SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  I agree that the application for leave to appeal against sentence should be dismissed for the reasons given by Margaret Wilson AJA.

[2]  MARGARET WILSON AJA:   The applicant pleaded guilty to one count of doing grievous bodily harm, three counts of assault occasioning bodily harm whilst armed, one count of assault occasioning bodily harm whilst in company and two counts of common assault.  He was given a head sentence of six years.  Pre-sentence custody of 451 days was declared time already served under the sentence.  No parole eligibility date was set.

[3] The applicant seeks leave to appeal against the sentences on the ground that the failure to set an early parole eligibility date made them manifestly excessive.

[4] The applicant is a young man – 18 years at the time of offending, and 19 years at sentence.  He committed these offences in the course of gratuitous street violence on two discrete occasions, 2 March and 20 June 2009.

The offences committed on 2 March 2009

[5] The complainant was a 17 year old youth.  He and the applicant had not met, although they knew each other through a mutual friend and the exchange of text messages.  By text messages they arranged to meet and fight to sort out their differences. 

[6] One afternoon the complainant was waiting to catch the school bus home when the applicant approached him and asked him his name.  The complainant told him his name, whereupon the applicant pushed him in the upper chest area.  A 16 year old friend of the applicant, DH, grabbed the complainant around the throat and pushed him.  Throughout the incident the complainant tried to arrange a more suitable time for them to sort out their differences.  A school teacher approached, and as a result the complainant got on the bus.  As he did so, the applicant said to him:

“I’m following your bus to your stop.”

[7] The applicant got into a Nissan Pulsar sedan, which followed the school bus.  There were several others in that vehicle.  When the complainant got off the bus, the occupants of the car shouted at him.  He walked away and the car drove slowly behind him.  When the complainant became anxious and tried to get away from the vehicle, it stopped and the applicant and DH got out and ran towards him.  The car parked in front of him and another male, wielding a baseball bat got out and told him to wait for the applicant and DH.  The complainant stopped and the applicant ran towards him and punched him twice in the face.  The applicant tried to hit him again but missed.  DH punched him twice to the head and once to the back of the head.  The incident came to an end when someone else intervened.  The complainant had suffered a split lip, swelling and bruising to the right eye. 

[8] Asa result of this whole incident, the applicant was charged with common assault (at the first bus stop) and assault occasioning bodily harm in company (at the second bus stop).  On each count he was sentenced to six months imprisonment, the sentences to be served concurrently.  DH was dealt with in a Magistrates Court where he was given a 12 month good behaviour bond with a $900 recognisance.

The offences on 20 June 2009

[9] The second incident occurred on a Saturday night in a suburban street in Belmont. 

[10]  A 16 year old girl, Alexandra Ferguson, had a party at her family home.  It was held in the backyard of gated premises, commencing at about 7.00 pm.  Her parents displayed a commendably responsible attitude in relation to the party.  They imposed a limit of 20 guests and a condition that anyone leaving the party could not return.  They supervised throughout the night. 

[11]  Most of the guests were female.  The applicant came with one of Alexandra Ferguson’s school friends, who had met him a couple of weeks earlier.  They arrived with another of the applicant’s friends, a male, about 8.00 pm.  Neither the applicant nor his friend behaved inappropriately at the party.  At some point the applicant and his friend left.  The applicant returned later, and asked Mrs Ferguson for permission to re-enter to fetch his bag.  She said:

“Yes, get your bag and go.”

Five or 10 minutes later Mrs Ferguson heard a voice coming from the front driveway saying:

“Come on, Terrance, we’ve got to go.”

[12]  Eighteen year old Alex Towers lived next door to the house where the party was held.  That evening he had a number of friends to his place, including Mitchell Michael.  They were drinking, and intended to go into the Valley.  About 11.00 pm Michael approached the gate of the premises where the party was being held, and asked if he could come in to see his cousin who was a guest at the party.  Mrs Ferguson declined permission. 

[13]  There were four males in the background.  Mrs Ferguson thought they were friends of Michael, but in fact they were friends of the applicant.  They asked if they could come in.  She said “No”, whereupon they turned around and left.  Within a short time there was an outburst of violence in the street.

[14]  Michael was walking back to the house next door when a car driven by the applicant drove along next to him.  He said to the occupants of the car:

“Have a good night boys.  Don’t cause too much trouble.”

One of the occupants yelled back, “Fuck you” and Michael responded in kind.  A beer bottle was thrown from the car and  Michael swore again.  The car stopped and the applicant, who was armed with a metal bar about 10 centimetres in diameter, and three others alighted.  The applicant attempted to strike Michael in the head, but he avoided the blow.  The applicant swung the bar at Michael again, this time hitting him in the right side of the face.  Michael retreated and called out, and others from the house next door came to the scene.

[15]  The applicant went to the boot of his car where he obtained a wooden handled machete with a blade of about 70 centimetres.  He pursued Michael who hid behind a car, and then he turned his attack on others who retreated to the front door of the residence.  He swung the machete at one youth, Andrew Smith, missing him before lunging at him again and just skimming his arm with the machete blade.  Towers was attempting to open the front door to get away from the applicant when he was struck with the machete on his right shoulder.  He turned to face the applicant who swung the machete again but did not connect with either Smith or Towers.  Towers sustained injuries amounting to grievous bodily harm – an open fracture of the scapula, with a wound about 10 centimetres in size.

[16]  Another youth, SY, who had been at the party, ran to the scene and came face to face with the applicant in front of Tower’s residence.  The applicant struck him three times in the back of his right upper leg with the machete.  He sustained a superficial 10 centimetre laceration through the full thickness of the skin. 

[17]  Then the applicant confronted Jayden Power who had also been at the party but had come out on to the street after hearing the commotion.  He ran at Power and struck him with the machete in the left hip.  Then he swung the machete upwards.  Power moved backwards but the blade clipped his right neck and jaw.  The applicant swung the machete again, but Power blocked the blow, grabbed the blade with his hand and managed to wrestle the machete from the applicant.  While doing so he was struck three times to the jaw by one of the applicant’s friends.  Power held the applicant in a choke-hold but released him when again struck by one of the applicant’s friends.  Power kept possession of the machete and later gave it to Mrs Ferguson.  He suffered a cut to his left hip, bruising to his left eye, a cut to his neck, cuts over his knuckles and grazed knees.

[18]  Mrs Ferguson was outside her residence attempting to get all of the guests back inside.  She confronted the applicant in the street who ran at her, ripping his shirt off and yelling:

“Give me my knife back or I will kill you.” 

He stopped three metres away and again demanded the return of the machete.  At this time his car reversed around the corner and an occupant yelled at him to go.  He ran to the car, got into the driver’s seat and drove away before police arrived.  Mrs Ferguson was not injured.

[19]  The next day the police attended at the applicant’s residence.  He consented to a search of his room, and police seized clothing and a mobile phone.  He was taken to the police station but declined to participate in a record of interview.

[20]  The applicant pleaded guilty to five offences committed on 20 June 2009.  The most serious was doing grievous bodily harm to Towers.  There were three counts of assault occasioning bodily harm whilst armed which related to Michael, SY and Power and one count of common assault which related to Mrs Ferguson.

[21]  Defence counsel told the sentencing judge that alcohol had played a significant part in his conduct on 20 June 2009.  He had been drinking heavily and was heavily intoxicated.  He had started drinking in about grade 11, and his consumption had quickly escalated from small amounts to the extent that he was drinking a carton of beer on both Friday and Saturday nights and becoming very heavily intoxicated.  That was no excuse for his behaviour but it was some explanation for it.  He had completed a number of courses while on remand, including “Ending Offending”, in which he recognised that he had an alcohol problem and that he needed to stop drinking.

[22]  At sentence the prosecutor submitted that the applicable range was six to seven years imprisonment with a declaration of a commission of a serious violent offence.  Defence counsel submitted that the range was five to six years with no declaration.

[23]  The sentencing judge reserved his decision. 

[24]  When the sentence proceedings resumed, his Honour observed that the offences in June 2009 were episodes of gratuitous street violence involving the use of a weapon.  The victims were innocent people going about their lawful business in a suburban street, and it was fortunate that greater harm had not been done.  His Honour said that deterrence was a significant factor, as was the need to punish and to reflect community denunciation of offending of this nature.  He noted that the plea of guilty was a timely one.  Youth and prospects for rehabilitation were significant factors.  The applicant was young, his only criminal history consisting of one minor offence in no way similar to this offending.  The offending was out of character, and was remorseful.  The applicant had the support of his family.

[25]  His Honour noted that this Court had said that the sentencing process is a single integrated one in which the combination of all available options needed to be considered, and concluded that the only appropriate penalty was imprisonment for a long time.  For the offences committed on 20 June 2009, he imposed terms of six years for the grievous bodily harm and each of the charges of assault occasioning bodily harm whilst armed, and 12 months for the common assault.  For each of the offences committed on 2 March 2009, he imposed six months imprisonment.  He ordered that all sentences be served concurrently.  He declined to make a serious violent offender declaration but expressly fixed no parole eligibility date.  He declared the pre-sentence custody to be time already served under the sentence.

[26]  In imposing that sentence, the primary judge took account of all relevant factors.  Indeed, there was no criticism of his sentencing apart from his failure to set an early parole eligibility date – which was not sought by either counsel. 

[27]  Because his Honour declined to set an early parole eligibility date, the applicant will have to serve 50 per cent of his sentence before becoming eligible for parole.[1]

[28]  Because his Honour imposed terms of six years imprisonment for the offences of doing grievous bodily harm and assault occasioning bodily harm, it was open to him to declare that the applicant had been convicted of one or more serious violent offences.[2]  Had he done so, then the applicant would have had to serve 80 per cent (or such longer proportion as his Honour ordered) of the sentence before becoming eligible for parole.[3]  That would have made the sentence a substantially heavier one than it was. 

[29]  On appeal counsel for the applicant relied upon the decision in R v Honeysett; exparte A-G (Qld).[4]  In that case the applicant was convicted and sentenced as follows:

Parole was recommended after two and a half years.  The offender sought leave to appeal on the ground the sentences were manifestly excessive, and the Attorney-General appealed against the inadequacy of the sentences, particularly the recommendation for early parole.  At the time of committing the offences the offender was 19 years of age.  A year earlier he had committed an offence of violence, and a psychologist had reported on his propensity to resort to violence.  On 15 April 2009 the applicant punched the complainant and rendered him unconscious because the complainant had failed to repay $20 said to be owed to the offender’s girlfriend.  The following day he sought out the complainant, and kicked in the door of his home and beat him, losing control, and causing injuries including fractures to the complainant’s eye socket and sub-arachnoid haemorrhage.  He co‑operated with authorities and pleaded guilty after a full hand-up committal.  Despite his youth and good work record, this Court upheld the sentence.  By majority, it dismissed the application for leave to appeal and allowed the Attorney-General’s appeal only to the extent of correcting a technical error in making a recommendation for parole rather than fixing a parole eligibility date.  That was not a case of gratuitous street violence against unsuspecting members of the public like the offences committed by the present applicant.

[30] R v Thomason; ex parte A-G (Qld)[5] was a case of gratuitous street violence in which the offender inflicted a one centimetre slash wound to the apex of the left ventricle of the complainant’s heart as well as a neck wound.  The offender pleaded guilty to doing grievous bodily harm.  He was an intoxicated 18 year old with a criminal history  which included two offences for non violent offences for which he was fined, burglary for which he was given community service which he breached resulting in a fully suspended term of imprisonment, and motor vehicle, wilful damage and domestic violence offences committed whilst on bail and which activated the suspended term of imprisonment.  He was sentenced to four and a-half years imprisonment with parole eligibility being set 14 and a half months after the commencement of the term.  On appeal by the Attorney-General the sentence was increased to six years with a declaration of the commission of a serious violence offence.

[31]  In R v Lewis; ex parte A-G (Qld)[6] a fight between different groups of young men broke out in a park following some smart, possibly racist, remark.  The offender brandished a samurai sword, and the complainant tried to disarm him.  The offender continued to move towards the complainant, thrusting the sword towards him.  When the offender took a large swing at the complainant, the complainant rushed in close to the offender, punching him five or six times.  The offender then struck the complainant at least four times with the sword.  The complainant suffered a number of severe injuries including a deep laceration to the left wrist which severed an artery, two nerves and muscle tissue.  He was left with a large gaping laceration in the left thigh with severed muscle and severed sciatic nerve.  As a result he suffered restricted movement of his left hand, loss of feeling below the knee, and a withered leg which may require amputation.  The offender was an 18 year old with an extensive criminal history for offences of dishonesty as well as assault occasioning bodily harm.  He was convicted of doing grievous bodily harm and sentenced to three and a-half years imprisonment with a recommendation for post-prison community based release after 15 months.  On appeal by the Attorney-General, the sentence was increased to seven years and he was declared to have committed a serious violence offence.

[32] R v Bryan; ex parte A-G (Qld)[7] was another case of gratuitous street violence.  The offender was a 21 year old man adversely affected by drugs.  The complainant suffered an extensive wound of the left lower chest, extending from the left of the sternum to the left of the nipple, and extending through the skin and muscle into the left chest cavity such that his heart and lung were visible through the wound.  He also sustained a laceration about 10 centimetres long to the upper left arm extending through the skin and into the muscle, and a laceration about three centimetres long of the upper left arm through the skin and into the subcutaneous fat.  The main wound to the chest missed the internal mammary artery by only about three millimetres.  There was a laceration to the lower lobe of the lung, but the diaphragm was not lacerated.  The offender had no previous criminal history of violence although he had committed minor property offences.  He was sentenced to four years imprisonment suspended after 12 months with an operation period of five years.  On appeal by the Attorney-General against the leniency of sentence, this was increased to six years.  Williams JA commented[8] that the circumstances would have justified the making of a declaration of a commission of a serious violence offence, but no declaration was asked for at sentence or on appeal.

[33]  The present applicant’s violence on 20 June 2009 was unprovoked and random, although with an element of pre‑meditation – taking weapons in a car when attending a teenage party.  There was a persistence about his conduct.  He used two weapons against four complainants, and inflicted a serious injury on at least one of the complainants.

[34]  That an offender has pleaded guilty is a factor to be taken into account in his favour in arriving at the appropriate sentence.  This is because the plea reflects a willingness to assist the administration of justice, and it may also be indicative of remorse.  The plea is frequently taken into account by fixing an early parole eligibility date, but it need not be taken into account in this way.  It can be sufficient to use it as a factor in setting the term of imprisonment.  That is what the sentencing judge did in this case.

[35]  It was clearly open to the sentencing judge to make a serious violence offence declaration.  It is implicit in the conduct of defence counsel in not seeking an early parole eligibility date[9] that he recognised the real risk that a serious violence offence declaration would be made, and that there was no real prospect of the judge fixing an early parole eligibility date to take account of the timely pleas of guilty.

[36]  Given the circumstances of the present offending and the conduct of the case before the sentencing judge, the submission that his Honour erred in not fixing an early date for parole eligibility was a bold one.  In R v Carter[10] Keane JA said:-

“While the imposition of a proper sentence is the responsibility of the sentencing judge, the circumstance that the sentence imposed accords with the position taken by the applicant at sentence means that the applicant's prospects of obtaining leave to appeal to argue that the sentence is manifestly excessive should usually be regarded as poor.”

[37]  His Honour made a similar observation in R v AAF,[11] when he said that where the sentence imposed was in accord with that proposed on behalf of the offender, a contention that leave to appeal should be granted because the sentence was manifestly excessive would be difficult to sustain, at least in the absence of exceptional circumstances.  In R v Walsh[12] his Honour referred to the need for special circumstances.  No such circumstances have been made out in the present case.

[38]  The application for leave to appeal against sentence should be dismissed.

[39]  FRYBERG J:  I agree with Margaret Wilson AJA, for the reasons her Honour states, that the sentences imposed on the applicant were not manifestly excessive.  The application should be dismissed.