SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  I agree with Dalton J's reasons for allowing the application for leave to appeal against sentence but dismissing the appeal.

[2]  MUIR JA:  I would also allow the application for leave to appeal and dismiss the appeal for the reasons given by Dalton J.

[3]  DALTON J:  This is an application for leave to appeal against sentence after the applicant was acquitted by a jury of the offence of doing grievous bodily harm with intent, but convicted on the alternative charge of unlawfully doing grievous bodily harm simpliciter.  The applicant was employed as an offsider by the complainant truck owner and driver on an interstate trucking journey.  They had been friends for 25 years.  On the eighth night of the journey the applicant and complainant were staying overnight in a motel room.  The applicant struck the complainant on the head with a hammer causing very serious permanent brain damage.  The medical evidence was that there were at least two blows, both of which resulted in complex fractures to the skull and both of which, independently of each other, were sufficient to have resulted in grievous bodily harm.  The prosecution case was that the applicant had struck the complainant on the head with the hammer without warning, as the complainant lay on his bed.  This case was based upon the nature of the injuries; statements made by the applicant to emergency service personnel soon after the offence, and forensic evidence as to blood staining at the scene. 

[4] The complainant was unable to give evidence by reason of the effects of his injuries.  The applicant gave evidence.  He raised three matters: involuntary act as to the first of the hammer blows; self-defence, and lack of intent to do grievous bodily harm.  He swore that he and the complainant argued, and the argument turned into a physical fight in which neither used a weapon.  The applicant said he pushed the complainant backwards so that he fell onto the floor, and then he (the applicant) began to pack his belongings with a view to leaving the motel.  The complainant then approached him with a hammer held in a raised arm.  He and the complainant struggled and fell onto a bed with the applicant lying on top of the complainant.  Both he and the complainant were holding the handle of the hammer, each trying to wrest it from the other.  When the complainant let go of the hammer it somehow recoiled, not away from the complainant, but towards him, so that it struck the complainant’s head once.  That is, the first blow was without the applicant’s volition.  The applicant then immediately struck the other side of the complainant’s head with the hammer, he said, in self-defence.

[5]  The trial judge directed the jury as to the defence of self-defence.  She directed the jury as to s 23(1)(a) of the Criminal Code in relation to the first hammer blow, and instructed that, in order to find the applicant guilty of grievous bodily harm with intent, the jury needed to find that the applicant intended to do grievous bodily harm. 

The Factual Basis adopted for Sentencing

[6] The jury’s verdicts of acquittal on the charge of grievous bodily harm with intent, but guilty on the charge of grievous bodily harm simpliciter meant that the jury: (a) rejected the defence of self-defence, and (b) came to the view that the Crown had not proved the applicant intended to cause the grievous bodily harm he in fact caused.  For the purpose of sentencing, the primary judge was obliged to make findings on matters of fact which were necessary for sentencing and which had not been resolved by the jury’s verdict.[1]  The main constraint upon the sentencing judge was that her findings of fact needed to be consistent with the verdict of the jury.[2]  There is no power to sentence on a factual basis inconsistent with a fact which is essential to the jury’s unanimous verdict.[3]  In Queensland, s 132C(3) of the Evidence Act 1977 provides that a sentencing judge may impose sentence on a factual basis if, “satisfied on the balance of probabilities that the allegation is true.” 

[7] The jury’s verdicts were silent as to whether the first blow to the complainant’s head was voluntary or not.  In sentencing, the primary judge acknowledged that the jury verdicts were consistent with the first blow not being a voluntary act, but noted she was not obliged to sentence on that basis.  The judge sentenced on the basis that both the first and subsequent blows were voluntary – she described the applicant’s description of how the first injury came about as, “completely ludicrous.”  That finding was consistent with the jury verdicts, and was plainly open to the sentencing judge on the basis of the evidence at the trial.

[8] The applicant’s assertion was that when one of two men, both struggling to wrest a hammer from the other, released his grip, the hammer moved involuntarily, not towards the man who had won the struggle, but in the other direction.  The physics involved in this is not readily comprehensible.  The applicant’s evidence at trial was difficult to understand in this regard.  It is plain that the difficulty does not just stem from the fact that this Court can only read the transcript without the benefit of hand gestures and the like.  There was repeated questioning by the applicant’s own counsel to elicit some comprehensible version at trial.  Questions were posed by the primary judge during the applicant’s evidence‑in‑chief, to attempt to clarify what he was saying, beginning with the comment, “Well, I don’t understand that…”.  The applicant was not more articulate in cross‑examination, and once again there were questions from the trial judge designed to have him clarify what he was saying.  The applicant made no substantive response to the obvious proposition put in cross‑examination that, in the circumstances he described, the hammer would travel towards him, not towards the complainant, when the complainant released his grip.  He did not engage with such questions, merely answering in terms such as, “I can’t say.” 

[9] Defence counsel submitted to the sentencing judge that she should sentence on the basis that the applicant had been acting to defend himself but in the course of doing so, used a disproportionate response.  This scenario was consistent with the jury verdicts in that self-defence was not available to the applicant, but the circumstances relied upon as self-defence explained why the jury had reached the conclusion that there was no intention to cause grievous bodily harm – the applicant had acted without any specific intention in the course of a struggle.  The sentencing judge acknowledged that this was a version of events consistent with the verdicts, but rejected it as a factual basis for sentencing.  She said that the applicant’s version of events as to self-defence was, “unreliable and just too improbable to accept.”  There was ample basis for the primary judge to reject the evidence of the applicant as to self-defence as an evidentiary basis for sentencing, as the following discussion shows.

[10]  The evidence at trial was that when the ambulance officers arrived at the motel the complainant was lying on the bed, with his head on top of the pillow.  He was bleeding profusely from wounds to the head.  There was copious blood on the pillow and the “head end” of the bed.  There was blood sprayed across the back wall above the bed-head and on the ceiling above the bed. 

[11]  After initially taking his possessions, locking the motel room, and leaving the motel, the applicant rang his girlfriend and, apparently, discussed the matter with her.  He then called an ambulance.  There was a subsequent call by the applicant to a police communications centre and later that night, statements made by him to police.  In none of these statements did the applicant say that he had been physically attacked by the complainant.  According to her contemporaneous notes, the applicant told the ambulance operator that he had, “hit his boss in the head with a hammer”; “his boss was abusing him so he covered his face with a pillow, then hit him with a hammer.”  The medical evidence was that the blows to the complainant’s head were unlikely to have been delivered through a pillow.

[12]  To the police that night the applicant said, “My boss, why wouldn’t he stop.  He just kept pushing me.  He wouldn’t leave me alone.  I hit him with a hammer.”  He alleged that the complainant had verbally abused him continuously over the eight days of the trip.  He conceded at trial that this was not true and that he had had one or two disagreements with the complainant on the trip, nothing more.  He could not offer an explanation as to why he lied to police, other than that he was in an emotional state.  To his discredit, in cross-examination the applicant tried on two occasions to say that his complaints of being abused were just another way of describing the physical attacks he gave evidence of on the night of the offence.

[13]  The applicant described quite a physical fight between himself and the complainant before the complainant came towards him with a raised hammer.  He said he thumped the complainant hard in the chest; that he pushed the complainant backwards so that he fell backwards over the bed and onto the floor.  He said that when the complainant came at him with the hammer he grabbed the complainant around the waist, “charged him”, “wrestled” with him, and pushed his shoulder up under the complainant’s left armpit.  The evidence was that there were no other injuries but the hammer blows to the head on the complainant’s body.  The applicant had no sign of physical injuries at all. 

[14]  The situation which confronted the primary judge after she had rejected the applicant’s evidence as to the matters going to self-defence, was that she was left with the jury’s verdicts which precluded her sentencing on the basis that the applicant intended to cause grievous bodily harm, but no credible explanation from the applicant as to what had occurred between him and the complainant on the night of the offence.  That did not mean that the sentencing judge was wrong to reject the applicant’s evidence as to self-defence: she was not compelled to accept evidence which she did not believe simply because if she did not, the factual basis for the jury’s acquittal on the charge of intentionally causing grievous bodily harm was not apparent.  She sentenced on the basis that the jury’s verdicts were a result of a conclusion that the applicant must have acted impulsively and therefore without intent.  She said:

“It seems very clear, from that other evidence, that Mr McClure was in his bed when you struck him.  Whether he was asleep or preparing for sleep I cannot say, but I am satisfied that he had no warning of your attack.  He did not have time to even get off of the pillow.  It was a brutal and cowardly attack.  You deliberately swung the hammer down at least twice with moderate force.  His skull was smashed in on both sides of his head.  His brain was exposed.  Fragments of skull were driven into brain matter.  Mr McClure almost died.

The jury was not satisfied that you meant to cause grievous bodily harm.  The conclusion that I draw from that is that you acted impulsively without forming the specific intent.  Mr McClure must have done or said something that you did not like.  While provocative behaviour by a victim can mitigate this kind of offence, the burden of proving it is on you.  Your unreliability makes it very difficult to now reach a conclusion about Mr McClure’s contribution or otherwise, other than to recognise that you reacted without the intention for serious harm.”

[15] The applicant submitted that the repeated hitting of the complainant as he lay sleeping or preparing for sleep upon his bed, with the degree of force necessary to cause the injuries in fact suffered by the complainant, was not a factual scenario available to the sentencing judge.  This was said to be because, given the lack of evidence of provocation immediately preceding the attack, and the brutality of the attack, that scenario was only consistent with an intention to cause grievous bodily harm.  The difficulty with that submission is that the learned sentencing judge did assume some provocation, whether immediately preceding the attack or not, which caused the applicant to act as he did on impulse, without forming a specific intent.  It is true that there was no evidence of such a thing once the applicant’s evidence as to self-defence was rejected – the impulse for the attack was effectively unexplained.  So it must be in the vast majority of cases where the accused elects not to give evidence.  The accused was not obliged to explain himself, and the jury was entitled to conclude that the Crown had not proved intent.  I cannot see that the sentencing judge erred because she assumed in the applicant’s favour some provocation not established on the evidence at trial.  I conclude that the sentencing judge did not err in sentencing on the basis of the findings of fact she made.

Sentence Manifestly Excessive

[16]  The second ground of appeal was that the sentence was manifestly excessive.  The sentence imposed was one of eight and a half years’ imprisonment with a parole eligibility date of 12 August 2014.  This effectively provided for four years’ imprisonment before the applicant was eligible for parole having regard to declared pre-sentence custody.

[17]  The principle established by cases such as R v Amituanai[4] and R v Thomason; ex parte A-G (Qld)[5] is that, generally speaking, where a complainant is left with a substantial residual disability, the offender can expect to receive a more severe penalty.  The blows inflicted to the complainant’s head in this case smashed his skull and the linings to his brain.  His brain was exposed and he bled severely.  He would have died had help not arrived as soon as it did.  The permanent injury to the complainant is devastating.  From a man who ran his own trucking business, the complainant has been reduced to a state where he cannot be left alone to prepare a meal.  MRI shows that he has suffered widespread cerebral trauma and his mental functioning is very much reflective of this.  He has, according to his treating doctors:

“Marked to severe deficits in relation to general intellectual skills.  This included highly concrete mental reasoning, very poor problem- solving, and markedly compromised access to general semantic information.”

[18]  The complainant is impulsive and responds in a disinhibited manner to behavioural cues, even when he is aware that this is inappropriate.  He has markedly impaired attention and concentration and moderate to marked reduction in information processing speed.  He cannot comply with simple requests such as, “when I knock once, you knock twice”, even when repeatedly coached and corrected.  He cannot be trusted with money without supervision.  His doctors warn that tasks such as “using the cooker” present significant risks to him.  He reportedly spends his days watching DVDs on the television.  He will watch the same film immediately after having seen it, without realising that this is unusual.  He is insightless as to his cognitive deficits, which means that he is not co-operative with rehabilitation or respite care which might lessen the burden of care on his wife.

[19]  In her victim impact statement, the complainant’s wife made reference to the complainant’s suffering permanently from a degree of paralysis, although he is able to walk.  He has a seizure disorder and requires medication for that three times a day.  She explained that he needs her assistance to shower, dress, eat his meals and take his medication.  She explained that the complainant was made bankrupt because, shortly prior to this offence, he had obtained finance to pay for a semi-trailer truck and a car.  She said that the complainant and herself now live on the disability pension in what she describes as, “a financially miserable existence.”

[20]  As discussed above, the attack itself was violent and unexplained.  A hammer was used as a weapon.  The applicant was 41 years old at the time he committed this offence.  He had a minor criminal history and previously had not been imprisoned.  In his favour, the applicant attempted briefly to staunch the bleeding he had caused and called an ambulance within minutes of having committed the offence, apparently at the urging of his girlfriend.  Had he not done so, the complainant would have died at the scene.  He prevaricated for some time, but soon after committing the offence, drove to a police station and handed himself in to the police.  He explained to the police what he had done in brief terms, although he did not co-operate in a formal record of interview.  The police evidence at the trial was that the applicant was sobbing uncontrollably and distraught at the time he presented to the police station.  Against these matters being indicative solely of remorse, the applicant lied to police about the reasons for the attack (presumably to attempt to advantage himself) and ran the matter to trial.  He gave evidence in circumstances where he knew the complainant could not give evidence.  The jury rejected his defence of self-defence and his evidence was rejected by the sentencing judge.

[21]  In Queensland, s 668E(3) of the Criminal Code provides:

“On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

[22]  In Skinner v The King[6] the High Court established the following rule in relation to a convicted person’s appeal against sentence:

“… the sentence is arrived at by the Judge at the trial under circumstances, many of which cannot be reproduced before the tribunal of appeal.  He hears the witnesses giving their evidence, and also observes them while it is being given, and tested by cross‑examination.  He sees every change in their demeanour and conduct, and there are often circumstances of that kind that cannot very well appear in any mere report of the evidence.  It follows that a Court of Criminal Appeal is not prone to interfere with the Judge’s exercise of his discretion in apportioning the sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate.  If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not.”

[23]  In Cranssen v The King[7] the High Court said this of the discretion to substitute a different sentence on an appeal by a convicted person:

“… it remains true that the appeal is from a discretionary act of the court responsible for the sentence.  The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles.  It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe.  There must be some reason for regarding the discretion confided to the court at first instance as improperly exercised.  This may appear from the circumstances which that court has taken into account.  They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so.  The court may have mistaken or been misled as to the facts, or an error of law may have been made.  Effect may have been given to views or opinions which are extreme or misguided.  But it is not necessary that some definite or specific error should be assigned.  The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound.  In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority.”

[24]  In Griffiths v The Queen[8] Jacobs J said, “The trial judge is given a wide discretion … that a Court on appeal will not lightly conclude that another sentence should have been passed.  The incorrectness of the sentence must be manifest.”

[25]  Like manslaughter, there is a wide spectrum of circumstances in which the offence of grievous bodily harm might be committed.  In R v Bryan; ex parte A-G (Qld)[9] Williams JA, with whom the Chief Justice and Cullinane J agreed, said:

“It is difficult, if not impossible, when dealing with the offence of grievous bodily harm to speak meaningfully of a ‘range’ when considering penalty.  A great variety of acts may result in the commission of that offence.  A single blow with the hand, the negligent use of a dangerous object, excessive force in resisting an attack, and blows struck in a highly emotional situation may all result in the offence being committed.  Also the nature of the injuries sustained and the permanent consequences thereof may vary greatly.  All of those factors will have some impact in determining the appropriate sentence.”

[26]  At the sentencing hearing, in this case, both the prosecutor and defence submitted that a head sentence of six years’ imprisonment was appropriate.  The case most commonly cited in support of such a submission is R v Dietz.[10]In that case a 20 year old male delivered one punch to the head of another male in the early hours of the morning outside a nightclub.  The punch felled the complainant, who hit his head on bitumen road surface.  It was the impact with the bitumen which caused severe neurological injury to the complainant in that case.  Dietz showed no remorse.  He lied to police, cross-examined all witnesses at his committal, and put the complainant through a four day trial.  He was sentenced to six years’ imprisonment with parole eligibility after serving half the period.  The Court of Appeal refused to interfere with that sentence.  In three important respects the offence in the present case is deserving of more severe punishment than that in Dietz.  Dietz was young and with prospects of rehabilitation.  He used no weapon and threw only one punch.  Thirdly, the complainant here has suffered more catastrophic injuries.  Notwithstanding that he suffered very serious neurological injuries, necessitating urgent neurosurgery and rehabilitation, the complainant in Dietz recovered to the point where he was able to work and drive.

[27]  In both R v Bryan (above) and R v Thomason (above), the Court of Appeal imposed six year terms of imprisonment for grievous bodily harm.  In both those cases harm was inflicted randomly in the street by an offender significantly younger than the applicant.  While serious harm was inflicted on the complainants in each of those cases, their residual disabilities compare favourably with the catastrophic consequences for the complainant in this case.  In addition, the accuseds in Thomason and Bryan pleaded guilty before trial.

[28]  The applicant’s counsel referred to the cases of R v Jaramillo[11] and R v Hoogsaad.[12]In both these cases offenders considerably younger than the applicant used weapons in attacks.  More blows were struck by both than were struck by the applicant, but much less serious injuries were inflicted, both at the time, and having regard to the residual effects of the attack.  In both those cases there were early pleas and in the case of Jaramillo, there were other significant mitigating factors.  In both cases the Court of Appeal refused to interfere with a sentence of five years.  The cases are not of great assistance in circumstances where the facts compare favourably to the facts of this case and where it is clear from the cases of Dietz, Bryan and Thomason (where the facts also compare favourably to this case), that the Court of Appeal has either imposed, or refused to interfere with sentences of six years.

[29]  The range of sentencing for serious cases of grievous bodily harm extends to sentences above six years.  In R v Bryan the Chief Justice remarked that Bryan could have been sentenced following his plea of guilty to six or seven years’ imprisonment with a violent offender declaration and the consequence that he would have been required to serve at least 4.8 to 5.6 years of his sentence.  Williams JA also spoke of a range of six to seven years’ as appropriate without mitigating factors.  As discussed above, the offender in Bryan was much younger than the offender here.  Despite some significant conduct indicating lack of remorse and attempts to conceal what he had done, Bryan did plead guilty and while the injuries he inflicted were life-threatening, the residual disabilities of the complainant in that case were nowhere near comparable to those in the present case. 

[30]  In Bryan Williams JA referred, with approval, to the sentence imposed in R v King & Morgan; ex parte A-G (Qld).[13]Morgan and King were men in their 20’s who, under the influence of alcohol and drugs, repeatedly bashed a 40 year old woman with metal torches, a small axe and a hammer.  The attack was very prolonged, lasting for an hour and a half.  The complainant required surgery and dental work.  She had no permanent physical consequences, but had substantial long‑term psychological problems.

[31]  Both Morgan and King had extensive criminal histories.  The reason for their being charged with grievous bodily harm simpliciter, was apparently their intoxication.  As to this the Chief Justice said, “The respondents were not to be sentenced for intentionally doing grievous bodily harm.  On the other hand their having done grievous bodily harm is not to be seen as if it were some sort of unconscious out of body event.  It was deliberate although as the Court must accept not intentional.”  These comments are apposite to the case here.

[32]  In King & Morgan the sentencing judge had specifically stated that she considered that six years was, “the top of the relevant range.”  Some similar understanding seems to have influenced the submissions before the sentencing judge in this case.  The Court of Appeal on an Attorney’s appeal stated that this understanding was in error.  The Chief Justice said, “[S]ight must not be lost of the maximum of 14 years’ imprisonment … ” and:

“… in the context of the maximum, the range for this offending would extend substantially beyond six years, with a declaration [of a serious violent offender].  In my view, but for the pleas of guilty, each respondent should have been imprisoned for at least eight years, after all mitigating features were taken into account, with a declaration that he had been convicted of a serious violent offence, but two circumstances warrant moderating that back.  First, the pleas of guilty and second, the moderate approach which is appropriate for reasons which have been explained in many cases, where the Court is dealing with an appeal by the Honourable the Attorney-General.”

[33]  In the result, the Court in King & Morgan imposed sentences of six years with declarations that the offenders had been convicted of a serious violent offence so that each offender necessarily had to serve 4.8 years.

[34]  The Crown in this case referred to R v Kirkby[14] and R v Bonner.[15]These were related matters.  Kirkby engaged Bonner to “do over” the complainant and agreed to pay him $2,000 plus his airfare to have that wish carried out.[16]  Bonner used a pick handle to attack the complainant who suffered head injuries, including a 12 centimetre laceration over his forehead and a compound fracture of the frontal bone, as well as rib fractures.  The victim required surgery to his head but had little residual disability, although he was left with cosmetic injuries to his forehead.  Bonner was 27 when he committed the offence and had a criminal record which included violence.  He pleaded guilty and was sentenced to eight years’ imprisonment.  Pincus JA delivered the judgment in which the other members of the Court of Appeal agreed.  He declined to find that eight years was manifestly excessive and expressed the view that he did not think it excessive at all.

[35]  Kirkby was sentenced to nine and a half years’ imprisonment on the grounds that as instigator of the attack his involvement was more serious than that of Bonner and that, unlike Bonner, he did not plead guilty but was convicted after a trial.  The Court of Appeal declined to find that sentence was manifestly excessive.

[36]  In support of his submission that the sentence in this case was manifestly excessive, counsel for the applicant referred to R v Honeysett; ex parte A-G (Qld)[17] and R v Perussich[18] as showing that the sentencing judge imposed a sentence more in line with the offence of grievous bodily harm with intent, rather than grievous bodily harm simpliciter.  In Perussich a nine year sentence was imposed by the Court of Appeal for grievous bodily harm with intent and in Honeysett a sentence of eight years for the same offence was not disturbed.  I think it must be accepted that there will be an overlap between the high end of the range of sentences for grievous bodily harm simpliciter and the low end of the range for doing grievous bodily harm with intent.  The maximum sentence for grievous bodily harm simpliciter is 14 years, while the maximum for grievous bodily harm with intent is life.  In King & Morgan the Chief Justice commented as to this:

“As to an applicable range we have received submissions on a number of previous cases which I should now mention, concerning doing grievous bodily harm or doing grievous bodily harm with intent.  I will begin with the observation that, while in principle doing grievous bodily harm with intent should ordinarily attract a more severe penalty than doing grievous bodily harm simpliciter, that principle should not be lifted to a level of inflexibility.  The circumstances of an offence of doing grievous bodily harm simpliciter may be so serious as to warrant severe punishment, even absent the element of intent.”

[37]  In this case a condign sentence was called for.  It may be accepted that the instant case is a worse one than those of Dietz, Thomason and Bryan.  No doubt there are factual differences, but I think the present case is as bad as Bonner and Kirkby.  The sentence imposed was very severe.  Yet it is within the range established by these cases and within the range discussed in King & Morgan.  There was a trial and I am conscious that, as a result, the sentencing judge did enjoy the advantages discussed in Skinner and Cranssen (above).  Having regard to the principles established by those cases, I am not convinced that the sentence here was so severe that this Court should interfere.  I would allow the application but dismiss the appeal.