced by the applicant and two others.  The applicant began punching the complainant and a fight ensued.  Those fighting moved outside the hotel.  The fracas appeared to be at an end but, when the complainant was about to walk away, the applicant picked up a brick or a rock and threw it at the complainant, striking him in the face.  The applicant and his two companions then fled.

6. The complainant suffered extensive facial bone fractures “involving the orbital walls, nasal bone, nasal septum, walls of the maxillary sinuses, roof of the maxilla at frontal bone.” Steel plates and screws were inserted into his face. He spent one week in hospital prior to surgery and two weeks after it. A year after the attack he continued to suffer pain and swelling accompanied by tenderness and numbness to his face. His sporting career was terminated. The complainant had been a member of the Australian Amateur Boxing team since 1999. He had won five consecutive Australian titles and had won medals in two Commonwealth Games. His goal was to represent Australia at the Beijing Olympics and use that as a platform for a professional career.

7. The matter proceeded by way of a full hand-up committal, but the guilty plea was entered only on the morning of the trial.

8. The applicant seeks leave to appeal against his sentence on the grounds that it was manifestly excessive. In lucid and well presented written submissions which are a credit to him, the applicant made the following submissions. His incarceration has proved “an eye opener” to him and he has applied himself to a Drug and Alcohol Motivational Programme, as well as a furnishing course. The primary judge did not sufficiently consider the applicant’s background and, in particular, his exposure to domestic violence as a child.

9. The Queen v S ^[1], upon which the respondent relied, was distinguishable in that it concerned a prolonged attack on a defenceless person.  Counsel for the respondent argued that a sentence of up to four and a half years detention was supported by the Queen v S.  In that case, the 15 year old offender was sentenced under the Juvenile Justice Act 1992 (Qld) to six years detention for grievous bodily harm.  He had a lesser prior criminal history than the applicant, and it did not include any offences of violence.  He had not been sentenced to any terms of detention.  In S, the applicant, in company with another smaller child, came upon the prone, inebriated 26 year old male complainant and commenced to kick him repeatedly.  They kicked him in the face when he tried to raise himself from the ground, and then kicked him another five or six times whilst giving indications of enjoyment. 

10. The complainant needed a facial reconstruction which involved extensive surgery. He had been an active sportsman, hopeful of becoming involved in professional football, but his injuries prevented the fulfilment of any such ambition. He became depressed and lost self-confidence. However, there were good prospects that his reconstructed facial region would not give rise to future problems.

11. The President, in her reasons, undertook an extensive review of relevant sentences and concluded that the sentence was outside the appropriate range, having regard to the applicant’s age, the fact that he had not been sentenced to a period of detention before, and was being sentenced under the Juvenile Justice Act 1992 (Qld)^[2].  She considered it relevant also that he had no prior convictions for violence and that all the offences for which he had been convicted occurred within the five month period in which the subject offence occurred^[3].  The President concluded, by reference to these matters and a plea of guilty, the applicant’s co-operation with authorities and his prospects for rehabilitation, that he should be sentenced to four and a half years detention with an order that he be released after serving 50 per cent of that period.  Thomas JA agreed with that sentence observing, “on examination, the upper level of the comparable sentences that counsel have been able to muster imposed on violent juveniles seems to me to be too low.”^[4]  However, he considered it unfair to make the applicant “an example in order to set a new level.”  The Chief Justice also concluded that the sentence of six years was “out of kilter” with the sentencing range disclosed by other cases^[5].  The Chief Justice’s views however departed from those of the other members of the Court in that he considered a sentence of four and a half years inadequate.  He did not find it necessary to decide whether a six year sentence was manifestly excessive.

12. The extent of the injuries inflicted on the complainant in S appeared to me to be greater in extent than the injuries inflicted on the complainant in the subject case and, as the applicant submitted, involved a prolonged and mindless attack on a defenceless person.  However, the consequences of the injuries in this case are arguably greater than in S in that this complainant was an athlete enjoying success at the top of his chosen sport who appeared to have prospects of a professional sporting career.  He was certainly deprived of the opportunity of pursuing his goals.  There is the additional aggravating circumstance that the complainant’s injuries were inflicted by means of a rock or brick.  It is relevant also, that the complainant was injured when attempting to render aid to a security guard being menaced by the applicant and two others.

13. The sentence in S thus supports the sentence imposed by the learned sentencing judge, particularly when regard is had to the applicant’s prior history of violence and the violent and other offending which continued after the subject offence was committed.  The learned sentencing judge, in his careful and detailed sentencing remarks appears to have given due consideration to the applicant’s youth, background, plea of guilty and the provisions of the Juvenile Justice Act 1992 (Qld).  The applicant could not be said to have demonstrated remorse and there are concerns about his prospects of rehabilitation.

14. For these reasons I would dismiss the application for leave to appeal.

15. CHESTERMAN J:  I agree that, for the reasons given by Muir JA, the application for leave to appeal should be refused.  I also agree with his Honour that the applicant’s written submission reflect favourably on his abilities.  They are neatly and legibly written, well expressed and show an understanding of grammar and spelling.  The applicant told us that he had attended school to Grade 10.  He was clearly an attentive student and has benefited from his education.

16. I mention these things on the chance that the applicant may read these reasons and be encouraged by them to improve his situation in life.

17. As Muir JA remarked the applicant is a young man with a serious criminal history for anti-social and violent behaviour. If he continues as he has started he will spend much of his adult life in gaol. He appears a strong, powerfully built young man and his submissions show a degree of intelligence and a capacity to benefit from education. There is no reasons why with those attributes he cannot find gainful employment and lead a satisfying and law abiding life.

18. As I say I hope these remarks will encourage him to make the attempt.