R v Hilton[2009] QCA 12

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Keane JA's reasons.  Both the application for leave to appeal against sentence and the application to adduce further evidence should be refused. 

[2] As this was an offence of violence resulting in physical harm to the complainant, the sentencing court must have regard primarily to the matters set out in s 9(4) Penalties and Sentences Act 1992 (Qld).  The principles set out in s 9(2)(a) (that imprisonment should be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable) do not apply: see s 9(3).  A consideration of the sentencing principles in s 9(4), in the context of the circumstances of this case as set out by Keane JA, plainly demonstrates that the present sentence is not manifestly excessive.

[3] In attempting to demonstrate the excessive nature of the sentence, counsel for the applicant relied on R v Walsh, Sayer & Thompson; ex parte A-G[1] and R v Yanner & Yanner, ex parte A-G.[2] It is noteworthy that both of these cases concerned offences committed before the amendment to s 9 which added s 9(3) and s 9(4).

[4]  I agree with the orders proposed by Keane JA.

[5]  KEANE JA:  On 16 October 2008 the applicant was convicted on his own plea of one count of assault occasioning bodily harm.  He was sentenced to imprisonment for 18 months suspended after six months for an operative period of two years.  The maximum punishment that might have been imposed was seven years imprisonment.

[6] The applicant seeks leave to appeal against this sentence on the ground that it was manifestly excessive.  The application for leave to appeal was originally listed for hearing in this Court on 4 December 2008, but it was delisted administratively at the applicant's request in order to afford the applicant the opportunity to obtain further evidence.

[7] On 19 December 2008 the applicant was released on bail pending the determination of this appeal.  He has thus served 65 days in custody for this offence.

Circumstances of the offence

[8] On the afternoon of 2 December 2006, the applicant assaulted the complainant, Christian Patrick Moore.  The complainant was a passenger in a motor vehicle being driven through a bottle shop at a hotel.  The applicant drove his own vehicle so as to block the path of the vehicle in which the complainant was travelling.  The applicant got out of his car and walked to the complainant's window and said that he wanted to fight him.

[9] The complainant told the applicant to go away, and the applicant then grabbed the complainant's left arm, pulled it out of the window and back towards the rear passenger's window.  The applicant was yelling:  "I'm going to break your arm."  The complainant was pulled out of the car window.  On the way, he grabbed a short round wooden pole or baton with which he twice hit the applicant's legs.  The applicant punched the complainant's face with his right hand.  The complainant fell to the ground and let go of the wooden pole.  The applicant then punched the complainant in the head approximately six or seven times rendering him unconscious.  He then kicked the complainant in the head three or four times.  That the applicant continued his assault after the victim had been rendered unconscious is a matter of special concern.  Fortunately, the applicant was not wearing shoes.

[10]  The passenger in the applicants' car said:  "That's enough."  At this point the applicant desisted from his attack on the complainant.  The applicant then drove away.

[11]  The complainant was taken to hospital where his injuries were treated.  He suffered a fractured cheekbone as well as assorted lacerations and bruising to the head and his left upper arm.  Photographs of his injuries show that he also suffered scarring to the face.

[12]  The applicant and the complainant had previously worked together.  There was bad blood between them as a result of the sale of a car by the applicant to the complainant.  They had previously engaged in a fist fight in which the complainant had gained the upper hand.  The applicant had subsequently told the complainant's brother on two occasions that he "had not finished" with the complainant because of issues surrounding the sale of the car.

[13]  The applicant's plea of guilty could not be regarded as an early plea.  The matter had proceeded through a committal hearing on 2 May 2008 with cross-examination of the complainant, his companion at the time of the assault and an independent witness.  The matter was twice listed for trial before the applicant decided to plead guilty.

The applicant's personal circumstances

[14]  The applicant was 35 years old at the date of his offence and 37 years old at the date of sentence.  He is involved in restaurant management.

[15]  The applicant has a minor criminal history of little present relevance.  It may be noted, however, that he has two previous convictions for assault.

[16]  He is a single father of an eight year old child to whom he is said to be devoted.

The sentence

[17]  Many references were tendered at the sentence hearing attesting to the applicant's good character.

[18]  The applicant made the point that a sentence involving actual custody would cause difficulties for his elderly mother and dependent son. 

[19]  The applicant also offered to pay compensation of $7,500 to the complainant.  This money was borrowed from a family member.  The learned sentencing judge was disposed to regard this offer as a consideration of little relevance to sentence.  I note that it is not suggested that his Honour erred in this regard.

The application in this Court

[20]  The applicant's contention is that the sentence was manifestly excessive.  The only basis for that contention is said to be because the applicant is obliged to spend six months in actual custody.  In other words, it is said on the applicant's behalf that a sentence which was not wholly suspended was manifestly excessive.  I am unable to accept that contention.

[21]  The question is whether the imposition of a term of actual custody was within the scope of the proper exercise of the discretion of the learned sentencing judge.  There can be no doubt that it was reasonably open to his Honour to impose such a sentence in this case.  The observations of McMurdo P and Thomas JA in this Court in R v Yanner & Yanner; ex parte A-G[3] show that, generally speaking, an offender who is a mature adult should usually expect to serve a term of actual imprisonment for an offence involving deliberate, protracted and irrational inflicting of bodily harm upon another.  The decision of this Court in R v Jones[4] shows that this is so even in the case of a first offence where the offender has a good work history and has been more co-operative with the administration of justice than the applicant in this case has been. 

[22]  Offences involving personal violence raise considerations of general and personal deterrence which may warrant a custodial sentence even for a first offence.  The applicant's record of previous assaults suggests that the need for personal deterrence is a consideration of concern in this case.  In the present case, the applicant's assault on the complainant was quite unprovoked; the complainant did not want to fight the applicant, but the applicant persisted in his pursuit of a grudge.  While the courts are slow to send an offender to prison for a short time where the offender has not previously been sentenced to actual imprisonment, considerations of general and personal deterrence will, generally speaking, overcome that reluctance in the case of a mature offender.  That this offence, involving as it did persistent personal violence by a mature adult, should be punished by a sentence involving actual custody is hardly surprising. 

[23]  The assault was not an act of youthful misjudgement:  the applicant is a mature man, and his attack on the complainant was prosecuted with deliberation and determination.  The complainant suffered serious injury.  It is a matter of special concern that the applicant continued his attack upon the complainant by kicking him after he had been rendered unconscious.  It cannot be said that the sentence was manifestly excessive on the material which was before the learned sentencing judge.

[24]  On the applicant's behalf, reference was made to a number of decisions of this Court in which, so it was argued, non-custodial sentences were imposed in cases of assault occasioning bodily harm which were "more serious" so far as the offending involved was concerned than the present case.  The first of these cases was R v Walsh, Sayer & Thompson,[5] but that case is immediately distinguishable from the present on the grounds that the offenders were youths with no criminal history who had been provoked by the complainant, and their assault did not continue after the victim had been rendered unconscious.

[25]  Reference was also made in this context to R v Yanner & Yanner, ex parte A–G,[6] but that case was an appeal by the Attorney-General and the Court refrained from imposing a custodial sentence expressly because of the lapse of two and a half years between the violent conduct and the appeal to this Court, and the non-custodial sentence had been imposed at first instance because of concessions made by the learned Crown Prosecutor who had urged that the sentence be fully suspended.[7]

[26]  Next, reference was made to R v Fairbrother; ex parte A-G (Qld),[8] but that was a case where a non-custodial sentence was upheld explicitly on the basis that the relevant assault had not been found to be deliberate.[9]

[27]  The final case referred to on behalf of the applicant in this regard was R v Conway.[10]  But this was a case where this Court, while allowing the offender's appeal, did not fully suspend the sentence of imprisonment which was imposed when this Court sentenced the offender afresh.  It affords no support at all to the applicant's submission.

[28]  Accordingly, I do not regard the cases to which reference has been made as indicators that the sentencing discretion miscarried in the present case.

Further evidence

[29]  The applicant now seeks to rely upon evidence which was not adduced below.  At the hearing before the learned sentencing judge, it was said that the applicant was suffering from depression, and when the judge enquired as to whether any report was available in that regard, he was told that none had been obtained.  No adjournment was sought at that time to enable an expert report upon the applicant's emotional state to be obtained.  As I have noted above, it was to enable the applicant to seek to obtain such evidence that this matter was previously delisted administratively at the applicant's request.  There was, in the written submissions for the applicant, a suggestion that the applicant would seek to adduce evidence from a psychologist and a psychiatrist; but in the end the applicant sought to rely only upon a report from a psychotherapist.

[30]  In relation to the admissibility of this further material, the applicant's counsel relied upon the decision of this Court in R v Maniadis[11] in which it was recognised that the Court has a discretion under s 668E(3) of the Criminal Code 1899 (Qld) to admit new evidence on appeal in order to show that "some other sentence, whether more or less severe, is warranted".  In the reasons of Davies JA and Helman J, with which Fitzgerald P agreed, it was said that whether or not new evidence is to be admitted on an application for leave to appeal against sentence is a question which depends ultimately upon perception that the reception of the new evidence is necessary to prevent a miscarriage of justice.  Their Honours said:[12]

"That is not to say that the discretion to admit new evidence in an appeal pursuant to subs [668E](3) will be commonly exercised by an appellate court (See, for example, R v Lanham [1970] 2 NSWR 217, R v Brett [1983] 1 Qd R 38). But a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh in the above sense, if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive (Cf Knights (1993) 70 A Crim R 105). Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed (As in R v M [1996] 1 Qd R 650; R v Smith (1987) 44 SASR 587; Jones (1993) 70 A Crim R 449. Evidence of subsequent sentences imposed on co-offenders appears to be an exception to the general proposition; and query Greer v The Queen referred to in Gavin v The Queen (1991) 6 WAR 195 at 208).

There will no doubt be cases in which, notwithstanding that, if such evidence were admitted some other sentence would be warranted, the evidence should nevertheless be excluded. Where the evidence was known to the appellant at the sentence hearing and deliberately withheld, that will generally be so.

However we would not agree with the majority of the New South Wales Court of Criminal Appeal in Goodwin ((1990) 51 A Crim R 328) that, for such evidence to be admissible on appeal, two conditions which must always be satisfied are that, if the existence of the evidence is known to the appellant, its significance was not realised by him and that its existence was not known to the appellant's legal advisers at the time of the sentence hearing. No doubt where those conditions are absent such evidence will usually be excluded but that may not always be so. In the end, the reception of such evidence will depend on whether, if it were excluded, there would be a miscarriage of justice; and it would be undesirable, in our view, to state in advance those matters which, in every case, must be proved in order to establish such a miscarriage."

[31]  In my respectful opinion, no sufficient basis has been shown for allowing the further material to be considered in this case.  Any such material could have been obtained earlier, and there is no good explanation for the applicant's failure to do so.  It is difficult to avoid the conclusion that a decision was made not to provide the sentencing judge with a report of the kind now sought to be tendered:  his Honour explicitly enquired as to whether the applicant sought to rely upon such evidence.  Furthermore, there is no reason to believe that it would be apt to cast the sentence imposed in a materially different light, much less that it is necessary to correct a miscarriage of justice.

[32]  The report of Ms Carbone, the psychotherapist on which the applicant seeks to rely, shows that the applicant began receiving counselling for his "anger issues" in mid-January 2009, that is to say only after he had been sentenced.  Ms Carbone observed that the applicant "feels the consequences of his behaviour are costing him a lot.  This has resulted in feelings of depression."  This observation does not serve to lessen the culpability of the applicant's offending conduct.  If anything, it tends to suggest a level of self-regard and insensitivity to the rights of others inconsistent with a proper appreciation of the serious nature of his offence.

[33]  It is readily apparent without Ms Carbone's report that the applicant has a problem with anger management which needs to be addressed in his own interests and in the interests of the community.  Evidence that, since he was sentenced, he has come to recognise that this is so does not demonstrate that the sentence which was imposed upon him was manifestly excessive.  The new report is not apt to suggest that the applicant has suffered a miscarriage of justice.  I would refuse to receive this new evidence.

Conclusion and orders

[34]  The contention that the sentence was manifestly excessive should be rejected.

[35]  The application for leave to adduce further evidence should be refused.

[36]  The application for leave to appeal against sentence should be refused.

[37]  A warrant should issue for the apprehension of the applicant.  The warrant should lie in the Registry for 14 days.

[38]  ATKINSON J:  I agree with the orders proposed by Keane JA and with the reasons of the President and Keane JA.