R v Baker[2012] QCA 237

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA: I agree with the reasons of White JA and the order she proposes.

[2] WHITE JA: On 10 February 2012 the applicant pleaded guilty in the District Court at Cairns to one count of doing grievous bodily harm to his brother at Bentley Park on 13 November 2010.  On 13 February 2012 he was sentenced to four years imprisonment with a parole eligibility date of 12 December 2012.  Two days in pre-sentence custody from 13 to 15 November 2010 were declared as time served under the sentence.  He was at the time of sentence serving a period of two years imprisonment imposed on 25 January 2012 in the Cairns Magistrates Court with a parole release date fixed at 12 June 2012.  The four year sentence imposed on 13 February was to be served concurrently with the two year sentence.

[3] On 11 April 2012, with the consent of the DPP, time was extended to the applicant to lodge an application for leave to appeal against sentence until 27 March 2012. 

[4] The applicant, who conducted his application for leave to appeal by video link from the Lotus Glen Prison, wrote as his ground of appeal in his application:

“The sentence imposed was manifestly excessive in all the circumstances.  On the grounds I entered a plea of guilty on the 10.2.2012 in Cairns Watchhouse to a plea bargain of 12 months made between my solicitor, barrister and prosecutions and was remanded until the 14.2.2012 but the matter was brought forward to the 13.2.2012 and prosecutions reniged [sic] on the deal and went 3½ to 5½ years acumalative [sic] with the sentence.  Also it was my very first breach on parole ever it stated like I breached parole all the time.”[1]

[5] In oral submissions the applicant said that since he was not sentenced to 12 months imprisonment as bargained for he wished to go to trial so that he could give evidence and tell “the whole story of the background” to the altercation with his brother which led to the grievous bodily harm charge.  That statement may be taken as an application to withdraw his plea of guilty.  Before considering that application the circumstances of the offending need to be considered and the progress of the sentence proceedings.

Circumstances of offending

[6] By consent, the prosecution tendered a statement of facts on sentence.  The applicant was born in December 1976 at Babinda.  He was almost 34 at the time of the offending and 35 at sentence.  The complainant was his natural brother and nearly two years older.  On 13 November 2010 the applicant and the complainant were at their mother’s residence at Bentley Park.  They had both been drinking all day.  Their mother told them that it was time to stop at which the applicant began arguing with his mother, father and his partner.  The complainant who was outside intervened “yelling out to the [applicant] ‘don’t argue with the old lady, this is her house’”.[2]

[7] The applicant reacted angrily to the complainant becoming involved and walked out of the house to the driveway to the complainant.  He picked up his two year old son[3] and was holding him when he charged at the complainant yelling out that he should leave the residence.  The applicant kicked the complainant in the stomach.  The complainant then charged the applicant, pushing him and causing the applicant to fall down with the child in his arms.  The applicant’s partner intervened, pushed the complainant away and took the child.  The applicant retreated inside the house while the complainant remained outside. The applicant obtained two knives from the kitchen.[4]  One was a kitchen knife with a 205 millimetre single edged non-serrated blade; the other was a carving knife which had a 245 millimetre single edged non-serrated blade.  He approached the complainant in silence.  The complainant picked up a plastic chair in an attempt to defend himself.  The applicant stabbed the complainant in the chest with one of the knives.  The complainant began bleeding profusely and was unsteady on his feet.  His partner sat him down on the driveway.

[8] Police arrived before the ambulance and began applying first aid to the complainant.[5]  While one police officer assisted in first aid the other approached the applicant.  She told him to sit down but he ignored her.  He pulled his arm away when she took hold of it.  The officer threatened the applicant with her taser and he ran away.  The police officer followed him and after a short pursuit arrested the applicant.  He became ill and was transported to the hospital in an ambulance.  After treatment he was taken to the Cairns watch-house where he refused to take part in an interview and was charged.

[9] The complainant was transported to the Cairns Base Hospital and assessed as having stab injuries to his left chest resulting in a pneumothorax and haemothorax (collection of blood in the space between the chest wall and the lung) and a lacerated internal mammary artery.  An intercostal tube was inserted and he was transferred to the operating theatre where his chest was opened and inspected.  The mammary artery was tied off; the lung was managed with a chest tube and he was placed in a ward.

[10] If left untreated the injuries would have been likely to endanger his life or cause permanent injury to his health.  This conclusion appearing in the schedule of facts was the opinion of Dr David Evans, a surgical registrar at the Cairns Base Hospital who had treated the complainant.

[11] The prosecution did not have a victim impact statement, noting to the sentencing judge that the complainant had instructed the ODPP in Cairns that he did not wish the matter to proceed and that the charge should be dropped.  The complainant told the ODPP that it was a family matter that had got out of hand.

Sentence proceedings

[12] Sentencing the applicant was seen below as somewhat complex in light of his criminal history, that the offending had occurred whilst he was on parole for a violent offence and was serving a term of imprisonment imposed on 25 January 2012 for a violent offence at the time of sentence.  It will be necessary to refer to those details in due course.  As a consequence, his Honour asked for submissions about an appropriate head sentence, commenting that “fashioning” it could occur subsequently.

[13] The prosecutor, who was not the prosecutor who had had charge of the matter[6], submitted for a head sentence of three and a half years imprisonment cumulative on the sentence of imprisonment of two years which the applicant was then serving.  He submitted that if the sentence was not to be cumulative then a head sentence of five years or higher was appropriate.  The prosecutor referred the sentencing judge to R v Trieu.[7]  After explaining the facts in Trieu the transcript records the defendant as saying:  “Can I explain why I’m standing here first?”[8]  His Honour told the applicant that his counsel would speak on his behalf but if there was anything else that he needed to say it could be dealt with when he had finished.  The prosecutor then concluded his submissions.

[14] Defence counsel sought to have a short conference with the applicant.  The applicant then explained, as recorded in the transcript,

“When I got – see, your Honour, on April 20th, my parole ran out.  My parole ran out April 20th; they only come and pulled bail for me on April 20th when my sentence was over and I finished my parole.  It was my first breach on parole; parole would not give it back to me because parole said I had to serve out the remainder due to the outcome of the Court case, so I served it out till April 20th.  I was out seven months on bail.  My mother passed away 9th of October.  I had an argument with my uncle; that’s what----- … I was 178 days, seven months on bail.  That’s presentence custody to this GBH, not two days.”[9]

His Honour explained to the applicant that bail did not count as time served.  The defendant protested that he had not been free because it was conditional bail and he had to sign in at the police station three days a week and undertake alcohol testing.  The defendant argued that he had, in fact, carried out the conditions of his bail for seven months but that when his mother passed away he “went off the rails”.[10]

[15] Defence counsel then resumed his submissions.  It appears that at that point the applicant contested the schedule of facts to the extent that he had only one knife when he attacked his brother.

[16] Defence counsel explained, in considerable detail, the background issues to the dispute between the brothers, their longstanding disagreements, and the family issues of the day.  His instructions were that the applicant did not intend to hurt his brother but merely to scare him but that the complainant took no notice of the knife “as he’s not a person who’s easily scared”.  The sentencing judge was told that the applicant called the ambulance and police and stayed with his brother attending to his injuries and only then did he take flight.  Through his counsel the applicant expressed his regret at how matters had got out of hand.  It was put to his Honour that the brother was not a defenceless victim but participated in the argument.  His Honour observed that the applicant had “a shocking history of violence”.[11]

[17] Defence counsel referred the court to three decisions:  R v Guppy[12]; R v O'Dell[13] and R v Weare.[14]  He contended for a head sentence of no more than three and a half years with something less than 12 months actually to be served.

[18] At the conclusion of his Honour’s sentencing remarks, after his Honour had imposed a head sentence of four years concurrently with the existing sentence of two years with parole eligibility date at 12 December 2012, the applicant interjected to observe that he would not get parole.[15]

Criminal history

[19] The applicant’s pre-sentence custody certificate, which was tendered below, noted the following:

“Offender was serving 2 year 6 months imprisonment

Commenced on date:  25.08.09

Released to Court ordered Parole date:  25.08.09

Returned to Custody 13.11.2010

Court Ordered Parole Suspended 15.11.2010

Fulltime discharge date:  20.04.11

Order expired:  20.04.11

Admit into police custody:  12.10.11

Offender is serving 2 years

Commenced on 25.01.12

Court ordered parole date:  12.06.12

Fulltime Discharge date:  12.10.13”[16]

The certificate noted that the applicant went into police custody on 13 November 2010, the date of the offence, for which he received bail on 19 April 2011.

[20] At the commencement of this application the applicant said that he had had imposed upon him a period of imprisonment of six years, five months and nineteen days.  This was not a surprising belief since the Corrective Service Sentence Calculation Data Sheet created on 16 May 2012 at the top of the page states “Sentence: 6 years 5 months 19 days”.  However, the applicant’s fulltime discharge date is shown as 10 February 2016 correctly reflecting the four year sentence imposed on 13 February with the declaration. 

[21] Mr M R  Byrne SC, who appeared for the respondent, assisted the court by explaining the “time line” in the applicant’s criminal history.[17]  On 25 August 2009 the applicant was sentenced by Judge Bradley in the District Court at Cairns, after pleading guilty to assault occasioning bodily harm while armed with a knife, to two and a half years imprisonment.  Three hundred and eleven days between 18 October 2008 and 25 August 2009 were days declared to have been imprisonment served under that sentence.  The applicant’s release to parole was ordered on the day of sentence, that is, 25 August 2009.  That was (approximately) after 10 and a half months (one-third) of the head sentence.  The applicant’s fulltime discharge date in respect of that offence was 17 April 2011.  The subject offence was committed on 13 November 2010.  He was, therefore, on parole at the time he stabbed his brother.  On his arrest on 13 November 2010 his parole was breached and he served the ensuing period to 17 April 2011 in respect of the sentence imposed on 25 August 2009 by Judge Bradley.  He was then released on bail on 17 April 2011 in respect of the subject offending.  On 12 October 2011 he was arrested and charged with a serious assault.  He committed another serious assault whilst he was held on remand with respect to that charged offence.  The applicant was held in custody on remand and on 25 January 2012, as mentioned, was sentenced to two years imprisonment with a parole release date of 12 June 2012.  One hundred and five days, that is, from 12 October 2011 to 25 January 2012 was declared as time served.  That parole release was, unexceptionally, after serving eight months (one-third).

[22] The applicant was sentenced on 13 February 2012 to four years imprisonment for the subject grievous bodily harm offence concurrent with the two years sentence.  Being more than three years, a parole release date could not be ordered and parole eligibility was ordered on 12 December 2012.  That resulted in parole eligibility after serving 10 months – well below one-third.  Mr Byrne submitted that the applicant commenced his current period of imprisonment on 12 October 2011 when he went into custody on remand for the serious assault offence dealt with in the Cairns Magistrate Court on 25 January 2012.  Accordingly, the total period of imprisonment (for the two offences) is one of four years and four months with parole eligibility after 14 months – one-third would be after 13 months.  That analysis puts to rest the applicant’s concern that he was sentenced to in excess of six years imprisonment. 

[23] The applicant’s recorded criminal history commenced in 1994.  His first conviction for violence was in 1995 when he was 18 for which he was convicted and sentenced to six months imprisonment.  Mr Byrne submitted that, overall, the applicant had been convicted on 25 occasions involving approximately 65 offences.  Eleven of those were offences of violence and he received imprisonment in respect of eight of them.  There is no reason to question those calculations.  The applicant’s “explanation” has been mentioned above.  In the Cairns Magistrates Court on 25 May 1998 the applicant was convicted and sentenced to four months imprisonment for, amongst other offences, possessing a knife in a public place.[18]  The circumstances of the offending in October 2008 also involved a knife.  The applicant attacked a stranger to him in a public place with a knife although no serious injury was inflicted – a superficial cut to the throat which did not require stitches or medical attention – and bruising from kicking.  It was, according to the sentencing judge’s remarks[19], a case of mistaken identity.

Plea of guilty

[24] The applicant has tendered a letter dated 19 April 2012 from his solicitor informing him that the solicitor had had discussions with the prosecution about the sentence which would be sought prior to the sentence hearing.  He wrote that “agreement” had been reached that a sentence of 12 months would be appropriate.  The respondent disputes that there was any “agreement” and was in a position to file a relevant contradictory affidavit by the prosecutor with whom the applicant’s solicitors would have communicated.  It was not thought necessary to embark upon the resolution of any dispute about the nature of the communication between prosecutor and defence solicitors below in light of the conclusion about the soundness of the plea.

[25] In Meissner v The Queen[20] Brennan, Toohey and McHugh JJ said:

“A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty.  An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests.  A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.  There is no miscarriage of justice if a court does act on such a plea even if the person entering it is not in truth guilty of the offence.”[21]

[26] Dawson J said:[22]

“It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt.  He may do so for all manner of reasons:  for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.  The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.  Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.  But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside.”

[27] The transcript of proceedings (notwithstanding that the applicant maintained that there were omissions in the transcript) reveals that the applicant was confident about interjecting when he believed that some aspects of the offending conduct were being misstated, but he did not do so when the prosecutor submitted for a level of sentence much greater than he had understood would be sought.  His counsel’s submission for a sentence in the range of two to three years with time to be served of about 12 months did not bring a protest from the applicant.  As the manner in which the applicant made his submissions on this application demonstrated, the applicant does not lack confidence and is fluent and articulate.  It was also clear from the transcript that defence counsel sought instructions in the course of his submissions.  Whatever the “deal” as it was described by the applicant, it did not appear to be central on the day he was sentenced.

[28] In GAS v The Queen; SJK v The Queen[23] the court[24] set out what their Honours described as “certain fundamental principles” on sentencing when there is an allegation that a plea agreement had been reached with the prosecution.  Relevantly, for the present application, their Honours said:

“[I]t is the accused person, alone, who must decide whether to plead guilty to the charge preferred.  That decision must be made freely, and, in this case, it was made with the benefit of legal advice. … [T]he judge is not, and in this case was not, involved in the decision.  Such a decision is not made with any foreknowledge of the sentence that will be imposed.  No doubt it will often be made in the light of professional advice as to what might reasonably be expected to happen, that advice is the responsibility of the accused’s legal representatives.”[25]

Their Honours then said:

“[I]t is for the sentencing judge, alone, to decide the sentence to be imposed.  For that purpose, the judge must find the relevant facts.  In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally … from the bar table …”[26]

[29] Their Honours concluded with some salutary general observations about the way in which dealings between counsel for the prosecution and counsel for the accused person, which it may later be said impacted upon the offender’s decision to plead guilty, should be recorded.  Their Honours there were concerned to consider alleged agreements about the factual basis underpinning the guilty pleas.  However, they added:

“… the desirability of recording what is agreed is not confined to those cases.  It extends to every substantial matter that is agreed between the parties on subjects which may later be said to have been relevant to the decision of an accused person to plead guilty.”[27]

[30] The applicant understood the nature of the charge, he intended to plead guilty – he had between 10 February, when he pleaded, and 13 February, when he was sentenced, time to reflect upon his plea – and the agreed facts, even with the applicant’s amendments, demonstrated that the applicant was guilty of the offence.  The plea was freely made.  The applicant should not, if that is what he seeks, be permitted to withdraw his plea of guilty.

Manifest excess

[31] On this application the respondent referred to R v Johnson[28] which has some factors similar to the present.  That offender had pleaded guilty to unlawfully doing grievous bodily harm to her then partner in July 2009.  She was sentenced to four years imprisonment with parole eligibility on 27 January 2013, that is, after serving one-third of the sentence.  That offender appeared for herself before this court.  She contended for a version of the facts inconsistent with the schedule of facts which had been tendered without objection below.  The offender and the complainant had lived together in an intermittent de facto relationship for many years with a history between them of domestic violence.  The complainant was a soldier who had been drinking to excess with his colleagues and was driven home by them.  The applicant abused him, accusing him of sleeping with her sister.  She threatened to kill him and the argument continued.  He went to the kitchen fridge for a drink of water and saw the applicant with a knife in her hand.  The complainant ran twice around the kitchen counter chased by the offender.  When he stopped she stabbed him in the right side of his neck.  He attempted to run for the front door but she told him to sit down and pushed him against the wall.  She applied pressure to the wound with a towel and called 000, telling the operator that she had stabbed the complainant.  She contended that he had walked into the knife. 

[32] The complainant underwent emergency surgery at the Townsville Hospital.  The knife wound caused damage to the long thoracic nerve as it passed through the neck.  The trapezius muscles were initially paralysed and the complainant had been left with a permanent disability which had had psychological results for him as well as some impact on his career in the army.  The applicant was 29 at the time of the offence and 31 at sentence.  She had a relevant criminal history in the ACT for offences of violence including when she was in her early twenties to a sentence of nine months imprisonment for assault occasioning bodily harm and a later similar conviction.  That offender had a dysfunctional upbringing marked by alcohol, violence and sexual abuse.  She had expressed regret for her actions.  In her reasons the President noted that:

“The facts of cases of this kind are so infinitely variable that it is always difficult, if not impossible, to find precisely comparable cases.”[29]

However, Her Honour commented:

“The use of a knife in domestic arguments, when one or both partners are affected by alcohol, can and all too frequently does, result in tragedy.”[30]

The sentence was held not to be manifestly excessive.

[33] The decisions of R v Trieu[31], R v Guppy[32] and R v O'Dell[33] were referred to below but each has features making it of less assistance than Johnson.  They may be mentioned briefly.

[34] The offender in Trieu was convicted after a trial and appealed against his conviction as well as the sentence of five years imprisonment.  He was aged 38 with no prior criminal history.  The offence occurred at a boarding house where the offender and the complainant, who did not have a cordial relationship, occupied separate, adjoining rooms.  There was some conflict about what happened but essentially there was some argument and the complainant asked the offender what the problem was, whereupon he was punched in the chin.  The complainant returned the punch.  The offender went to the kitchen and returned with a meat cleaver raised above his head which he swung down towards the complainant who put up his left arm to protect himself.  His arm was cut and the two men fell through a doorway on to a patio and rolled out on to a grassed area in a bear hug with the offender on top of the complainant threatening to kill him.  Another resident hit the offender with a mop and the offender withdrew.  The complainant was left with serious nerve damage to his arm.  In the absence of surgery his hand would have needed amputation eventually.  He was left with movement only in the thumb and index finger.  The consequences of the injuries sustained were much more severe than in the present case.  There was no remorse expressed.  The offender sought to minimise the seriousness of the attack.  He had a good history of employment.  The sentence of five years without any recommendation was held not to be excessive.

[35] The offender in Guppy pleaded guilty to doing grievous bodily harm for which he was sentenced to four years imprisonment with a recommendation for parole eligibility after serving one year.  At the time of sentence he was unemployed, had no previous convictions in Queensland and a minor, irrelevant motor vehicle conviction in Victoria.  The offender (aged 21) and complainant (aged 27) resided together in a caravan.  It was accepted that the complainant had been menacing and threatening the offender with violence for hours before the offence was committed.  On the offender’s account, which appears to have been accepted, the complainant had attempted to grab him after he had dragged him out of bed in the night.  He hit the complainant with a fry pan and then stabbed him with the knife which he had picked up from the table.  He said he did this to enable him to exit the caravan.  He left and then returned with his mother, by which time police had been summoned.  He engaged in an interview with police.  The injuries sustained by the complainant were similar to the injuries sustained here.  However, the offender had stabbed the complainant three times in the front of his chest and three times to his back.  A plea of guilty was accepted on the basis that the incident had occurred in self-defence but that the use of the knife was not reasonable in the circumstances.  A psychiatrist reported that the offender was suffering from a depressive neurosis.  That sentence was held not to be manifestly excessive.

[36] The offender in O'Dell was sentenced to two years imprisonment suspended after 12 months with an operational period of three years for one count of grievous bodily harm and sentenced on another count of causing damage to property.  That offender contended that he ought not to have been required to serve 12 months imprisonment.  There was a longstanding history of antagonism between the complainant’s and the applicant’s families who lived next door to each other.  The complainant approached the applicant who was kicking the fence palings off their dividing fence and the applicant threatened to kill him.  The applicant lent over the complainant’s side of the offence and struck him on the hand and in the right side of his face with a fence paling.  The complainant suffered a serious injury to his right eye for which he underwent surgery and lost approximately 90 per cent of the vision in that eye.  The applicant had been drinking before the incident occurred.  The assault was sparked by some perception by the offender that he had been verbally abused by the complainant.  There had been an earlier altercation in which the complainant had assaulted the offender and the offender had suffered the loss of two front teeth.  That offender was 38, was in employment and the father of young children.  He had a substantial criminal history in New South Wales and had been convicted of offences involving personal violence over many years.  Because the offender had a good record since coming to live in Queensland he was given the benefit of a suspended sentence.  The sentencing judge accepted that he was remorseful for the injuries caused to the complainant.  Keane JA (as his Honour then was) said:

“In my respectful opinion the applicant is unable to identify any decision of this Court which suggests that the imposition of a sentence involving actual imprisonment for 12 months was outside the range of a sound sentencing discretion in a case such as the present involving, as it does, a very serious injury brutally inflicted by a man with a stubborn history of personal violence.”[34]

[37] The present conduct of the applicant was a serious example of grievous bodily harm.  Whether there was one knife or two knives is immaterial.  The applicant escalated the fight with his brother by returning to the house to obtain the weapon and then went outside.  Even if it be accepted that his avowed purpose was only to frighten his brother, given their drunken state, that was a reckless situation and became a serious offence when, having clearly failed in his tactic, he used the knife.  Both the applicant and the complainant are very fortunate that death did not ensue.  The applicant’s drunkenness, which the applicant seems to offer as an excuse for his criminal conduct, is, at best, an explanation.  However, his poor criminal history which included the use of a knife on two occasions suggests that he readily resorts to violence.  The more recent of the two occasions on which a knife was used had occurred only two years before this offending conduct and he had been sentenced only in the previous August.  This conduct called for a sentence which reflected those matters and required the applicant to serve further time in actual custody.  The sentence imposed in all the circumstances must be seen as moderate.

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

[39] NORTH J: I have read the reasons for judgment of White JA.  I agree with the order proposed by her Honour for the reasons given by her Honour.