SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant, Daniel Thomas Woodman, pleaded guilty in the District Court at Mount Isa on 8 December 2008 to doing grievous bodily harm with intent on 8 April 2008.  The complainant was his partner.  He was sentenced to 11 years imprisonment.  He committed this offence during the operational period of a partially suspended sentence of two and a half years imprisonment, 16 months of which remained unserved.  He was ordered to serve that 16 month period of imprisonment, but concurrently with the 11 year sentence.  Woodman also pleaded guilty to breaching a domestic violence order on 11 November 2007 for which he was sentenced to 134 days concurrent imprisonment.  He has applied for leave to appeal against his sentence, contending that it was manifestly excessive in that the judge gave too much weight to his prior criminal history and failed to adequately discount the sentence for his early plea of guilty. 

[2]  He has also appealed against his conviction.  Although this appeal was not formally abandoned, the applicant's counsel informed the respondent's counsel that Woodman was only pursuing his application for leave to appeal against sentence.  This is unsurprising in light of Woodman's guilty pleas.  The appeal against conviction should be dismissed.

Woodman's criminal history

[3]  Woodman was 27 years old at the time of his offending and at sentence.  He had an extensive criminal history, both in Queensland and the Northern Territory.  It commenced with minor property and driving offences in the Northern Territory in 1995 and 1996.  Of more significance are his extensive convictions for violence. 

[4]  His relevant Queensland convictions are as follows.  In 1998, in Rockhampton, he was convicted and sentenced to three months imprisonment fully suspended for 12 months, for assault occasioning bodily harm.  In 1999, in Mount Isa, he was convicted of obstructing police, breach of domestic violence order and assault occasioning bodily harm and was sentenced to an effective term of four months imprisonment.  In July 1999, he was convicted and sentenced to 12 months imprisonment, suspended for two years after four months, for doing grievous bodily harm and going armed as to cause fear.  The offence of doing grievous bodily harm occurred during a fight with his father-in-law after they had both been drinking heavily.  His father-in-law's lung was punctured and his ribs broken in the fracas.  The offence of going armed involved the threatening of a hospital security guard with a knife.  The sentencing judge advised Woodman that when he was released from prison he should stop drinking and keep out of fights, noting that Woodman came from a traditional Aboriginal family, that he had settled in Mount Isa and that Mount Isa was not good for him. 

[5]  Woodman did not act on that advice.  In both 2000 and 2001, he was again convicted of breaching a domestic violence order.  On the latter occasion, he was sentenced to three months imprisonment.  Four days later, he was convicted of four further breaches of domestic violence orders, common assault, possession of property suspected of being stolen, stalking, entering a dwelling and breach of bail conditions.  He was convicted and sentenced to an effective term of six months imprisonment.  In 2001, he was convicted and sentenced to short custodial terms for breaching bail and breaching the suspended sentence imposed in July 1999. 

[6]  In October 2006, he was convicted of assault occasioning bodily harm whilst armed, and other related charges and sentenced to an effective term of two and a half years imprisonment suspended after serving 14 months with a three year operational period.  The present offence occurred during this operational period.  The circumstances of the October 2006 conviction, in which Woodman's partner was again the victim, were as follows.  She was then 20 years old and 18 weeks pregnant with Woodman's child.  He threw a rock at her which she dodged.  He said, "Don't walk away from me.  I'll fucking kill you."  She sat down next to him.  He pulled out a knife and asked, "Do you want to see your family and kids? 'Cause I'll fucking put this in your heart."  Later in the afternoon, he grabbed a brick.  He hit her in the head several times with it, even after she was on the ground.  He also hit her on the legs with the brick.  She could not get up, was in pain and her face was bleeding.  She suffered a haematoma and a 1.5cm laceration to the forehead; a 2cm laceration to the right occipital parietal area; a swollen and tender right ankle with a fractured medial and lateral malleolus; and a swollen but not fractured left ankle.  She discharged herself from hospital that evening.

[7]  His most relevant convictions in the Northern Territory were committed in October 2004 when he assaulted a female.  He was convicted but released on a six month good behaviour bond.  He also assaulted a person who suffered bodily harm.  He was convicted and sentenced to four months backdated imprisonment. 

The breach of the domestic violence order

[8]  Woodman's most recent breach of domestic violence order, for which he received 134 days imprisonment concurrent with the 11 year sentence under review by this Court, occurred as follows.  He was subject to a domestic violence or family protection order from 8 December 2005.  The order was to expire on 7 December 2007.  His partner was the "aggrieved" in that order.  The order required that Woodman be of good behaviour towards her and not commit domestic violence against her.  On 12 November 2007 at about 11.50pm, she telephoned police for assistance from a phone box outside the cinema on Rodeo Drive, Mount Isa.  She was sitting on the edge of a garden bed with her two children, aged one and five.  She told police she had been drinking with Woodman and his brothers under a bridge.  Woodman became jealous because she was sitting next to his brother and ignoring Woodman.  He picked up a rock with which he hit her in the head.  He said he was going to dig her eyes out.  As she attempted to leave, he tried to pull the one year old baby from her arms.  When she regained possession of the child, Woodman stuck his thumbs into her eyes.  She took the children to a nearby phone box, telephoned police and waited for them to arrive.  Woodman was arrested shortly afterwards.  He did not attempt to excuse his actions to police.

The offence of grievous bodily harm with intent

[9]  Woodman committed his most recent offence, grievous bodily harm with intent, on 8 April 2008 at about 6.30pm at the "dinner camp" on the Leichhardt River, Burke Street, Mount Isa.  Witnesses told police that the victim was at the riverbed drinking with them when he arrived.  Woodman and his partner began to argue.  She wanted to leave to avoid any conflict with him.  She asked others to come with her but nobody would.  She got up to leave alone.  She and Woodman had been drinking from a plastic bottle containing a liquid which he called "guam" (a slang term for methylated spirits).  He said, "Something is going to go bad here, something is going to go wrong"; he stood up, walked over to his partner, knelt down, threw the liquid onto her face and arms and used a lighter to set her on fire.  Other witnesses threw a quilt around her and rolled her on the ground to extinguish the fire.  Woodman walked past laughing.  He said, "I told you something was going to go wrong."  She then walked with her aunty to Mount Isa Base Hospital where she was in a critical condition with severe burns to her face and arms.  She was later flown to the Royal Brisbane Hospital burns unit where she received further treatment. 

[10] Woodman visited a missionary in Townsville, Ms Hazel Lauridsen, shortly after committing the offence.  He asked her to pray for him and the victim.  He was frightened that her relations would kill him.  He said, "I'll get 10 years for this."  He told Ms Lauridsen that the victim was pregnant at the time.  Ms Lauridsen tried to persuade Mr Woodman to hand himself in to the authorities.  He was not so much worried about the police as about being killed by his partner's relatives.  Ms Lauridsen asked him, "What made you do it?"  He responded, "I don't know, I don't know.  My brain just went funny."  He asked her to ring the hospital and check on the victim.

[11] Police were unable to locate Woodman for some time after the offence as he went to the Northern Territory.  He was located, arrested and charged about three months later.  He spent 154 days in pre-sentence custody.

[12] The complainant described her pain as "real, real bad".  Police who saw her at the hospital could smell burning flesh and described the dreadful appearance of her burnt skin.  She suffered full thickness burns to her face and neck, her right eye was swollen and shut, and the right eyelid burnt.  She had a full thickness burn to her left arm, hand and fingers.  She was an in-patient from 9 to 23 April 2008 at the Royal Brisbane Hospital.  She initially had difficulty opening her mouth to eat and had a nasogastric tube inserted.  She suffered permanent scarring at the skin graft sites and changes in skin pigmentation.  This Court has viewed the photographs of her injuries which were tendered at sentence.  Whilst photos of her appearance before the offence were not tendered, the photos of her face taken in July 2008 suggest that, thankfully, her face has not been seriously disfigured.  She has, however, suffered serious, unsightly scarring to her hands and arms.

[13] Her victim impact statement described her pain after the attack as "the worst kind of pain you could ever imagine".  She had three episodes of surgery, including skin grafts.  She could not eat for some time because the flames burnt her mouth and throat.  She was still in pain when she wrote her victim impact statement on 4 December 2008.  She had permanent scarring on her arms and hands and a scar on her hip from the skin graft.  At the time of the offence she thought she was going to die.  She remains scared of men and has not had a relationship since the offence.  She has ended her relationship with Woodman and does not want any further contact with him.  She does not drink alcohol as much as she used to and no longer goes to the "dinner camp".  She wants to get a job and "move on".

The submissions at sentence

[14] The prosecutor at sentence submitted that the seriousness of the offence and the particularly horrific injuries suffered by the victim, together with Woodman's extensive criminal history for similar offending, warranted a sentence of at least 10 years imprisonment, although a higher sentence could well be imposed.  This was supported by the comparable case of R v Williams.[1]  Some further punishment than in Williams was required because Woodman committed the present offence during the operational period of the earlier suspended sentence.

[15] Defence counsel at sentence made the following submissions.  Woodman had drunk methylated spirits for the first time on the night of this offence.  He also drank wine.  This alcoholic combination affected his mental state.  As Woodman said shortly after the offence, "My brain just went funny."  He expressed remorse to Ms Lauridsen, asking her to pray for him and for the victim.  Woodman had been addicted to alcohol since about the age of 14.  He and his partner had an arrangement that if anything happened to either of them, the other would take their children to a safer place with family and friends.  That is why he left Queensland after this offence and took their daughter to the Northern Territory where he grew up.  Only when he "goes bush" is he able to stay off alcohol.  Since he was incarcerated for this offence, he undertook courses in literacy and numeracy, domestic violence prevention and bible studies.  By the time of sentence, he was well motivated to reform.  When he is finally released, he hopes to be a decent father to his children and to live a changed life without alcohol.  Williams was a more serious case because of William's premeditation and Woodman's relative youth.  Woodman's sentence should reflect the relevant mitigating features, especially his guilty plea.  Cases like R v Wentworth[2] supported a sentence of eight or nine years imprisonment, perhaps with a serious violent offence declaration.

The judge's sentencing remarks

[16] After referring to the facts of the offending, the judge noted the severity of the victim's burns and their effect on her physical and mental well-being.  His Honour then noted the following matters.  Woodman left Queensland after committing this offence and was not apprehended by police for some three months.  The attack on the complainant constituting grievous bodily harm with intent was exacerbated by the commission of the offence during the operational period of a suspended sentence.  Woodman had a shocking criminal history for offences of violence, including violence against women. 

[17] It was said in his favour that the offences were committed when he had been drinking methylated spirits, his level of premeditation was low, he was addicted to alcohol and was remorseful for his actions.  Woodman had pleaded guilty at an early stage after a full hand-up committal.  He was making efforts to rehabilitate in custody. 

[18] Williams gave a clear indication of the appropriate sentence to be imposed in this case.  It would be crushing to impose a cumulative sentence for the breach of suspended sentence.  Taking into account the mitigating features, and weighing these against the horrendous nature of the offence of grievous bodily harm with intent, an effective, overall sentence of 11 years imprisonment was appropriate.  In respect of the suspended sentence, it was not unjust in the circumstances to order that he serve the whole of the outstanding term of custody but concurrently with the sentence of 11 years.  In respect of the breach of domestic violence order, a sentence of 134 days imprisonment already served was appropriate.

The submissions in the appeal

[19] The applicant's submissions are as follows.  The sentencing judge placed too much emphasis on Williams, a more serious offence than this.  Williams did not plead guilty at such an early stage as Woodman, and only after contested committal proceedings.  He was 38 years old, significantly older than Woodman, and his offending involved greater premeditation.  Although Woodman's criminal history was worse than Williams', that feature alone did not justify the same sentence as in Williams: Veen v The Queen (No 2).[3]  Additionally, the judge gave insufficient weight to Woodman's plea of guilty which spared the complainant the ordeal of cross-examination, and indicated remorse, acceptance of responsibility and a willingness to facilitate the course of justice.  R v Wentworth, R v Lyon,[4] R v Mitchell[5] and R v Holland[6] supported the submission made at first instance that a sentence of eight to nine years imprisonment with a serious violent offence declaration was the appropriate sentence.  Had the matter gone to trial, a penalty of no more than 12 years imprisonment would have been imposed.  This demonstrates that the sentence in fact imposed did not give adequate recognition to the mitigating features, especially to the plea of guilty, the drunken intent and the limited premeditation.

Discussion of the cases said to be comparable

[20] It is helpful to briefly discuss the cases relied on by the applicant in his attempt to show the manifest excessiveness of the sentence.  In Wentworth, the applicant had acrimoniously separated from his wife.  He poured petrol over her and her lover after seeing them having sexual intercourse.  Although he tried to light the petrol he was not successful.  Fortunately, the complainants were not seriously injured, although his former wife sustained severe and lasting psychological consequences.  Wentworth pleaded guilty to doing grievous bodily harm with intent and to unlawfully applying an explosive substance to the person.  He was sentenced to nine years imprisonment with parole eligibility after three and a half years.  He had a criminal history involving offences of dishonesty only.  This Court determined, by majority, that the sentence imposed was not manifestly excessive; the offending constituted a breach of Wentworth's undertaking to the Family Court and was part of a course of vicious and menacing conduct. 

[21] In Williams, the applicant was charged with attempted murder and, alternatively, doing grievous bodily harm with intent.  He pleaded guilty to the alternative count in full discharge of the indictment and was sentenced to 11 years imprisonment with a declaration that the offence was a serious violent offence.  He sought an extension of time to appeal against his sentence.  The offence occurred in this way.  Williams was residing with three others, including the complainant.  He had an argument with her and returned with a bottle of methylated spirits saying, "You're going to burn, bitch."  He poured the methylated spirits onto her and set her alight.  He inadvertently set himself alight, but was not seriously injured.  He fled the house but was apprehended by police later that day.  Drugs seemed to have been the precipitating cause of Williams' conduct.  The complainant suffered extensive burns to her body.  She was in intensive care for eight days and in the burns unit for a further 17 days.  She required surgery, including skin grafts.  She was left with extensive areas of scarring.  She recovered from some of the injuries but had on-going complications in relation to others.  She faced further operations in the future and was still using painkillers at the time of sentence.  Williams was 38 years old at the time of the offence.  His criminal history was not extensive, but it involved some convictions for violence, including a breach of a domestic violence order.  This Court refused to extend time because there were no prospects of an appeal against sentence succeeding. 

[22] In Lyon, the applicant was convicted by a jury of aggravated burglary and unlawfully wounding his former wife with intent to do grievous bodily harm; he was acquitted of attempting to murder her.  He was sentenced to nine years imprisonment for unlawful wounding with intent, with a declaration that the offence was a serious violent offence, and to a lesser concurrent term for aggravated burglary.  Lyon had acrimoniously separated from the complainant.  He believed she had spread spiteful stories about his new partner, and that his children might not be safe with her new partner.  They had also disagreed over access arrangements to the children over Christmas.  He was convicted of breaching domestic violence orders the day before he committed these offences.  He began drinking and argued with his new partner who called the police.  After the police left, he sharpened a machete and drove to the complainant's home.  He kicked in her front door and attacked her with the machete.  A number of blows intended for her hit the wall when she successfully ducked to avoid them.  She was struck at least one glancing blow.  She suffered a slash to her face and cuts to her neck, arm and finger, as well as severe whiplash and nerve damage in her cheek, leaving her with both a scar and a lack of feeling in the cheek.  She was saved from further injury by the intervention of her 12 year old son.  She also suffered psychological consequences.  The sentencing judge was not told that Lyon had offered to plead guilty at an early stage on an ex officio indictment to the offences of which he was ultimately convicted by the jury.  This Court, by majority, determined that nine years imprisonment with a declaration that the offence was a serious violent offence was manifestly excessive and that the appropriate sentence after a trial was about eight years imprisonment.  A sentence of seven years imprisonment with a declaration was substituted to effect the early intimation of a guilty plea.

[23] In Mitchell, the applicant was sentenced to seven years imprisonment with a declaration that the offence was a serious violent offence after pleading guilty to grievous bodily harm with intent.  He was sentenced to a lesser concurrent term of imprisonment for the offence of deprivation of liberty.  The facts of the offences were contested at sentence.  The complainant, a 45 year old woman, met Mitchell on the day of the offences through a mutual acquaintance.  All three drank heavily that day.  Mitchell's account was as follows.  He fell asleep and woke up to find the complainant touching his stereo and television.  He thought she was attempting to steal them and decided to "teach her a lesson".  He went to his room and returned with an iron bar with which he intended to "touch her up" or "tap" her.  She escaped by jumping out a bedroom window.  The complainant's version was as follows.  Mitchell made sexual advances to her which she rejected.  He then threatened to kill her, returning with an iron bar with which he struck her on her head, legs, shoulders and arms.  He hit, kicked and punched her and forced her into a bedroom.  She was finally able to escape from the bedroom, run to a balcony and jump one floor to the ground below.  She hid behind a car and sought assistance from a woman.  Mitchell tried to pursue her, yelling, "Get back here."  Police were called and found the blood-stained iron bar in Mitchell's possession.  His shirt was also blood-stained, and he was intoxicated.  The sentencing judge accepted the complainant's evidence that Mitchell had raised the iron bar above his head before bringing it down towards her about 12 to 15 times.  The assault probably failed to have serious physical consequences for the complainant because of Mitchell's intoxication.  The complainant suffered a laceration to, and a compound fracture of, her elbow which required surgery, lacerations to her scalp which were sutured, lacerations to her shins, bruising to her left eye and right shoulder, and a dislocated toe which required manipulation.  She suffered on-going balance problems from her toe injury and detrimental psychological effects.  Mitchell was 51 years old and had a relevant and lengthy criminal history involving many offences of violence including a conviction for manslaughter after a trial for which he was sentenced to eight years imprisonment.  Mitchell was sentenced to seven years imprisonment with a declaration that the offence was a serious violent offence.  This Court considered that his offending was serious, prolonged and potentially lethal and he had a significant criminal history.  Even taking into account his guilty plea and that the complainant's injuries were not grave, the sentence imposed was within the appropriate range.

[24] In Holland, a five year term of imprisonment cumulative upon a 12 month suspended sentence was imposed on the applicant for doing grievous bodily harm with intent.  He was convicted after a trial.  Holland was 43 years old at the time of the offence and 45 at sentence.  He had some previous criminal history for violence.  Holland attacked the 59 year old complainant with whom Holland was then living, punching him several times until he went to the floor and then kicking him around the neck, face and jaw-line whilst wearing work boots.  Holland also attacked another housemate who went to the complainant's aid.  The complainant's left jaw was broken in several places and without treatment he would have been left with a permanent disability.  This Court did not consider the sentence was manifestly excessive.

[25] Wentworth is of limited assistance in this instance.  Unlike this case, Wentworth's offending did not result in serious physical injury and it preceded the 1997 amendments to the Penalties and Sentences Act 1992 (Qld) which are relevant to Woodman's sentencing.  Lyon, Mitchell and Holland are also of very limited use in this case.  The injuries suffered by the complainant in each of those cases were much less serious than in the present case.  As the primary judge rightly recognised, the case closest to Woodman's offending is Williams.  But Williams is authority only for the proposition that the 11 year term of imprisonment imposed there was so clearly within range that an extension of time to appeal should not be granted, despite Williams' acceptable explanation for the delay in seeking leave to appeal.  Woodman's violent criminal history was even worse than Williams' and Woodman committed his offence of intentional grievous bodily harm during the operational period of a partially suspended sentence for an offence of violence.  Williams supports Woodman's sentence as being well within the appropriate range.

Conclusion

[26] The maximum term of imprisonment for the offence of doing grievous bodily harm with intent is life imprisonment.  This is a most serious example of that offence.  The victim's injuries required this Court to sentence Woodman by having primary regard to the matters set out in s 9(4) Penalties and Sentences Act.  Woodman formed an intention, albeit a drunken intention after consuming methylated spirits and without extensive premeditation, to do grievous bodily harm to his literally long-suffering partner, the mother of his children, whom he knew was pregnant with his child.  He carried out that intention in a dreadful way.  He poured methylated spirits over her head, face and upper body and set fire to her.  She suffered shocking burns, excruciating pain, a lengthy period of hospitalisation and rehabilitation, permanent scarring and extensive physical and psychological injuries.  He was frightened by what he had done and especially about the consequences of it for him.  He expressed some remorse but not enough to surrender himself to the authorities.  He fled to the Northern Territory and was not apprehended for about three months.  To his credit, he did plead guilty at an early stage and the victim was not required to give evidence, even at committal.  He has a shameful criminal history for offences of violence, including against the present victim. 

[27] The only mitigating features were Woodman's early plea of guilty, his relative youth and efforts at rehabilitation whilst in pre-sentence custody, and that his actions were committed without much premeditation and with a drunken intent.  But for those matters, this case would have been close to the category of worst examples of the offence of doing grievous bodily harm with intent.  After a trial, an effective sentence of between 12 to 16 years could have been imposed, in light of the commission of this offence during the operational period of a suspended sentence for an offence of violence, and Woodman's appalling past record of violence, including violence against the present victim.  Under s 9(4)(g) and (h) Penalties and Sentences Act, Woodman's previous convictions for offences of violence were relevant in sentencing, despite the observations made by the High Court in Veen (No2) to which Woodman's counsel in this application has referred.  Importantly, Woodman's 11 year sentence effectively encompassed a concurrent sentence of 14 months imprisonment which Woodman was ordered to serve because of his commission of this offence during the operational period of a suspended sentence.  The 11 year head sentence adequately balances the various mitigating and exacerbating features of this case.  It recognises Woodman's early plea of guilty, the conduct of his case by way of a full hand-up committal, his drunken intent, limited premeditation, relative youth and rehabilitative prospects.  The judge placed appropriate weight on Woodman's past record (s 9(4)(g)) and his antecedents (s 9(4)(h)).  The sentence imposed was within the appropriate range and the applicant has not demonstrated that the sentencing discretion miscarried in any way.

[28] Orders:

1. The appeal against conviction is dismissed.

2. The application for leave to appeal is refused.

[29] FRASER JA:  I have had the advantage of reading the reasons for judgment prepared by the President.  I agree with those reasons and with the orders proposed by her Honour.

[30] CULLINANE J: I have read the draft reasons of McMurdo P in this matter and agree that the appeal against conviction should be dismissed and the application for leave to appeal should be refused.