R v Kowearpta[2009] QCA 48

SUPREME COURT OF QUEENSLAND

HOLMES JA:  I'll ask Justice Fraser to deliver the first reasons.

FRASER JA:  On 28 November 2008, the applicant was convicted on his pleas of guilty of three counts of assault occasioning bodily harm whilst armed, one count of common assault, one count of going armed so as to cause fear, one count of deprivation of liberty and two summary offences.  He was sentenced to three and a half years imprisonment for the offence of assault occasioning bodily harm whilst armed and two years imprisonment for the other indictable offences.  He was not further punished for the summary offences.

The sentencing Judge also ordered the applicant to serve the balance of 10 months of a suspended sentence that had been imposed on 27 September 2007, for entering premises with intent to commit an offence, unlawful use of a motor vehicle and riot and affray.

The sentencing Judge did not fix a parole eligibility date so that the applicant will become eligible to apply for parole after he has served one half of the three and a half years imprisonment.  The 256 days which the applicant had spent in pre-sentence custody was declared to be time served pursuant to the sentences.

The applicant seeks leave to appeal against the sentence on the ground that it was manifestly excessive.  The applicant relied upon that and the five other points discussed later in these reasons.

The following summary of the circumstances of the offences is taken from a schedule of facts which was tendered by the Prosecutor at the sentence hearing without objection by the applicant's counsel.

The most serious penalty was imposed for the assaults occasioning bodily harm which the applicant committed upon his de facto partner in her home.  She had done nothing to provoke the attacks.

On 12 December 2007, the applicant punched the complainant in her face with sufficient force to knock her to the ground.  When she attempted to stand up, the applicant again punched her in the face, causing her nose to bleed.  Subsequently he threatened her with a fork, which he picked up in the kitchen.

In a struggle, the applicant bit the complainant's arm, forcing her to tear her arm out of the grip of his teeth in order to escape.  Although the applicant later apologised to the complainant, he threatened to strike her again if she sought medical attention or reported the matter to the police.  The complainant was left with a bruised and swollen left eye, a swollen and bloody nose and a bite mark to her left forearm.

In a second assault, on 25 December 2007, also in the complainant's home, the applicant punched the complainant in her face, causing her to fall on to a bed.  He then kicked the complainant in the stomach, back and ribs a number of times.

The applicant began to choke the complainant with such force that she momentarily "saw black".  He then released his grip around her throat.  The applicant also bit the complainant on her arms and one shoulder and punched her in the back of her head.  Subsequently he picked up a pair of scissors and stabbed the complainant in her left arm, causing a puncture wound.  He subsequently punched the complainant in the nose and again in the mouth.  When the applicant fell asleep the complainant ran away and sought assistance at a medical centre.  She had a swollen nose, swollen and bruised left cheek, cut lip and gums, bruising to the back of her head, ribs, back and stomach, four bite marks to her arms, a puncture wound to her left arm and a sore ankle.

When the applicant was interviewed by police shortly after the second assault, he claimed that he was too intoxicated to recall either of the assaults.  The applicant was charged and released on bail.

On 12 March 2008, the applicant intercepted the complainant as she was walking home.  He forced her into a laneway, gripping her arm, and threatened her with a knife.  The applicant led the complainant to his mother's house where he forced her to stay in a bedroom, despite her continual and tearful pleas to be allowed to leave.  He forced the complainant to stay in the bedroom for about 45 minutes whilst they argued about their relationship.

A domestic violence order had been made against the applicant on 20 February 2008, but he had not been served with a copy of the order at this time.  The applicant repeatedly punched the complainant in the face, leaving her with a small laceration to her left cheek and a laceration inside her mouth.  After the complainant fell on to the bed and attempted to shield herself, the applicant took off his belt and beat her across her back, buttocks, leg and arm, leaving large welts.  She was in severe pain at the time.  Subsequently, the applicant escorted the complainant to the medical centre to seek medical treatment.

The applicant was arrested on 17 March 2008.  He declined to participate in an interview about these offences.  However, he entered an early plea of guilty.

The applicant was 35 and 36 years of age at the time of the offences and 36 years of age at sentence.  He had a very bad and lengthy criminal history, which included many offences of dishonesty and of violence.  He was first imprisoned in 1989 when he was 17 years old and he appears to have been sentenced to terms of imprisonment for offences in most of the following years up to and including 2008, save for those years in which he was serving a term of imprisonment.

In 2001, he was given terms of imprisonment of two years and three years for assaults occasioning bodily harm and for wounding, and a declaration was made that the applicant had committed serious violent offences.

In 2005, he was imprisoned for two years and six months for a robbery with actual violence whilst armed and in company committed in 2004 and lesser concurrent terms were imposed for a variety of other offences including assault, assault occasioning bodily harm whilst armed and serious assault.

The applicant committed the subject offences whilst he was drunk.  His counsel in his submissions at sentence suggested that alcohol and tensions in the Aurukun community where he lived contributed to his pattern of violent offending.

The sentencing Judge referred to the applicant's long criminal history and described the offences as "another of those cases involving alcohol and violence, often violence in a domestic situation."

The Judge gave credit to the applicant for his early plea of guilty, but observed that beyond that, there was not a great deal that could be said for him.

The applicant complains that after he assaulted the complainant on 24 December 2007, the police "put an extra charge on me for assault on 12 December 2007."  He also contends that he was not guilty of the offence of deprivation of liberty on 12 March 2008 and that the complainant had said as much in her statement.  However, the applicant has shown no basis for setting aside his pleas of guilty to both offences, nor any reason to disregard the uncontradicted evidence of the circumstances in which the offences occurred which was put before the sentencing Judge.

The applicant argues that the sentence was manifestly excessive because his offences concerned only a domestic dispute between his de facto wife and himself.  Another point he makes is that the complainant's injuries were not severe and the complainant was effectively treated at the medical clinic with dressings and Panadol.

That the complainant's injuries were not more serious was a relevant matter for the sentencing Judge, and there is no reason to think that was not taken into account.

As to the applicant's other point, the seriousness of his offending is not lessened by the fact that he characterises it as a "domestic dispute."  More accurately, the applicant violently assaulted a defenceless woman in her own home and later deprived her of her liberty by forcing her from a public place and again assaulted her.

The applicant's contention that the sentence is manifestly excessive is a difficult one to maintain in circumstances in which his counsel submitted to the sentencing Judge that a sentence of three and a half years was appropriate and that an overall sentence of some four years, including the activated suspended sentence, was appropriate.  See R v Frame [2009] QCA 9.

In view of the applicant's bad record for offences of violence, and the unprovoked nature of these vicious offences, this was a case in which, in addition to deterrence, the protection of the community assumed significance in sentencing.  Although these offences were not the most serious examples of the offence under Section 339(3) of the Criminal Code, for which the maximum term of imprisonment is 10 years, the three and a half year term of imprisonment could not be said to be manifestly excessive. 

That conclusion finds support also in a sentence of three and a half years imprisonment with a recommendation of eligibility to apply for parole after serving eighteen months imposed by this Court in an Attorney-General's appeal in The Queen v Bell; ex parte Attorney-General [2000] QCA 485.

The applicant asserted in argument that the complainant did not want to press charges against him, but that the police made her make statements.  However, the schedule of facts tendered at the sentence hearing records that the complainant reported the assaults at 12 and 25 December to the police on 25 December 2007.

The applicant also seeks to appeal against the activation of the 10 month suspended sentence.  There is however no basis for thinking that it was unjust for the sentencing Judge to activate that sentence.

I would refuse the application for leave to appeal against sentence.

HOLMES JA:  I agree.

DAUBNEY J:  I also agree.

HOLMES JA:  The application for leave to appeal against sentence is refused.