R v Arthy[2012] QCA 67

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  I agree with the reasons of Margaret Wilson AJA and with the order she proposes.

[2] WHITE JA:  I have read the reasons for judgment of Margaret Wilson AJA and agree with her Honour’s reasons and the orders which she proposes.

[3] MARGARET WILSON AJA:  The applicants Christopher James Arthy and Scott Edward Arthy are cousins.  In February 2011 they both pleaded guilty to unlawfully doing grievous bodily harm to Abdulhadi Hawedi, and on 20 April 2011 they were sentenced to three and a half years imprisonment with parole eligibility after 14 months (that is, 20 June 2012).  They seek leave to appeal against their sentences on the ground of manifest excessiveness.

The facts

[4] The offence was committed on or about 10 April 2009 at the Planet Nightclub in Fortitude Valley, where the complainant’s estranged wife Vanessa Patterson worked as a manager.

[5] Scott Arthy was the director of a company which provided CCTV and computer systems to nightclubs and hotels and was employed at the nightclub on a casual basis as a promotions manager.  Christopher Arthy was a tattoo artist.  He worked as a subcontractor to his cousin Scott, and had previously done some work for the nightclub.

[6] The complainant was a personal fitness trainer, aged about 33 years.  He was a UK citizen of Libyan heritage.  On the evening in question he paid an unexpected visit to the nightclub to see his wife.  He consumed a considerable amount of alcohol while he was there.  After closing time, when the patrons had gone, some of the staff and their friends had a few drinks together.  The complainant and the two applicants were among them.  By this time the complainant was clearly intoxicated, dancing on a table and butting into people.  He had an argument with his wife and she pushed him away.  The sentencing judge inferred that he was becoming a nuisance or making a nuisance of himself; at about 4.30 am he was escorted from the club, apparently very upset.  Sometime later he was observed on the roof of the club.

[7] About 6.15 am the complainant returned to the club carrying a metal pipe which he pushed through the door.  He made two attempts to enter the club.  On the first occasion Christopher Arthy told him to “piss off” or the police would be called.  On the second occasion he pushed the pipe through the lattice on the rear door of the premises, and in doing so struck Scott Arthy scratching his arm.  The two applicants ran out of the club after him.  He fell over some way down the track outside the club, whereupon Christopher Arthy jumped on him and held him down while Scott Arthy punched him several times to the head.  Another person intervened.  Video footage showed that the complainant was conscious immediately after he fell, but unconscious after the assault.

[8] Scott Arthy tried to move him to see whether he was conscious.  Chris Arthy removed his shoes.  Scott Arthy poured water on him to try to wake him up.  He was propped up in a sitting position against a post for some minutes, and about 40 minutes after the assault he was taken inside and placed on a couch.  He had a further fall from the couch, which the prosecutor conceded might have contributed to his injuries.

[9] Someone suggested calling an ambulance.  Scott Arthy said he knew first aid and that an ambulance was unnecessary.  The prosecutor conceded that, apart from being afraid of the consequences, Scott Arthy may not have realised the seriousness of the situation.  Others were reluctant to involve the authorities because the club had been operating beyond licensed hours.

[10] About 10 am (almost six hours after the assault) another staff member took the complainant to Royal Brisbane Hospital in a private car.  Scott Arthy assisted in getting him into the car.  On admission, he had a Glasgow Coma Scale score of eight out of a possible 15[1].  He had grazing to the right temple, swelling on the left side of the face, small lacerations to the left brow, bruising of the left flank and collarbone, multiple abrasions and cuts to the hands and feet, right flank and right hip.  He had fractures to the face, nasal bone and right lower jaw.  He required intubation and ventilation for his breathing and sedation, and was placed in the Intensive Care Unit of the hospital after consultation with a neurosurgeon.

[11] The complainant remained in that hospital for over a month.  He had prolonged difficulty breathing, for which a tracheotomy was performed.  He was given physiotherapy and occupational therapy before being transferred to the Brain Injuries Rehabilitation Unit at the Princess Alexandra Hospital because of impaired speech and memory.

Victim impact

[12] By the time of the sentence proceedings, the complainant had returned to Libya.  He had residual impairment of his balance and his speech.  His marriage had broken down – although the sentencing judge accepted that the extent, if any, to which the assault had contributed to that was minimal, given the pre-existing problems in the relationship.  His work as a personal fitness trainer at a gymnasium in London had been adversely affected by his loss of muscle tone, strength, balance and co‑ordination.  He had lost confidence and had had difficulty in sleeping.  And he had incurred expenses and loss of income.  There had been no–one here able to communicate the extent of his injuries to his family in Libya, because only his brother spoke any English: this had caused him distress.

Scott Arthy

[13] Scott Arthy was aged 29 years at the time of the assault, and 31 at sentence.

[14] He completed high school and then did some subjects in IT at Griffith University before entering the security industry and obtaining a security provider’s licence in 1998.  He owned a business that provided security guards and subcontractors, and then diverted into providing and maintaining scanning and computer systems to clubs and hotels.  He was also involved in the promotions industry, and it was that involvement which caused him to be at the Planet Nightclub on the evening in question.

[15] At sentence he continued to be involved in providing computerised security services to clubs and hotels.

[16] He had no previous or subsequent convictions for offences of violence.  He had been convicted of two counts of obtaining a financial advantage against the Commonwealth, for which he had been ordered to perform community service and make reparation.  He was later found to have breached the order, but no further action was taken.  The sentencing judge considered his criminal history to be of no particular significance.

Christopher Arthy

[17] Christopher Arthy was aged 30 years at the time of the assault, and 32 at sentence.

[18] He left school at the age of 18 after repeating Year 12.  He worked on cattle stations for four years and then completed a TAFE course in hospitality.  He worked in a bottle shop in Mackay for a year and then did managerial work in a bar for a couple of years, while starting an airbrushing business.  He and his partner and young child moved to Brisbane, where he met his cousin Scott Arthy, who helped him obtain work in various clubs.

[19] He had a criminal history which the sentencing judge described as “minor and not of any import to speak of in this matter”.  With respect, that description was unduly generous, as was the prosecutor’s concession that the indicators of violence were somewhat dated.  It included aggravated assault on a child under 16 in 1997 (when aged 18), and an animal cruelty offence in 2002, for both of which he was convicted and fined.

[20] After his arrest and release on bail, he worked for a time in a smash repair shop.  The relationship between him and the mother of his child ended, although they remained on good terms and he had access to the child.  He was unemployed for a period, and fell into depression and excessive drinking.  He moved back to Mackay where he obtained work in a bar.  He sought help for his depression, and was prescribed anti-depressant medication.  A number of referees spoke well of him, clearly regarding this conduct as out of character.

Submissions at sentence

[21] The prosecutor submitted to the sentencing judge that a sentence of three and a half to four years imprisonment with parole eligibility after one-third should be imposed on the applicants.

[22] Counsel for Scott Arthy submitted that the head sentence should be three years imprisonment, with suspension or parole eligibility after nine to 10 months (at about a quarter).

[23] Counsel for Christopher Arthy asked for a head sentence of two and a half to three years imprisonment with immediate release on parole.

Remarks by the sentencing judge

[24] The sentence hearing took place two years after the assault.  The sentencing judge found that the complainant’s injuries had abated to the point of a 90 per cent recovery, without any permanent damage.  His Honour said –

“The aggravating features of this whole incident are these: the repeated punching of a defenceless person being held down by another, the failure to render any assistance to what was a lifeless or motionless person lying on the ground after such an attack, not calling an ambulance, the seriousness of the injuries inflicted upon the complainant which involved substantial medical intervention, the fact that the conduct of both of you amounted to a completely disproportionate reaction to the conduct of the complainant in pushing the pipe through the door. I don't regard any of his earlier antisocial conduct as constituting provocation sufficient to justify any physical attack on him. In short, you took the law into your own hands because you were angry with him.”

[25] His Honour treated the applicants as equally culpable.  He described the offence as “alcohol driven”, and observed that neither of the applicants was youthful – Scott Arthy was 29 years old and Christopher Arthy was 30 at the time of the assault.

[26] His Honour treated the pleas as timely, and noted that they had avoided the costs of a trial and that the complainant had been saved the trauma of having to return to Australia from Libya and give evidence.

[27] After considering the personal circumstances of the applicants, his Honour said –

“The sentence I must pass upon you must be in conformity with the principles of the Penalties and Sentences Act. One of the major principles, in my view, emanating from these facts is that of deterrence to send a message firmly to the community that people cannot become involved in violence of this nature and not expect to be properly punished. The Court of Appeal in recent times has consistently expressed its abhorrence of the unprovoked, alcohol-induced, gratuitous violence which has caused so much tragedy in the lives of victims and the offenders' families and, of course, to the offenders.”

Submissions on appeal

[28] Counsel for Christopher Arthy submitted that the sentence imposed on his client was manifestly excessive having regard to criteria identified as relevant in a number of authorities referred to at first instance –

(a)that no weapon was used;

(b)that there was no kicking;

(c)that the assault, although not trifling, was not a sustained one;

(d)that the complainant was not left with permanent injury: he had made a complete [sic], if somewhat slow, recovery;

(e)that the assault did not result from gratuitously loutish behaviour by either applicant: rather, it was an excessive response to provocative conduct by the complainant;

(f)that the applicants remained at the scene, “even if their aftercare wasn’t all that it could have been.” [2]

He made a somewhat faint submission that his client had played a lesser role in the assault than his cousin Scott, acknowledging that the failure to draw a distinction based on the applicants’ roles alone might not justify interference with the sentence.  He went on to submit that there were mitigating factors in his client’s case which were not present in Scott Arthy’s case and that imposing the same sentence on them both gave no weight to that material.  He submitted that his client’s plea of guilty was of particular utility because it obviated the need for the complainant to return to Australia to give evidence. (Of course, that was just as true of the other applicant’s plea.) His ultimate submission on appeal was that the sentence imposed on his client should have been in the range of two and a half to three years imprisonment with a parole release date fixed at one-third.

[29] Counsel for Scott Arthy submitted that the sentence imposed on his client was manifestly excessive for two reasons –

(a)that the sentencing judge gave insufficient consideration to the persistent, antisocial and intoxicated behaviour of the complainant which preceded the offence; and

(b)that the sentencing judge erred in characterising his client’s failure to render assistance to the complainant as “callous disregard”.

She submitted that the sentence imposed on her client should have been three years imprisonment with a parole release date after nine to 10 months (that is, at less than a third).

Comparable sentences

[30] In R v Brand[3] Williams JA said –

“...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.”

[31] Brand was concerned with an attack upon a 72 year old man by a male aged 25.  He heard loud music coming from the applicant’s house next door, which continued throughout Saturday night and on the following day until early afternoon.  It then stopped for a period but recommenced about 6.30 pm.  He went to where the music was coming from, knocked on a side wall and asked if anyone was home.  The offender emerged, screamed at him to get off his property, and commenced to punch and kick him.  The offender punched the complainant repeatedly and bit him, despite the offender’s partner trying to break the two apart.  The complainant suffered multiple severe displaced facial fractures particularly to the region of the upper jaw, as well as facial swelling and lacerations, and abrasions to his knees, one elbow and the lower part of his abdomen.  The offender had a more serious criminal history than either of the present applicants.  There were some mitigating factors, including the fact that the offender was under a number of stressors at the time of the offence.  He pleaded guilty to unlawfully doing grievous bodily harm and was sentenced to three years imprisonment, suspended after nine months, with an operational period of three years.  The Court of Appeal refused his application for leave to appeal against the sentence.

[32] R v Tupou; ex parte A-G (Qld)[4] was a case of unprovoked street violence.  The offender was an 18 year old offender with a minor criminal history; he weighed about 90 kilos.  He and his girlfriend were in a taxi at a rank in the Brisbane CBD when the complainant, a slightly built man aged 25 with cerebral palsy, moved to the passenger side front door, waving his arms.  On the offender asking him, “what did you say, fuckhead?” he returned to the queue.  The offender then got out of the cab, moved quickly towards the complainant, and without warning punched him severely enough to knock him to the ground.  The offender shaped up to the complainant, who was on the ground, and punched him a second time.  He also went to kick the complainant, although it was not clear whether he made contact.  The complainant suffered a depressed fracture of his right cheek, a fracture to the left cheek, a broken nose, a fractured jaw and the loosening of three teeth.  Unable to eat solids for a couple of months after the incident, he lost weight.  He experienced severe headaches for a couple of months and had difficulty sleeping.  He lost work and self confidence.  He would require ongoing dental treatment and possibly maxilo facial surgery.  The offender pleaded guilty to unlawfully doing grievous bodily harm and was sentenced to three years imprisonment suspended after nine months for an operational period of three years.  On an Attorney’s appeal against the leniency of the sentence, the Court of Appeal interfered only to the extent of providing for suspension after 15 months rather than nine.

[33] In R v Amituanai[5] the offender and the complainant had been in groups of young people drinking at a hotel.  In the early hours of the morning there was a melee at a taxi rank a short distance down the road.  The offender was assaulted by a severe blow to the side of his face by a member of the complainant’s group.  The offender went in unsuccessful pursuit of his attacker and then, in a fit of rage, kicked the complainant in the head causing him to fall backwards to the ground and hit his head heavily on the bitumen.  He sustained very severe injuries, including brain damage.  The offender immediately went to his assistance, and was immediately sorry for what he had done.  He had no criminal history.  He pleaded guilty to unlawfully doing grievous bodily harm and was sentenced to three years imprisonment with a recommendation for parole eligibility after nine months.  The Court of Appeal refused his application for leave to appeal against sentence, the majority observing –

“This application has caused us some concern.  There is a need to deter loutish brawling in the streets by intoxicated young men, the consequences of which have been so serious for the complainant who had done no wrong, and to express disapproval at the use in this way of the fighting skills acquired by the applicant which, had he been capable of sober reflection, he must have known had an obvious potential for doing serious harm.  On the other hand there is little benefit in imposing a crushing sentence upon one whose life had been relatively blameless and who has a contribution to make to the community.

Whilst it would have been possible for a sentencing judge to have given a greater effect to the mitigating factors and antecedents, we have concluded that it would not be right to interfere with the sentence.  It lies well within the limits of exercise of a sound discretion.”[6]

Discussion

[34] The maximum penalty which might have been imposed on each applicant was 14 years imprisonment.  The sentences imposed sit comfortably with those in the comparable decisions just discussed.

[35] The sentencing judge correctly identified the aggravating features of the whole incident.[7]  The applicants were not callow youths.  The complainant was subjected to repeated blows after he fell, in what was an alcohol fuelled and quite disproportionate response to his annoying, even provocative conduct.  The sentences properly reflected the requirements for punishment, denunciation, and personal and general deterrence.

[36] The applicant’s deliberate and self-interested failure to seek assistance for the injured complainant was indeed callous, and the prosecutor’s concession that Scott Arthy may not have realised the seriousness of his plight may have been generous.

[37] His Honour did not err in treating the criminality of the two applicants as equivalent.  They both pursued the complainant when he ran out of the club, and one jumped on him and held him down while the other inflicted the blows.  I do not accept that the mitigating factors in Christopher Arthy’s case were such that he ought to have received a less severe penalty than his cousin.  The depression and excessive drinking into which he descended after the assault were not suggested to have been pre-existing; his criminal history was perhaps dated, but in reality of more concern than his cousin’s; and his Honour astutely assessed the favourable references tendered on his behalf when he said –

“...but, of course, that is so often the situation in tragic cases like this, that these incidents arise and involve people who hitherto have not been known to be of violent disposition.”

[38] In my view the sentences were not manifestly excessive.

Further submissions

[39] As counsel noted in their written submissions, the endorsement on the indictment incorrectly recorded the date of the sentence as 19 April 2011 and incorrectly recorded that the sentences were partially suspended instead of recording that a parole eligibility date was fixed.

[40] Since the hearing of the appeal, the court has obtained copies of the verdict and judgment records, where, too, the sentences were incorrectly recorded as being partially suspended.  Rule 62 of the Criminal Practice Rules provides –

“62 Verdict and judgment record

...

(3)A copy of the record must be given to the chief executive (corrective services) if—

(a)an Act provides for it to be given; or

(b)the person is being committed into, or remanded in, custody; or

(c)the record is otherwise relevant to the functions and powers of the chief executive (corrective services).

(4)The record is a sufficient warrant for executing the judgments noted on it.

(5)The proper officer may amend the record if it is inaccurate in any respect and, if a copy of an inaccurate record has been given to the chief executive (corrective services), the proper officer must replace the copy with a copy of the record as amended.”

[41] Copies of the verdict and judgment records were supplied to Queensland Corrective Services, which regards the applicants as due for release on 19 June 2012 “as they are serving suspended sentences.”[8]

[42] At the court’s request its registrar wrote to the parties asking whether there was any reason why the court should not give directions for the correction of the endorsement on the indictment and the verdict and judgment records.

[43] By s 180 of the Corrective Services Act 2006 (Qld) a prisoner may make an application for parole up to 180 days before his or her parole eligibility date in anticipation of its being dealt with by the Parole Board on or soon after that date.  However, where there is an appeal against the sentence, such an application may not be made until the appeal is decided.  By s 193(3) the Parole Board has 180 days to make a decision, or 210 days if the decision is deferred.

[44] Counsel for the applicants submitted that their clients would be prejudiced by the indictment and verdict and judgment records now being corrected.  In essence they submitted that while the court’s decision has been reserved they have lost the opportunity of securing the places in the queue of applications to come before the board that they would otherwise have secured.  They asked the court to set aside the sentences actually imposed and substitute partially suspended sentences.

[45] Counsel for the respondent submitted that the proposed corrections should be made, and opposed the imposition of partially suspended sentences.  She observed that in the principal submissions counsel for each applicant had sought lower head sentences with earlier parole release dates, submitting that their cases called for parole orders with their supervisory conditions.

[46] Further, she submitted, the applicants would not be prejudiced by their parole eligibility date being 20 June 2012, as that date is still (about) three months away.  In this regard she relied on a communication from Andrew Leese, Commissioner’s representative, Parole Boards to Susan Gillies, a clerk in the Office of the Director of Public Prosecutions dated 21 March 2012.  Mr Leese said that the proposed corrections would not preclude the applicants from applying for or being granted parole on 20 June 2012.  Mr Leese said –

“The proposed orders…. would not preclude them from applying for or being granted parole on 20 June 2012, notwithstanding the statutory provision for parole boards to make a parole decision within 180 or 210 days….The actual period a Board takes to make a decision varies between cases. Therefore it would not be impossible for [these applicants]…. to be granted parole on 20 June 2012, however this would depend on a range of factors related to the individual circumstances of each case.”

[47] The indictment and the verdict and judgment records should be amended to reflect accurately the date the sentences were pronounced and what the sentences were.  These are cases calling for parole rather than partial suspension of the prison terms.  I am unpersuaded that the likelihood of the applicants being prejudiced by the records now being corrected is such that the parole orders made by the sentencing judge should be set aside in favour of partial suspensions.

Conclusion

[48] In all the circumstances, the applications for leave to appeal against sentence should be refused, and the indorsement on the indictment and the verdict and judgment records should be corrected.

Orders

[49] I would make the following orders in CA 109/11 -

(1)Application for leave to appeal against sentence refused.

(2)Direct the Registrar of the District Court to amend the court order sheet attached to the indictment as follows –

(i)by deleting the date “19/04/2011” and substituting the date “20/04/2011”;

(ii)by deleting the sentence imposed on Christopher James Arthy and substituting –

“IMPRISONMENT

Order that Christopher James Arthy be imprisoned for a period of three and a half years.

Order that he be eligible for parole on 20 June 2012.”

(3)Direct that the Registrar of the District Court amend the verdict and judgment record of Christopher James Arthy by deleting the sentence and substituting the sentence set out in the preceding direction.

(4)Direct that the Registrar of the District Court provide the chief executive (corrective services) with a copy of the amended verdict and judgment record.

[50] I would make the following orders in CA 122/11-

(1)Application for leave to appeal against sentence refused.

(2)Direct the Registrar of the District Court to amend the court order sheet attached to the indictment as follows –

(i)by deleting the date “19/04/2011” and substituting the date “20/04/2011”;

(ii)by deleting the sentence imposed on Scott Edward Arthy and substituting –

“IMPRISONMENT

Order that Scott Edward Arthy be imprisoned for a period of three and a half years.

Order that he be eligible for parole on 20 June 2012.”

(3)Direct that the Registrar of the District Court amend the verdict and judgment record of Scott Edward Arthy by deleting the sentence and substituting the sentence set out in the preceding direction.

(4)Direct that the Registrar of the District Court provide the chief executive (corrective services) with a copy of the amended verdict and judgment record.