SUPREME COURT OF QUEENSLAND

[1] McMURDO P: The application for leave to appeal against sentence should be dismissed for the reasons given by Applegarth J.

[2] Under s 9(2) Penalties and Sentences Act 1992 (Qld) a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable.  But as the applicant's assaults on the complainant involved the use of violence, s 9(2)(a) does not apply to his sentence: see s 9(3).  Instead, the court must have regard primarily to the sentencing principles set out in s 9(4).  Applying those principles, a judge could have imposed a sentence in this case that did not involve a period of actual custody whilst still meeting the need for personal and general deterrence.  For example, an effective sentence of two to three years imprisonment, immediately suspended, with an operational period of five years; or a two to three year term of imprisonment with immediate parole would have been within range.  The sentence imposed, however, was also within range. 

[3] KEANE JA:  I have had the advantage of reading the reasons of Applegarth J.  For those reasons I agree that the application for leave to appeal should be refused.

[4] APPLEGARTH J:  On 19 June 2009 the applicant pleaded guilty to two counts of assault occasioning bodily harm on 6 November 2007.  The first assault was a punch without warning to the complainant’s head when he was standing at a hotel bar.  The complainant was knocked to the ground and was briefly unconscious.  The second assault occurred later during a fight in the street.  The applicant felt fingers go into his eyes during the fight, and when a finger went into his mouth he bit so hard on it that the complainant suffered a complete amputation of the tip of his finger and the bone. 

[5] The applicant, who was aged 43 when the offences were committed, was sentenced to six months’ imprisonment on the first count, and two years’ imprisonment on the second count, with a parole release date fixed at 19 December 2009.  He seeks leave to appeal against his sentences on two grounds.  The first alleges an error in finding that the biting occurred during a consensual fight.  The second is that the sentences which required the applicant to serve six months in custody before being released on parole were manifestly excessive.

The circumstances of the offences

[6] The applicant knew the complainant (Peter McLaughlin), his brother Jason McLaughlin and the complainant’s family.  The applicant had been a professional rugby league player and was acquainted with the complainant and the complainant’s family who were members of the same club.  In 1994 there was a dispute between the applicant and Jason McLaughlin during which the applicant is alleged to have struck him.  Charges were laid, but subsequently withdrawn.  At the time the applicant had a promising football career.  Following a meeting at which the applicant apparently expressed regret at what had happened, Jason McLaughlin decided not to proceed with the charges.  The applicant and the McLaughlin brothers resolved to be civil to each other because they had many friends in common.  This arrangement lasted until 6 November 2007, which was Melbourne Cup day.

[7] On that day the complainant was with friends and family, including Jason McLaughlin, at the Coolangatta Surf Life Saving Club, and later in the afternoon at the Coolangatta Sands Hotel.  The applicant arrived at the same hotel at about 4 pm after he finished work.  He had about six schooners of heavy beer.  At some time that evening the applicant and the complainant were in the hotel toilet at the same time.  The applicant, who was heavily intoxicated, tried to speak to the complainant at the urinals.  He asked what seemed to be innocuous questions like “How are you going?  Are you having a good day?”.  The applicant’s instructions were that these were simply civil comments, but the complainant thought that they were said with a snide and sarcastic tone.  The complainant left the toilet and the applicant left soon afterwards.  The complainant went up to the main bar.  The applicant tried to talk to him again but the complainant would not have anything to do with him.  At some point the complainant said to the applicant “Mate, I don’t want to talk to you, you hit my brother”.  The applicant replied, “Are you still holding a grudge over that?”, and the complainant responded, “What do you think, you king hit my brother I’m not going to be your friend”.

[8] According to witnesses, the applicant punched the complainant to the left side of the head without warning.  The force of the blow caused the complainant to fall to the ground.  The complainant’s recollection was that he had been facing the bar when he was punched.  The next thing that the complainant could recall was being on the ground, and then trying to stand up and feeling what seemed to be blood coming from his left eye.  This episode led to the first count. 

[9] Some aspects of subsequent events are uncertain in terms of their sequence.  It is clear, however, that the applicant was asked to leave by security staff at the hotel, and did so, accompanied by a friend.  They intended to leave the area and walked away from it.  The complainant’s brother, Jason McLaughlin, left too in order to confront the applicant and they began to argue.  This escalated into a physical fight in which they grappled with each other and fell over.  Jason McLaughlin’s recollection was that the applicant tried to gouge his eyes and so he called out for help.  The complainant’s evidence was that he looked out into the street and saw the fight between his brother and the applicant, and that the applicant was “getting the better” of it.  The applicant’s instructions were that as he and his friend were heading away from the hotel he heard voices coming from behind and it appeared to be the complainant, his brother and others. 

[10] At some point someone dragged the applicant off Jason McLaughlin and it was at this point that the complainant became involved.  During this fight the applicant threw punches at the complainant that struck him on the right side of the face.  The complainant fell to the ground and the applicant then sat astride him and held him down with his knee and his left hand.  According to bar staff witnesses the applicant punched the complainant several times in the face.  The complainant was not hitting him back but was trying to get away.  The complainant was lying on his back and he put his hand up towards the applicant’s head as if to deflect him and his right middle finger went into the applicant’s mouth.  The applicant’s version is that he felt someone’s fingers go into his eyes, then felt somebody’s fingers go into his mouth, was concerned about being gouged in the eye and bit down hard on the finger.  He bit so hard that he bit through the tip of the finger and the bone.  The complainant felt extreme pain.  The applicant was pulled off the complainant by some bystanders.  The complainant noticed that a large portion of the top of his middle finger had been bitten off, and he went into shock.  Police arrived and had to use capsicum spray to end the confrontation.  Police described the applicant’s behaviour after his arrest as aggressive and confrontational.

[11] The complainant was taken to hospital and the diagnosis was an oblique complete amputation of the middle finger of the right hand with the loss of half the tip and approximately half of the nail.  Other injuries were observed including lacerations.  The complainant’s hand was operated on a couple of days later and he received a skin graft.  The complainant spent five weeks off work.  He was a labourer at the time.  In addition to the physical disfigurement of his finger, he suffered a loss of strength of about 60 per cent to his hand.  He can no longer work as a labourer, but fortunately obtained employment as a safety officer which he regards as a career improvement.

[12] The applicant was originally charged with doing grievous bodily harm.  The charge was reduced to one of assault occasioning bodily harm.  Even though the applicant acknowledges that the injury probably fell within the definition of grievous bodily harm,[1] for the sake of finality the prosecution conceded that it was a case of assault occasioning bodily harm, rather than doing grievous bodily harm.  The applicant therefore faced a maximum penalty of seven years’ imprisonment under s 339 of the Code for each offence.

Submissions upon sentencing

[13] Counsel for the applicant upon the sentence submitted that the basis of the plea to the second count was “excessive force that he used in the circumstances to repel this attack and he admits that it was excessive.”[2]

[14] The prosecutor had earlier submitted that a sentence of imprisonment in the order of two to three years was required and that the seriousness of the offence, the applicant’s age and his criminal history would “ordinarily” result in the prosecutor seeking a period of actual custody.  However, the prosecutor did not seek actual custody and submitted that the applicant be subject to immediate parole.  A matter that influenced the prosecutor to not seek actual custody was that the complainant, during a recent conference, had said to the prosecutor that he did not want the applicant to go to jail because he understood that the applicant was the sole carer of a 16 year old son and thought that any period of actual custody would cause the son undue hardship.  During his submissions the applicant’s counsel informed the Court that the applicant’s son was not in fact living with him, but that the applicant was financially responsible for the boy and another child.  Having heard this, the prosecutor arranged for the arresting officer to speak to the complainant again and reported that this made no difference to the attitude of the complainant.

[15] The applicant’s counsel acknowledged that imprisonment between 18 months and three years was appropriate in the circumstances and adopted the prosecutor’s submission that an immediate parole release date would be within range.  He then submitted that regard should be had to the fact that the defendant left the scene of the initial assault and was then followed by the complainant and the complainant’s brother.  The following exchange then occurred:

“HER HONOUR:  Yes.  And then there was a consensual fight, and there is no charge arising out of the consensual fight.

MR McNAB:  That’s right, your Honour.

HER HONOUR:  It’s the fact that he took the next step.

MR McNAB:  It’s excessive force.

HER HONOUR:  All right.”

[16] The learned sentencing judge stood the matter down in order to consider an appropriate sentence.  The matter later resumed at which point the applicant’s counsel informed the Court that he had been further instructed that at the time that the melee was taking place leading up to the second count, the applicant “had been restrained through weight and – and his arms were restrained and he just took that course of action by biting the finger at that time.”  The applicant’s counsel stated that he did not know whether this had any bearing on the decision but it was a matter that he placed before the Court.

The first ground of appeal

[17] The applicant submits that an error was made in finding that the biting occurred during a consensual fight.  In the course of her sentencing remarks, the learned sentencing judge stated:

“The second offence occurred, I accept, after you were leaving the premises.  So I accept what counsel has said to me that you were leaving when the fight broke out, not that you went out there looking for any further altercation with the complainant or with his brother.  However, a fight did break out.  The circumstances of that have not really been put before me, and given the state of intoxication of all those involved, it would probably be difficult to determine exactly how it broke out, but what happened then between you and the complainant’s brother and then later the complainant, I accept was at first a consensual fight.  What you did, though, went well beyond the bounds of acceptability.  I am proceeding on the basis that you were restrained by the weight of the complainant at the time you bit him.

There were other courses of action open to you.  Your degree of aggression is evident from the way in which the police had to restrain you with capsicum spray and reported your continued aggressive behaviour.

When you bit the complainant, you bit the middle finger of his right hand.  Assuming that you thought that this was somebody who was trying to gouge your eyes, I can see how, if the finger ended in your mouth, you might respond quickly with a bite.  But you bit so hard that you amputated half the tip and half the nail of the middle finger of his right hand.”

After referring to the consequences of the injury to the complainant, the complainant’s attitude towards the sentence and other matters her Honour continued:

“In deciding the head sentence for the second offence of assault occasioning bodily harm, I have taken into account these things.  This most serious offence took place in the context of a consensual fight.  Up to the point of that bite, it was a consensual fight.  It appears at around about that time the complainant indicated he didn’t want to fight anymore.

There was alcohol involved, and I assume all were affected.  No weapon was involved, but considerable force would have had to have been applied for more than few moments to result in this outcome.

As I said earlier, the biting, in fact, might be a reflex without any decision at all, but you would have to employ considerable force and persistence to result in an injury of this nature.”

[18] These passages, the exchange between the applicant’s counsel and the learned sentence judge that I have earlier quoted, and the sentencing remarks as a whole indicate that the learned sentencing judge understood that the basis of the plea on the second count was that excessive force had been used when the applicant reacted to what he apprehended was an attempted eye gouging.  The applicant was sentenced on this basis. 

[19] The reference to a “consensual fight” was to the events that preceded the bite and from which no charge arose.  This appears from the exchange that occurred prior to the sentencing remarks and to the learned sentencing judge’s reference to what was “at first a consensual fight”.  The earlier consensual fight provided the context in which the biting occurred.  By the time of the bite, the complainant had indicated that he did not want to fight any more.  The learned sentencing judge proceeded on the basis that the applicant was restrained by the weight of the complainant at the time he bit him.  This was a reference to the applicant’s late instructions that he had been “restrained through weight”.  However, the learned sentencing judge was mistaken in proceeding on the basis that the restraint was from the weight of the complainant.  On the appeal it was acknowledged that the restraint on the applicant was imposed by others and that at the time of the biting the applicant was on top of the complainant.  The learned sentencing judge’s assumption that the applicant was restrained by the weight of the complainant was favourable to the applicant.  The sentencing remarks indicate that what had started as a consensual fight developed into one in which, by the time of the bite, the complainant did not want to fight any more.  The learned sentencing judge did not err in finding that the biting occurred during a “consensual fight”.  No such finding was made.

[20] The sentencing remarks indicate that the learned sentencing judge took account of the fact that the applicant may have apprehended that somebody was trying to gouge his eyes and when a finger entered his mouth he might have responded with a bite.  Contrary to the submissions of the applicant’s counsel on this appeal, the learned sentencing judge did not overlook that the applicant was defending himself from apprehended eye gouging when he bit the complainant.  This was taken into account and the sentence was imposed on the basis that the force and persistence of the biting involved excessive force.

The second ground of appeal

[21] The applicant submits that the sentence that was imposed on each count was manifestly excessive, in particular because of the requirement that the applicant serve six months in custody before being released on parole.  The applicant on appeal submitted that the range within which the sentence should have been imposed was a head sentence of between 18 months to three years, with parole immediately or after a short period of actual custody of up to three months.  These submissions, which do not contend that the head sentence of two years’ imprisonment was excessive, serve to focus the issue upon what circumstances, including the personal circumstances of the applicant, make a period of six months actual custody manifestly excessive.

The applicant’s circumstances

[22] The applicant was born in September 1964.  His criminal history included convictions for offences committed about 10 years ago of fraud, attempted fraud, a minor drug offence and a breach of bail.  He was fined for those offences.  Of more relevance was a conviction for assault in 1993 for which he was fined $200 and, of particular significance were convictions in December 2006 for assaults committed in January 2006.  He was convicted of common assault and assault occasioning bodily harm arising out of a “surf rage” incident in which his son (then aged 13 or 14) was hit in the head by the surfboard of another surfer.  The applicant assaulted the other surfer and that surfer’s father or relative.  The applicant was convicted and fined $1,800 and was ordered to pay compensation of $1,200.

[23] The applicant had a good work history.  Because of bail conditions he had to leave work early twice a week and was retrenched.  He thereafter worked in the construction industry.  He financially supported a son aged 17 and a daughter aged 13.  The learned sentencing judge was told that he had engaged in “informal counselling on relationships and anger management” through friends who were counsellors.  The applicant was said to suffer from a depressive illness, but there was no material to support this and it was not suggested that he was on medication for it.  The applicant was said to have suffered from some form of “public shaming through the press and media” and his daughter had been bullied because he committed the offences and this affected his relationship with her.  Personal references were tendered from the manager of a surf club and from two friends.

The attitude of the complainant

[24] The learned sentencing judge took account of the attitude of the complainant, noting that it displayed “admirable compassion” for the applicant’s family circumstances.  Her Honour correctly observed that the Court could not be overwhelmed by a complainant’s view on sentence, whether the complainant was calling for a heavy sentence or a lenient sentence.  Appropriate account was taken of the complainant’s attitude.  As noted on the hearing of the appeal, the complainant was not in a vulnerable position, such as the victim of domestic violence, and, accordingly, his attitude might carry more weight than the attitude of a vulnerable victim.  However, the views of the complainant were of limited weight in the circumstances of a violent offence that “called for strong denunciation and a significant measure of personal deterrence”.[3]  According excessive weight to the wishes of victims carries its dangers, including the risk of inappropriate disparity in broadly similar cases.[4]

[25] Her Honour took into account the complainant’s attitude and the submission of the prosecution that was based upon it that there be no actual custody.  However, her Honour recognised that the submission made by the prosecutor did not relieve her from sentencing in a way that gave weight to the circumstances that were admitted to by a plea of guilty.[5] 

The circumstances of the offences

[26] The learned sentencing judge cannot be said to have failed to give sufficient weight to the fact that there was fault on both sides insofar as, after the applicant left the hotel, the complainant’s brother and then the complainant engaged in what was described as a “consensual fight”.

[27] The first assault on 6 November 2007 was itself a serious one and set the scene for what followed.  It was a forceful punch, delivered without warning, to the head.  It left the complainant on the ground and rendered him briefly unconscious. 

[28] Although the applicant left the hotel then walked away from it, it is not surprising that his unprovoked blow to the head of the complainant prompted the complainant’s brother to follow the applicant up the street and to confront him.

[29] The biting of the complainant involved the excessive and persistent use of force in response to a perceived concern that his eyes might be gouged.  A case of excessive response places the case into a different category to cases of a purely gratuitous assault.  However, the response was truly excessive.  The applicant did not suffer an injury to his eyes.  By the time the biting occurred the complainant did not wish to fight any more.  What might have been a reflex response of biting the finger that ended up in his mouth was persisted in with sufficient force to amputate part of a finger.  It was a grossly excessive response in the circumstance.

[30] On the hearing of the appeal the Court was referred by counsel for the applicant to other cases including “biting cases”,[6] a case involving excessive force in defence of another person causing grievous bodily harm[7] and a case of street violence.[8]  Counsel for the applicant and counsel for the respondent acknowledged the difficulty in finding comparable cases.  Some of the cases occurred prior to amendments in 1997 that increased the maximum penalty for the offence.  Before 1 July 1997 the maximum penalty for the offence was three years’ imprisonment.  Counsel for the respondent cited, amongst other authorities, R v Kite[9] as demonstrating that even for a young offender a sentence of actual imprisonment for an offence of violence in a public place is not outside of the range. 

[31] R v Tapiolas was a case in which, by majority, this Court found that the sentencing judge ought to have proceeded on the basis that the offender acted primarily in defence of another person, but that the force used was excessive.  That case involved a punch to the complainant’s face, who was running at the time, that caused him to fall to the ground as a result of which he suffered facial fractures.  Like this case it involved the use of excessive force.  The applicant in that case was 19 years old at the time of the offence.  He had no prior convictions but was convicted of an assault by punching a security guard at a hotel 10 months after the offence in question.  On appeal he was sentenced to 18 months’ imprisonment with a parole release date fixed at the date of judgment.  He had served four days’ imprisonment.  By comparison, this case involves a man aged 43 when the offences were committed.  He had been convicted in December 2006 for assaults committed earlier that year.  Although the applicant can only be sentenced for assault occasioning bodily harm, he caused serious, permanent injury to his victim in November 2007.  The act in Tapiolas was a single punch against a person who was chasing down a frightened man running away from him.  The act in this case involved the excessive use of force in amputating the tip of the finger of a complainant who was held on the ground by the applicant.  The circumstances of the offence coupled with the circumstances of the applicant supported a longer sentence than the offender in Tapiolas.

Conclusion

[32] I do not consider that the circumstances of the offence, the personal circumstances of the applicant or any other circumstances justify the conclusion that the requirement to serve six months actual custody of a two year sentence was manifestly excessive.

[33] Personal and general deterrence justified a sentence that required the applicant to serve six months of actual custody.  The applicant had previous convictions for assault, including assault occasioning actual bodily harm.  The sentence imposed upon him in December 2006 did not deter him from resorting to violence.  His violent conduct on 6 November 2007, first in punching the complainant to the head without warning, and then in using excessive force in biting the complainant with sufficient force to amputate the top of his finger, warranted a substantial period of actual custody.  The period of actual custody imposed, being 25 per cent of a two year sentence, was not manifestly excessive. 

[34] I would refuse the application for leave to appeal.