R v Neal[2012] QCA 12

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P: I agree with Fraser JA's reasons for refusing this application for leave to appeal against sentence.

[2] FRASER JA: On 9 May 2011 the applicant was convicted on his plea of guilty of unlawfully doing grievous bodily harm.  On 20 May 2011 he was sentenced to imprisonment for four years, with an order that the imprisonment be suspended after serving a period of 16 months for an operational period of four years.  It was declared that one day served in pre-sentence custody was time served under the sentence.  The applicant has applied for leave to appeal against sentence on the grounds that the sentencing judge failed to properly take into account the applicant’s mitigating factors and that his sentence is manifestly excessive.

Circumstances of the offence

[3] There was no dispute about the facts at the sentence hearing.  The 35 year old complainant lived with his partner, the applicant’s sister, at a caravan park.  At about 2.00 am on 14 June 2009 the complainant and the applicant’s sister had an argument which developed into pushing and shoving.  The complainant punched her above her eye, cutting her skin and causing her to bleed.  She telephoned the applicant and asked him to come and pick her up.  He did so and his sister told him of the assault on her by the complainant.  After they had arrived at the applicant’s house, the applicant drove back to the complainant’s caravan, taking a silver torch with him.  He left the engine of his car running, got out of the car and knocked loudly on the glass sliding door to the complainant’s lounge area.  The schedule of facts tendered at the sentence hearing described what followed:

“The complainant pulled aside the curtain and then opened the sliding door.  On opening the sliding door he was struck by the accused using the torch.  The blow hit the complainant to the forehead on the right side at his hair line.  This caused the complainant to fall backwards.  The complainant however then got up and ran at the accused tackling him into the patio/lawn area outside of the caravan.  The complainant has limited memory after this.  A number of neighbours [heard] the commotion.  One neighbour in particular recognised the complainant’s voice and heard him say ‘what are you doing’.  He also heard very clear thumps, ‘about 6 times’.  He could hear the complainant’s voice ‘change after every blow, it was getting quieter and more desperate’.  Everything this neighbour heard went on for about a minute or so.  It is the Crown case that during this exchange the accused struck the complainant to the area of the eye.  The evidence suggests that there was more than one blow.  After this the accused returned to his car and quickly [drove] away.”

[4] Neighbours found the complainant moaning and lying on the ground outside the caravan.  He was taken to the hospital where he spent 11 days.  He underwent a series of surgical procedures.  His right eye was removed and replaced with an acrylic implant.  Because the eye socket is disfigured, the complainant considers that the prosthesis does not look like a real eye.  The complainant is at risk of complete blindness resulting from sympathetic ophthalmia, a condition in which the immune system causes a functional eye to become blind after a penetrating injury to the other eye.  His injuries included a fractured eye socket, numerous cuts of his head, nerve damage to the right side of his face, and facial disfigurement.  He experienced frequent headaches and severe and debilitating headaches occasionally, about every two or three weeks, which lasted for two or three days at a time.  He missed many days of work as a result.  He also missed social outings because of the pain.  The complainant’s nerve damage on the right side of his face was irreversible and left that part of his face numb.  It also affected his facial movements.  The complainant sustained financial loss as a result of the injuries.  He could not fulfil his long held ambition of becoming a pilot.  The complainant also suffered significant emotional consequences which were detailed in his victim impact statement.

[5] Very shortly after the offence police went to the applicant’s house.  He was wearing a pair of jeans which were blood stained.  Police also found a jacket which was blood stained.  The applicant declined an interview but, when told that his house was to be searched and that the police were looking for what he had hit the complainant with, the applicant told the police that there was a torch near the front door.  DNA tests provided evidence that the blood on the applicant’s jeans and jacket belonged to the complainant.  No DNA was obtained from the torch, but it was accepted that the applicant used it as a weapon when he inflicted the grievous bodily harm.

[6] The applicant was arrested on 14 June 2009.  There was a contested committal hearing on 18 June 2010 but that was in relation to charges of attempted murder and grievous bodily harm.  The original indictment presented on 15 June 2010 charged the more serious offence of doing grievous bodily harm with intent to do grievous bodily harm.  When the indictment was amended to charge grievous bodily harm without that intent, the applicant pleaded guilty. 

The applicant’s personal circumstances

[7] The applicant was 35 years old at the time of the offence and 37 years old when he was sentenced.  He has a criminal history of drug offences and offences of dishonesty committed between 1992 and 2005.  On 27 August 1992 a good behaviour bond was imposed upon the applicant for the offence of assault occasioning bodily harm on 2 June 1992.  After an argument between the applicant and the complainant in that offence, the complainant tried to walk away but the applicant assaulted him, leaving him with a cut to his head, a bloody nose and bruising. 

[8] The applicant is the father of three boys, who were aged nine, 12 and 17 at the time of sentence.  There was a shared custody arrangement between the applicant and his former partner.  It was submitted for the applicant that the applicant’s former partner had “some issues with a drug addiction”, which led to the intervention of child safety officers.  A letter from a Child Safety Officer referred to concerns about the care and protection of the children whilst in the primary care of their mother and noted that the children were assessed as being not at significant harm whilst residing with the applicant.  The applicant was identified as a “protective factor and support person”, particularly regarding the medical and mental needs of two of his children.  A letter from a psychologist recorded that one of the children had been seen at a hospital clinic and treated for low mood in the context of significant family stress.  He had required hospitalisation on one occasion because of concerns about his level of suicidality.  The psychologist expressed the opinion that the child was susceptible to deterioration in his mood if his father was absent due to imprisonment. 

[9] The applicant had a back injury which prevented him from working, with the result that he stayed at home and focussed his energies and attentions upon the children and the household.  The applicant’s current partner stated that if the applicant was incarcerated for a long term the impact on the children and herself would be severe and extremely difficult.  She would be unable to continue in her occupation as a baker because of the need to supervise and assist the children.  Various references suggested that the applicant’s offence was out of character.  The applicant’s counsel informed the Court that the applicant had not used drugs for six years.  That was consistent with the absence of any offending by him after 2005. 

Sentencing remarks

[10] The sentencing judge summarised the circumstances of the offence.  His Honour did not proceed on the basis that the applicant left his residence intending to use the torch as a weapon but found that he did use the torch at the time of the assault, placing the case in a more serious category.  The sentencing judge accepted that the applicant’s motivation was to assist his sister. 

[11] The sentencing judge also took into account the applicant’s personal circumstances.  His Honour had regard to the offence of assault occasioning bodily harm in the applicant’s criminal history but noted that it was a long time ago and people spoke highly of the applicant in references tendered to the court.  His Honour also referred to the effect that his sentence would have upon members of the applicant’s family, referred to the relevant documentary exhibits, and accepted that the children would probably be better off with the applicant at home and that they would be affected by the sentence.  His Honour regarded this as a matter of “considerable concern”, but observed that a sentencing judge should not be overwhelmed by such a feature.

[12] The sentencing judge took into account that once the indictment was amended to charge the less serious offence the applicant readily pleaded guilty, the applicant was remorseful, he seemed to appreciate the gravity of the offence, and he was very sorry for it.  His Honour did not think that personal deterrence was a significant consideration in sentencing but concluded that general deterrence was a very important consideration in a case of this kind. 

Consideration

[13] The applicant argued in his outline of submissions that the sentence did not take into account the applicant’s family circumstances.  It will be apparent from what I have already written that the sentencing judge did so.  His Honour took into account all of the mitigating factors upon which the applicant relied. 

[14] The applicant argued that the head sentence of four years imprisonment was excessive.  This was said to be demonstrated by reference to comparable sentencing decisions.  The applicant argued that these cases revealed that the starting point for an offence of this kind was three years imprisonment.  Particular reliance was placed upon the following decisions: Amituanai (1995) 78 A Crim R 588; Biersteker [1995] QCA 266; R v Rehavi [1999] 2 Qd R 640; R v Weare [2002] QCA 183; R v O'Grady; ex parte Attorney-General (Qld) [2003] QCA 137; R v Henriott [2004] QCA 346; R v Berryman (2005) 159 A Crim R 65; R v O'Dell [2006] QCA 8; R v Brand [2006] QCA 525; R v Holland [2008] QCA 200; R v Bailey [2009] QCA 251.  Before discussing those decisions it is useful to mention some assumptions which underlay the applicant’s argument about their effect.

[15] Many of the cases involved unpremeditated assaults using a weapon, often a glass, against an innocent bystander.  The applicant argued that the applicant’s offence was in a different and less serious category because he reacted to the complainant’s assault upon his sister.  That argument overlooked other features of the applicant’s offence.  His offence was not an impulsive reaction to the assault upon his sister.  After learning of that assault, the applicant first completed his journey back to his house with his sister, he then had the presence of mind to collect the torch, he drove back to the caravan park from which he had collected his sister, and he then attacked the complainant with a weapon without any warning.  The courts strongly condemn vigilantism of this kind.  It is inimical to a civilised society operating under the rule of law.  These aggravating features of the applicant’s offence outweigh any mitigating effect in the circumstance that he committed it in reaction to an assault by the complainant upon the applicant’s sister. 

[16] Another theme in the applicant’s argument was that there were two distinct stages in his offending, the second, more serious, stage being committed as an immediate reaction (admittedly a gross overreaction) to an assault upon the applicant by the complainant and in the course of a “fight”.  The applicant argued that the assault which caused the serious injuries to the complainant’s eye occurred in the second phase of events - during a fight between the applicant and the complainant and after the complainant had initiated the second phase by running at the applicant and tackling him.  This argument involved a significant departure from the factual basis upon which the sentence proceeded, as set out in [3] of the reasons.  Understandably, the applicant’s counsel at the sentence hearing did not argue that the offence was rendered less serious because, immediately after the applicant struck the complainant on the head with a torch without any warning, the complainant tackled the applicant, thereby forcing him out on to the patio/lawn area.  Nor was it submitted at the sentence hearing that the complainant hit or injured the applicant, or that there was any “fight”.  The submission on appeal that the word “exchange” in the schedule of facts connoted a “fight” is without substance.  According to the schedule of facts, the reported “exchange” comprised nothing more than the applicant repeatedly hitting the complainant in the area of his eye with a torch whilst, in progressively quieter and more desperate tones, the complainant pleaded with him. 

[17] The applicant also argued that the prosecutor acknowledged that the complainant sustained his injuries in the course of a “fight” when the prosecutor observed that the applicant struck the complainant with a torch to the complainant’s eye area on more than one occasion “during the course of that subsequent struggle”.  That statement merely formed part of the prosecutor’s overview of the agreed schedule of facts.  In any event, the fact that the complainant unsuccessfully struggled to defend himself against the applicant’s attack with a weapon is hardly a mitigating factor.  It was also submitted that the applicant’s counsel’s general reference to “the motivation for the offending” conveyed the motivation as being that the complainant had tackled the applicant.  In fact, counsel subsequently articulated the motivation to which he referred: “… [the applicant] went around there to assault the complainant because of what he had done to his sister earlier that night”. 

[18] The applicant’s analysis of the cases was informed by that series of false premises and should be rejected for that reason.  I therefore propose to make only very brief reference to most of the cases.

[19] In Amituanai and Biersteker the Court refused applications for leave to appeal against head sentences of three years imprisonment.  In Rehavi the appellant was re-sentenced by this Court to three years imprisonment.  The 1997 amendments to the Penalties and Sentences Act 1992 did not apply in relation to those sentences in those relatively old cases.  An effect of the amendments was that the sentencing principles in s 9(2)(a) of that Act (that imprisonment should be regarded as a last resort and a sentence that allows the offender to stay in the community is preferable) no longer applied for offending involving violence or resulting in physical harm to another person.  Where the amendments apply, sentences passed with reference to the earlier legislative regime are not a reliable guide to the sentencing range.  Because there are relevant decisions of the Court referable to the current legislation there is little point in referring to the older cases.

[20] In Brand, Williams JA noted that the Court had been referred to some 14 cases and observed:[1]

“The only real conclusion that can be drawn from a consideration of the cases referred to is that the appropriate sentence for the offence of grievous bodily harm will vary significantly and that relevant factors will include the nature of the injuries sustained, the age of the offender, the criminal history of the offender, whether or not a weapon was used, whether the offence was established by one blow or whether there was a sustained attack on the complainant.”

[21] Some of the cases upon which the applicant relied did not involve the use of a weapon.  In some of the cases involving the use of a weapon the offender struck only one blow.  In many of the cases the injuries were markedly less serious than the complainant’s injuries.  In others the applicant had the benefit of youth.  Those and other distinguishing factors render most of the cited cases of little assistance as comparable sentencing decisions.

[22] For example, in O'Grady, in which the offender was re-sentenced to imprisonment for two years to be suspended after six months, the only permanent effects of the assault appear to have been a distortion of the complainant’s vision, and the 28 year old offender was described by Williams JA (at [28]) as a “relatively young man, … who has no previous convictions”.  In O'Dell, the complainant lost approximately 90 per cent of the vision in one eye, an injury which, whilst serious in itself, is less serious than the overall effect of the present complainant’s injuries: the loss of an eye, its replacement with a less than satisfactory prosthetic eye, the associated risk of complete blindness (albeit a very low risk, it is to be hoped), facial disfigurement, and serious emotional consequences.  O'Dell, who struck the complainant with a fence paling on the hand and on the right side of the face, had a substantial criminal history for property offences, but it should also be noted that the sentence imposed upon him of two years imprisonment suspended after 12 months was described by Keane JA as “distinctly moderate”.  In Berryman, an application for leave to appeal against a sentence of three years imprisonment suspended after 12 months was refused.  That offender had, without provocation, smashed a glass into the complainant’s face and then punched the complainant two or three times.  That complainant was left with significant permanent scarring and suffered from depression, but he did not suffer the additional consequence of the loss of an eye.  The offender, at 24 years old, was also much younger than the applicant.

[23] The applicant particularly emphasised the decision in Brand.  As was submitted for the applicant, that 25 year old offender with a serious criminal history - he had previously served a term of imprisonment - engaged in a vicious and prolonged attack on a 72 year old man who had given no provocation.  The sentence of three years imprisonment suspended after nine months was regarded as being towards the upper limit of the range, although within it.  However, that offender did not use a weapon and, although the facial injuries described in Brand at [6] were no doubt serious, it was not indicated that there was any permanent damage which approached the severity of the present complainant’s injuries. 

[24] In Bailey, the Court, after reviewing comparable previous decisions including Rheavi, Weare, Berryman and Brand, set aside a sentence of four and a half years imprisonment with parole eligibility after 15 months and re-sentenced the offender to three years imprisonment suspended after nine months.  That was another case in which an offender, without any provocation, struck a man in the face with a glass, causing significant facial injuries.  That complainant was left with permanent and disfiguring facial scarring.  Whilst those injuries were very serious, the complainant did not suffer the additional consequence of the loss of an eye with the associated risk of complete blindness.  Furthermore, the Court noted that the attack involved a single blow and, importantly, the offender, who had a minor criminal history, was only 19 years old. 

[25] The respondent referred to R v Bierton [2009] QCA 68, but the fact that a sentence of three years imprisonment suspended after nine months was not interfered with in that case, which involved less serious injuries and a less culpable offence, does not have a significant bearing upon the sentence in the very different circumstances of this case.

[26] Those decisions do not shed much light upon the proper sentence in this case, but some guidance may be derived from Henriott and Weare.  In Henriott, the Court varied a sentence of four and a half years imprisonment by ordering the sentence to be suspended after the applicant had served 18 months.  That 39 year old offender, with an extensive criminal history, including an offence of violence (a sexual offence) for which he had been imprisoned, struck a 16 year old boy just below the left eye with a 12 inch shifting spanner and then grabbed him and pushed him backwards.  The assault may have been retribution for what the offender was told was an assault upon the girlfriend of one of his children.  The complainant suffered a closed head injury, a fractured left eye socket, contusions and lacerations to his face.  After surgery to place metal plates and screws in his face, he was left with decreased capacity to chew, facial scarring, and a permanent residual loss of visual acuity due to optic nerve damage, and ongoing headaches.  He could not continue his chosen sport.  More seriously, his eye injury prevented him from pursuing his career in carpentry and he had been unable to find any satisfactory employment.  White J (as White JA then was), Jerrard JA and Jones J agreeing, considered that the head sentence of four and a half years was not manifestly excessive but was at the high end of the range (see at p 8).  The mitigating factors included a late plea of guilty and the offender’s responsibility to care for his three teenage children; it was the latter feature which was found to require the suspension of the imprisonment after 18 months (see at pp 8 – 9).

[27] Particularly the disparity in age between that offender and his victim, the offender’s criminal history, and the lateness of his plea, compare unfavourably with the applicant’s case.  The destruction of the complainant’s eye and the requirement that he use a less than satisfactory prosthesis perhaps make his injuries seem more severe overall, but there were similarly devastating effects on each victim.  Henriott struck only one blow, but he chose a weapon which might be used to inflict more serious injury with a single blow.  Overall, his seems a somewhat worse case, as is reflected in the less severe sentence given to the applicant.

[28] Both the respondent and the applicant relied upon Weare, in which the Court did not disturb a head sentence of three and a half years imprisonment but added an order that the imprisonment be suspended after 12 months.  That offender, who was in company with two others, struck the complainant from behind with a tree branch, causing serious injury which resulted in the loss of vision in one eye.  The injury was less serious than here.  It is particularly significant that the offender was only 19 years old at the time of the offence and that, whilst he had some previous convictions, he had no previous conviction for violence.  Accordingly, even taking into account that the offender committed his offences in company with others, the sentence of three and a half years suspended after 12 months in that case is readily reconcilable with the sentence of four years suspended after 16 months in this case. 

[29] Holland was cited for the applicant mainly to draw attention to the statement by Keane JA (at [63]) that decisions of this Court suggested that “the range of sentence which might have been imposed in a case where grievous bodily harm has been deliberately inflicted by the use of a weapon by a mature offender with a record of personal violence is between four and seven years imprisonment.”  That proposition does not assist the applicant’s argument.  That the range for an offence of doing grievous bodily harm with intent to cause grievous bodily harm in the circumstances described by Keane JA was said to commence at four years imprisonment does not imply that four years imprisonment is the upper limit of the range for the offence of grievous bodily harm in similar circumstances. Particular aggravating circumstances, such as the degree of premeditation, the severity of the assault, and the extent of the injuries may, depending upon other factors, result in a much more severe sentence than four years for this offence.

[30] It was necessarily a difficult task for the sentencing judge to fix upon the relevant weight to be afforded to the aggravating features and the factors favouring mitigation.  The sentence is not a lenient one, but it is not manifestly excessive. 

Proposed order

[31] I would refuse the application.

[32] MARGARET WILSON AJA:  I agree with the order proposed by Fraser JA and with his Honour’s reasons for judgment.