R v Bierton[2009] QCA 68

SUPREME COURT OF QUEENSLAND 

DOUGLAS J:  The applicant for leave to appeal against his sentence pleaded guilty in the District Court to a charge of unlawfully doing grievous bodily harm.  He was sentenced to three years’ imprisonment suspended after nine months for an operative period of three and a half years.

He was an 18 year old who on 16 December 2007 was attending a club with his father and a friend of his father.  They had been drinking alcohol as had another group at the club, which included the complainant, a 21 year old young man.

At about 2.39 a.m. on that Sunday morning there was a confrontation between a member of the complainant's group and the applicant's father.  Versions differ as to what led to the confrontation but there was said to be a heated verbal exchange leading to a brief physical altercation between a man named Sean Baker and the applicant's father's friend and the applicant's father.

Apparently Mr Baker was a large man and on the applicant's case, was assaulting the applicant's father.  The applicant then threw the glass he was holding towards Mr Baker, intending to do that.  It did not hit him, probably because Mr Baker dodged and avoided it.  It did hit the complainant who was seated behind Mr Baker.  In hitting him it caused some very serious injuries as the glass shattered, causing lacerations to his face and eye and leaving four or five fragments of glass lodged in his eye.  He lost the sight in his right eye, having suffered a right penetrating eye injury with prolapsed uveal tissue and total retinal detachment, right lower eyelid avulsion, a small laceration involving the left lower eyelid and a left lateral subconjunctival haemorrhage.

He had an operation on the same day for the removal of the glass fragments in his eye and the repair of the eye injury but was left blind in that eye because of irreparable retinal detachment.  His eye will continue to shrink and he will require a prosthetic eye within two years of the sentence.

The learned sentencing Judge was addressed on the basis that the applicant did not intend the result that occurred although clearly he did intend to throw the glass.  The prosecutor submitted that the appropriate range of sentence was three to four years imprisonment and that it would be within the Judge's discretion to suspend the sentence after the accused had served one-third of that sentence.

The experienced defence counsel did not disagree that the sentences imposed in similar matters in this Court suggested a range of three to four years as a potential head sentence and 12 months actual imprisonment.  It was submitted, however, that this case could be distinguished from other cases described essentially as a "king hit with a glass" still in the assailant's hand, because the applicant was scared and intended to throw the glass at the large man assaulting his father and had not retained possession of the glass as a weapon to use directly.  In that context it was submitted that an intensive correctional order for a period of 12 months would have been the appropriate sentence. 

The learned sentencing Judge referred both during the submissions and in his reasons, however, to the decision of this Court in R v Amituanai [1995] QCA 80 for the principle that the punishment must depend to some significant extent on the nature of the damage that the victim happens to sustain, relying upon statements by Pincus JA to the effect that the risk that a blow, which might by good luck have caused little damage, in fact has caused catastrophic results is a risk shared by the victim and the offender. 

Taking those submissions into account therefore, his Honour formed the view that the authorities to which he had been referred established that the appropriate range of sentences for grievous bodily harm of this level of seriousness was in the order of three to four years.

The applicant's youth, his lack of a criminal history, his early plea of guilty, his acknowledgement of his responsibility and his co-operation with the system of justice, coupled with some particular matters relating to his personal circumstances raised in a psychologist's report, led the learned sentencing Judge to the view that he should impose a sentence of three years, suspended after a period of nine months.

In R v Berryman [2005] QCA 471, Williams JA, giving the judgment of the Court, examined a number of authorities dealing with the appropriate sentence for charges of grievous bodily harm in circumstances such as these, taking the opportunity to compare them with similar offences where the charge was one of unlawful wounding.

Williams JA said at paragraph [16], in respect of the decisions on unlawful wounding, that sentences between one and three years imprisonment had been imposed, depending on the particular circumstances of each case, in a series of cases where the wounding had been caused by the use of a glass in a hotel. 

He referred in particular to the reasons of Thomas JA in R v Toohey [2001] QCA 149.  Thomas JA had also said in that case that a sentence in the range of 18 months to two years was quite common, although a more serious sentence could be imposed where aggravating features existed, such as serious disfigurement.  Such a serious disfigurement and injury has occurred here, because of the nature of the damage to the complainant's eye. 

Its consequences on him are described graphically in the victim impact statements provided both by him and by his father.  Clearly he has suffered and will continue to suffer very seriously from this event.  He was then only 21 and about to qualify as an electrician.  He has since qualified and has managed to retain his employment at Q-Build.  His injured eye constantly weeps, however, and the lack of vision from it has inhibited what he can do in his work and has affected his social life significantly.  He has been diagnosed with a major depressive disorder and post traumatic stress syndrome.  He had to take months off work and has had numerous visits to doctors with significant associated expenses.  He can no longer play contact sports and has suffered a significant change in his personality according to his parents.

The learned sentencing Judge was clearly aware of these relevant circumstances affecting both the applicant and the complainant and took them into account in his reasons.  The only ground of appeal is that the sentence imposed is manifestly excessive.  It does not seem to me that that is the case when one considers the authorities.  Even though the particular result that occurred was not intended, it is an extremely likely result if one deliberately throws a glass at someone in a crowded bar.

The very serious consequences for the complainant were relevant and taken into account by his Honour in assessing the need for both personal and general deterrence and the need for proportionality of the sentence to the seriousness of what was involved.  Those matters were carefully considered by him and it does not seem to me that any error has been shown.

Where, as here, it was conceded at the hearing that a three year head sentence, suspended after 12 months, could be appropriate but submitted that an intensive correction order which could be made for no more than 12 months, was more appropriate, it is difficult to contend that a three year sentence suspended after nine months, is manifestly excessive.  See the statement by Keane JA in R v Walsh [2008] QCA 391 at paragraph [23].

Accordingly I would dismiss the application for leave to appeal against sentence.

CHESTERMAN JA:  I agree.

MULLINS J:  I agree.

CHESTERMAN JA:  The order of the Court is that the application is refused.