R v Norris[2012] QCA 57

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  I agree with the reasons of Applegarth J and with the orders he proposes.

[2] MARGARET WILSON AJA:  I agree with the orders proposed by Applegarth J and with his Honour’s reasons for judgment.

[3] APPLEGARTH J:  On 20 July 2011 the applicant, then aged 19, pleaded guilty to one count of unlawfully doing grievous bodily harm and one count of assault occasioning bodily harm whilst armed with an offensive instrument.  On 2 November 2011 she was sentenced to imprisonment for five years on the first count and three years imprisonment on the second count, with a parole eligibility date of 2 May 2013 (after 18 months).  The applicant seeks leave to appeal against the sentences on the ground that they are manifestly excessive.

The circumstances of the offences

[4] At about 12.30 am on 11 April 2010 the two complainants and two of their friends were travelling in a car along the Gold Coast highway.  They decided to stop at a service station to obtain some food.  The applicant, who was heavily intoxicated, was seated at the front of the service station.  Words were exchanged between the complainants’ group and the applicant, with the applicant abusing the complainants and disparaging their appearance.  The applicant threw a punch at the first complainant, but missed.  She and the applicant then became involved in a fight.  Her friends became involved.  Her group punched and kicked the applicant who also was kneed in the head.

[5] Other individuals broke up the fight.  The complainants and their two friends went back to their car and got into it.  The applicant went to her handbag, and was then seen running towards the car with something shiny and sharp in her hand.  It was a pair of scissors.  The applicant got to about one and a half metres from the car, which was moving at this stage.  The applicant came close to the side of the car where the first complainant was seated in the front passenger seat.  She attempted to bump the accused away by opening the car door.  The applicant dodged the car door by stepping back.  The first complainant got out of the car while it was still moving.  The applicant then lunged at her and stabbed her with the scissors on the right side of her chest.  The wound was two centimetres wide and six centimetres deep at the level of her sixth rib.  Her lung was punctured.

[6] The second complainant came to assist the first complainant.  The applicant was swinging the scissors and the second complainant was cut twice.  One cut was to her upper thigh, which she described as a small cut about 10 centimetres long, and she also received a small cut to her calf.  Those injuries are the subject of the assault occasioning bodily harm count. 

[7] The first complainant has breast implants, which because of their shape, must be supported by a bra.  She was unable to wear a bra for five weeks because of her injury, and says that because of this her right breast is out of shape and not symmetrical with her left breast.  She says that as a result she lost her employment as a topless waitress, promotional model and lingerie model.  She lost income and became depressed and anxious.  She receives treatment from a psychiatrist for anxiety and depression that was aggravated by the incident.  The incident gives her nightmares.

The applicant’s personal circumstances

[8] The applicant was born in late 1990.  She reported a dysfunctional family background, including problems associated with her father’s alcoholism and mental illness.  The applicant was bullied at the first high school she attended and left it.  She completed Year 12 at another school.  However, she has not worked since finishing high school in 2009.  She reported no previous long term relationship. Prior to being imprisoned she lived as a single woman with her mother. 

[9] She has a minor criminal history involving property offences.  On 1 April 2010 she was placed on probation for 18 months at the Coolangatta Magistrates Court for offences of wilful damage and public nuisance.  Up until the time of the offences which are the subject of this appeal, she drank alcohol daily.  She would drink cask wine until she was drunk.  She had used cannabis since 15 years of age and the scissors in her handbag were used to cut cannabis.

[10] On 27 April 2011 Mr Holt, a psychologist, diagnosed the applicant as suffering from alcohol dependence (which was then in remission) and cannabis dependence.  It is possible that the applicant has an underlying psychotic illness. By the time she saw Mr Holt in April 2011 the applicant had undertaken drug and alcohol programs.

[11] She was pregnant at the time she was sentenced, and expecting to give birth in March 2012.  As a result she will give birth whilst serving a term of imprisonment.

[12] The applicant was able to report few memories of the offences.  Police who arrived at the scene assessed her to be too intoxicated to participate in any record of interview.  The applicant reported to Mr Holt that she had been drinking alcohol with friends at a tavern that night and had limited recall of events.  She had a vague memory of being kicked in the head and reported lumps on her head, a black eye, bruises and abrasions.  She expressed regret for her actions.

The sentencing of the applicant

[13] The applicant was originally committed for sentence on a charge of wounding, a charge of assault occasioning bodily harm and a charge of going armed so as to cause fear.  She was committed on 26 October 2010 after indicating that she intended to plead guilty.  Upon a review of the prosecution file and the medical evidence an indictment was presented in March 2011 with alternative counts of grievous bodily harm.  The first count was unlawfully doing grievous bodily harm with intent to maim the first complainant.  The alternative count, to which the applicant pleaded guilty on 20 July 2011, was unlawfully doing grievous bodily harm to her.  The prosecution accepted that plea in discharge of the first count and submitted that the applicant should be given the benefit of an early plea on both charges to which she pleaded guilty. 

[14] The sentencing judge accepted that the offences were out of character.  He described the injuries as having been “unprovoked at the time they occurred”, and said that the fight appeared to have ceased, but the applicant armed herself and re-engaged with the other women when she could have left things where they were.  He described such offences as prevalent, and observed that “street violence with weapons is a problem on the Gold Coast.”  Reference was made to the decision of this Court in R v Bryan; ex parte A-G (Qld)[1] that deterrence must be the major factor influencing sentencing for street violence involving grievous bodily harm.  The sentencing judge identified a need to protect the community from such offences and stated:

“It was, in the circumstances, and at the time it occurred after the previous argument had ceased, unprovoked and vicious and cowardly to use a pair of scissors such as these on other girls who were unarmed and unable to defend themselves.”

[15] The sentencing judge concluded that the more serious offence of grievous bodily harm fell in a sentencing range of five to six years.  The prosecutor had submitted that the law was “quite settled when it comes to people who arm themselves and stab other people in a public setting in a street violence context to be somewhere within that range.”  The applicant was sentenced to imprisonment for five years on the first count and three years imprisonment on the second count.  Account was taken of what were described as “the fairly onerous bail conditions” to which the applicant had been subjected for 18 months, namely an 8 pm to 6 am curfew and reporting to police three times a week, in reducing the parole eligibility date below the one third mark.  A parole eligibility date after 18 months, namely 2 May 2013, was given. 

Submissions on appeal

[16] Counsel for the applicant submitted that the sentences were outside of the range in the circumstances, and that the applicant should be sentenced to three years imprisonment for the offence of causing grievous bodily harm and two years imprisonment for the offence of assault occasioning bodily harm whilst armed, with a parole release dated fixed after serving nine months imprisonment.  He submitted that the sentencing judge had erred in concluding that there was no operative provocation at the time the acts constituting the offence occurred.  The fact that some unmeasured period of time had elapsed between when the applicant was assaulted by the complainants’ group, and when she attacked the complainants, did not compel the conclusion that the provocation had ceased.  In addition, the first complainant had narrowly missed the applicant with a car door and then alighted from the vehicle in a move which might have been seen as confrontational.

[17] The applicant’s counsel also submitted that the circumstances of the applicant’s violence in this case could not be equated with the gratuitous “street violence” that existed in the matter of Bryan.  While the applicant’s violence occurred in a public place, it was not the same random attack on an unsuspecting member of the public as occurred in Bryan.  An analysis of comparable cases was said to support a range of between three and four years.

[18] Counsel for the respondent submitted that the sentencing judge was correct to describe the attacks as “unprovoked at the time they occurred.”  The applicant had not said that she was provoked:  she claimed that she could not remember what occurred.  The respondent submitted that the offence was properly characterised as “street violence”, and that the first complainant was stabbed in what could be seen as a “revenge attack” in a public place.  The range contended for by the prosecutor and accepted by the sentencing judge was submitted to be the correct range in the circumstances.

Were the sentences manifestly excessive?

[19] In Bryan[2] Williams JA (with whom the Chief Justice and Cullinane J agreed) stated:

“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.”

[20] In R v Brand[3] the Court, after reviewing a large number of sentences imposed for grievous bodily harm, observed:

“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] What may be described as “street violence” comes in a variety of forms.  However, in all of its forms, deterrence is an important factor in sentencing offenders who commit serious violence in public places.[4]

[22] Counsel for the respondent acknowledged that the circumstances of the grievous bodily harm offence in this case were less serious than in Bryan.  Williams JA described the circumstances in Bryan as “one of the worst examples of the offence of doing grievous bodily harm that one could find.”  Bryan initiated a fight, however, the complainant got the better of him.  Bryan opened a pocket knife and struck at least three blows with it in “a vicious attack”.  The complainant nearly died.  There were three open wounds extending across his chest.  One was such that the complainant’s heart and lung were visible through the wound.  If the complainant’s injuries had not been treated appropriately they would have caused death.  Bryan evaded detention until after he confessed to his then girlfriend who told the police.  Upon a successful appeal by the Attorney-General, Bryan was sentenced to imprisonment for a period of six years.

[23] The fact that the street violence that occurred in Bryan was of a more serious character than that inflicted by the applicant in this case did not make the sentencing judge’s reference to “street violence” and the principles of general deterrence discussed in Bryan inappropriate.  The applicant initiated the confrontation by insulting the complainants.  She was assaulted, but could have chosen to end the confrontation and tend to her wounds.  Instead, she armed herself with scissors and went after the complainants and their friends as they were departing the scene.  Her conduct in doing so may be described as “street violence”.  It is not completely accurate, however, to say that the impact of being assaulted “had ceased” by the time the applicant chose to continue matters.

[24] Her decision to chase after them as they drove off in a car had serious consequences, for which she deserves severe punishment.  However, the lapse of time between when the applicant was punched, kicked and kneed in the head and when she obtained the scissors from her bag apparently was not a lengthy period, and it is not obvious that the effect of being assaulted did not provoke the respondent to act the way that she did.  Her response was unjustified and excessive.  She armed herself with an offensive instrument.

[25] What the applicant intended to do with the scissors as the complainants drove away is uncertain.  She cannot recall or give reliable evidence in that regard.  She may have intended to wound the complainants.  She may have intended to damage their car.  There are other possibilities.  The respondent describes it as a “revenge attack”.  The applicant certainly intended to respond to what had occurred shortly earlier, and intended to use an offensive instrument to either frighten the complainants, damage their property or wound them.  It must be recalled that the prosecution did not press for a conviction on the count of unlawfully doing grievous bodily harm with intent to maim.  Unfortunately, whatever the applicant’s intent may have been in obtaining the scissors from her handbag, the first complainant’s opening of the car door and emerging from the car as if to continue the fight gave the applicant the opportunity to use the scissors to inflict a serious physical injury.

[26] The applicant’s use of the scissors makes this case more serious than a case of grievous bodily harm in which no offensive instrument has been used.  However, it is in a less serious category of case than others that warrant imprisonment in the range of five to six years.  This was not gang violence.  The scissors were in the applicant’s handbag for use in cutting cannabis, not for intended use in gratuitous street violence.  The injuries inflicted upon the first complainant were serious, but not as numerous or life threatening as in cases such as Bryan. 

[27] Cases involving the offence of unlawfully doing grievous bodily harm were recently reviewed by this Court in R v Neal[5] and R v Neilson.[6]  It is unnecessary to review again the authorities, many of which involve assaults using a weapon, often a glass, against an innocent bystander.  When regard is had to comparable cases, I conclude that the sentencing range in this case was not the range of five to six years adopted by the sentencing judge.  The sentence of five years imprisonment on the first count, and the sentence of three years imprisonment on the second count were manifestly excessive.  The sentencing discretion falls to be exercised by this Court.

[28] A substantial sentence is warranted because of the nature of the injuries that were sustained, and the fact that they were sustained through the use of an offensive instrument.  The injuries had serious consequences for the first complainant. 

[29] Account must be taken of the age of the applicant and the absence of any criminal history for assaults or other acts of personal violence.  Young offenders with limited criminal histories and promising prospects of rehabilitation who plead guilty and co-operate with the administration of justice should receive more leniency from courts than would otherwise be appropriate.[7]

[30] I consider that the sentencing range in the present case for the more serious offence of unlawfully doing grievous bodily harm is between three and four years imprisonment.  The personal circumstances of the applicant, including the steps that she has taken to address her alcoholism, should result in a sentence at the lower end of the range.  The sentencing judge gave a parole eligibility date below the one-third mark for the reasons previously noted.  The applicant’s counsel on this appeal sought a sentence of three years with a parole release date after serving nine months.  I consider that such a parole release date does not adequately reflect the seriousness of the offences, their consequences for the victims, especially the first complainant, and the need for deterrence.  The applicant’s early pleas of guilty and her co-operation with the criminal justice system justify an order for parole after serving one-third of the head sentence.  The appropriate order is release on parole rather than suspending the sentences after one-third has been served.  This will aid the applicant’s rehabilitation.  A sentence of three years on the first count, a sentence of two years on the second count and a parole release date after having served 12 months will provide the applicant with a certain date towards which she can plan to serve the balance of her sentences in the community.

Orders

[31] The following orders should be made:

1.Application for leave to appeal against sentence granted.

2.Appeal against sentence allowed.

3.Sentence varied by reducing to three years the term of imprisonment imposed on Count 2 of the indictment.

4.Sentence varied by reducing to two years the term of imprisonment imposed on Count 3 of the indictment.

5.The date the appellant is to be released on parole is 2 November 2012.