R v Clarke[2012] QCA 318

COURT OF APPEAL

de JERSEY CJ

FRASER JA

BODDICE J

CA No 244 of 2012

DC No 89 of 2011

THE QUEEN

v

CLARKE, David AlexanderApplicant

BRISBANE 

DATE 22/11/2012

ORDER

THE CHIEF JUSTICE:  I invite Justice Boddice to give the first judgment.

BODDICE J:  The applicant seeks leave to appeal sentences of imprisonment imposed on 12 September 2012 in the District Court of Queensland.  The ground of appeal, if leave be given, is that the sentences imposed were manifestly excessive having regard to all the circumstances of the offences and the antecedents of the applicant.

The sentences of imprisonment were imposed following pleas of guilty to one count of grievous bodily harm and one count of assault occasioning bodily harm.  Both offences arose out of one incident.  The complainant was the applicant's brother-in-law.

The applicant was sentenced to two and a half years' imprisonment on the count of grievous bodily harm, suspended after serving a period of nine months, for an operational period of three years.  The applicant was sentenced to six months' imprisonment on the count of assault occasioning bodily harm.  The sentences of imprisonment were to be served concurrently.

The applicant does not contend either of the head sentences was manifestly excessive.  He contends the requirement that he serve nine months' imprisonment was, in the circumstances, manifestly excessive.

The offence of grievous bodily harm involved the applicant punching the complainant about six times to the left side of his face.  The assault occasioning bodily harm involved the applicant punching the complainant, whilst he was on the ground, with a closed fist into the ribs.

As a result of the blows to the complainant's face the complainant suffered a fractured left orbital eye socket with a 13 millimetre bone displacement.  The complainant required surgery for the open reduction to set bones and the internal fixation of screws and/or plates.  The complainant also suffered from diplopia, double vision, and sag or displacement of the eyeball.

The offences occurred against a backdrop of the breakdown of the marriage of the complainant and the applicant's sister.  This had led to the applicant's sister and her children being forced from their home.  There was also some alleged inappropriate behaviour by the complainant to one of her children.

The applicant, who was employed by the complainant, raised his sister's predicament.  A heated exchange occurred, following which the complainant dismissed the applicant from his employment and demanded the return of a ute and equipment.  At that point the applicant attacked the complainant, committing the offences of grievous bodily harm and assault occasioning bodily harm.

Whilst the sentencing Judge accepted the circumstances of the marriage breakdown were relevant to the commission of the offences they did not diminish considerably the criminality of the applicant's behaviour.

The applicant was born on 8 May 1975.  He was 35 at the time of the offences.  He is now aged 37 years.  He has no prior criminal history.  He is otherwise of good character.  References tendered on sentence spoke highly of him and said the offences were out of character.  A psychologist's report explained a number of stressors being present at the time of the offences.

The sentencing Judge accepted the offences were out of character and occurred spontaneously.  The sentencing Judge also accepted the applicant's pleas of guilty exhibited a saving to the community and evidenced remorse, both for the applicant's behaviour and concern for the complainant.  The sentencing Judge considered these factors should have an effect both in lessening the head sentence and the period which must be served in custody.

The applicant submits the sentence is manifestly excessive in that the circumstances of the offences did not require for the applicant to serve any actual time in custody.  The applicant relies on a number of authorities to support that contention.

A review of those authorities indicates there have been occasions when a sentence for an offence of grievous bodily harm, which did not involve serving any actual imprisonment has not been interfered with on appeal - R v O'Grady; ex parte Attorney-General [2003] QCA 137, R v Denham; ex parte Attorney-General [2003] QCA 74.  However, those decisions must now be considered having regard to the reasons in R v Tupou; ex parte Attorney-General (Qld) [2005] QCA 179.

Further, any consideration of previous sentences for offences of grievous bodily harm must have regard to the particular circumstances of that case.  The observations of Williams JA in the R v Brand [2006] QCA 525 at [15] are particularly apposite:

"The appropriate sentence for the offence of grievous bodily harm will vary significantly and 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."

In the present case, the offences were serious, involving the infliction of multiple blows which resulted in substantial harm to the complainant.  There is nothing in the authorities relied upon by the applicant which would support a conclusion that the imposition of a sentence requiring actual time to be served was manifestly excessive.

However, the applicant was a mature man, with no prior criminal history.  He had a good work history and was otherwise of good character.  The offences occurred in circumstances of significant stressors upon the applicant.  The applicant pleaded guilty to the offences.  It was accepted that he was remorseful for his action.  He had strong prospects of rehabilitation.

Balancing the need for deterrence against the substantial prospects of rehabilitation a requirement that the applicant serve nine months in custody was manifestly excessive in all the circumstances.  The offences involved a spontaneous act rather than a calculated course of conduct.  There was no weapon used in the attack.

The highly unusual and special circumstances of the offences, and of the applicant, support a conclusion that a sentence requiring the applicant to serve substantially less than nine months' imprisonment before suspension was called for in all of the circumstances.

The applicant has now served 71 days in custody.  That is a substantial period for a person with no prior criminal history and whose actions were spontaneous rather than calculated.

I would grant leave to appeal, and allow the appeal, to the extent that the sentences of imprisonment imposed on the applicant for the offences of grievous bodily harm and assault occasioning bodily harm be suspended as and from 22 November 2012, for an operational period of three years.

THE CHIEF JUSTICE:  I agree.  The circumstances which preceded the commission of these offences were most unusual and provide a substantial explanation for what the applicant did.  The result must not be interpreted or subsequently presented as suggesting any departure from the Court's appropriately hard line in punishing for serious violent crime.  This case should very much be seen as occupying a special category of its own.

FRASER JA:  I agree with the reasons of Justice Boddice and also with the additional reasons of the Chief Justice, and with the order proposed by Justice Boddice.

THE CHIEF JUSTICE:  The order is that indicated by Justice Boddice.