R v Tahir; ex parte Attorney-General
[2013] QCA 294
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- Notable Unreported Decision
- Appeal Determined (QCA)
- R v Tahir; ex parte Attorney-General[2013] QCA 294
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R v Tahir; ex parte Attorney-General[2013] QCA 294
R v Tahir; ex parte Attorney-General[2013] QCA 294
SUPREME COURT OF QUEENSLAND
CITATION: | R v Tahir; Ex parte Attorney-General (Qld) [2013] QCA 294 |
PARTIES: | R |
FILE NO/S: | CA No 297 of 2012 DC No 374 of 2012 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by Attorney-General (Qld) |
ORIGINATING COURT: | District Court at Southport |
DELIVERED ON: | 4 October 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 July 2013 |
JUDGES: | Holmes and Fraser JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of grievous bodily harm – where the respondent was sentenced to eight and a half years imprisonment with parole eligibility after serving one third of the term of imprisonment – where the complainant suffered severe physical and psychological injuries as a result of the offending – where the respondent had no prior conviction for offences of violence – where the respondent’s remorse, young age, attempted rehabilitation and favourable references were taken into account by the sentencing judge – where the appellant contended that the sentencing judge erred in failing to declare that the respondent be convicted of a serious violent offence – where the appellant otherwise argued that the term of imprisonment was within the proper exercise of the sentencing discretion – whether the failure to make a declaration reflected an error in the exercise of the sentencing discretion – whether the sentence was manifestly inadequate Corrective Services Act 2006 (Qld), s 184(2), s 192 Penalties and Sentences Act 1992 (Qld), s 9(4), s 161B(3)(b) Elias v The Queen; Issa v The Queen (2013) 87 ALJR 637; [2013] HCA 31, cited Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered R v Corrigan [1994] 2 Qd R 415; [1993] QCA 417, cited R v Daley [1999] QCA 332, considered R v Daly (2004) 147 A Crim R 440; [2004] QCA 385, cited R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63, considered R v King & Morgan; ex parte Attorney-General (Qld) (2002) 134 A Crim R 215; [2002] QCA 376, considered R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited R v Lewis; ex parte Attorney-General (Qld) [2003] QCA 133, cited R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, considered R v Murray [2010] QCA 266, cited R v Thomason; ex parte A-G (Qld) [2011] QCA 9, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, considered |
COUNSEL: | A W Moynihan QC, with S J Bain, for the appellant M J Byrne QC for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Fisher Dore Lawyers for the respondent |
- HOLMES JA: I agree with the reasons of Fraser JA and the orders he proposes.
- FRASER JA: The respondent was convicted on his plea of guilty to one count of grievous bodily harm committed on 13 November 2010. On 16 October 2012 he was sentenced to eight and a half years imprisonment with an order that he be eligible for release on parole on 12 September 2013 after serving two years and ten months (one third of the term of imprisonment). A period of 703 days of pre-sentence custody between 13 November 2010 and 16 October 2012 was declared to be time served under the sentence.
- The Attorney-General has appealed against the sentence on the grounds that the sentencing judge erred by not declaring the respondent to be convicted of a serious violent offence pursuant to s 161B(3)(b) of the Penalties and Sentences Act 1992 (Qld) and that the sentence is manifestly inadequate. Section 161B(3) provides:
“If an offender is –
(a)convicted on indictment of an offence –
(i)against a provision mentioned in schedule 1; or
(ii)of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and
(b)sentenced to 5 or more, but less than 10, years imprisonment for the offence, calculated under section 161C:
the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.”[1]
- The effect of that declaration in this case would be to defer eligibility for parole until the respondent has served 80 per cent of the term of imprisonment: Corrective Services Act 2006, s 182. The appellant contended that the term of eight and a half years imprisonment was within the proper exercise of the sentencing discretion but the failure to make the declaration, or the failure to fix a parole eligibility date at between one third and 80 per cent of the term of imprisonment, was plainly unreasonable in the circumstances of this case.
Background and circumstances of the offence
- The circumstances of the offence and the background to it were set out in a statement of facts. A relationship between the 21 year old respondent and the 20 year old complainant broke down after the respondent became very controlling of the complainant in relation to her social activities. In late 2009 the complainant obtained a domestic violence order but, after the respondent apologised, she withdrew her complaint and the order was revoked. In May 2010 the complainant left the respondent, changing her surname and other identifying details, and relocated to the Gold Coast. In July 2010 the respondent, who had in some unknown way obtained the complainant’s new telephone number, contacted her and they gradually re-established a relationship, with the respondent behaving very well. In November 2010 the respondent moved into the complainant’s apartment.
- In the early hours of 13 November 2010 the complainant returned to the unit after having spent the evening at work and later in a bar with her employer. Immediately after she entered the unit and switched on the light, the respondent, who was intoxicated and motivated by unreasonable jealously, attacked her. He lifted her off the ground whilst holding her in a headlock and abusing her. He then carried her into the kitchen and hit her in the head with an empty rum bottle seven or eight times, causing a two centimetre long deep puncture wound to the left side of her forehead, severe swelling to her left eye (causing it to shut), three slice-like cuts to her upper left eyelid, a two centimetre cut over her cheekbone, and a fracture to the floor of her left orbit. The respondent then picked up a knife in the kitchen with his free arm and held it to the complainant’s throat. The complainant suffered a one centimetre deep cut to her right middle finger and a graze to her index finger when she pushed the knife away. The respondent held the knife near the complainant’s mouth. He pulled the knife across the complainant’s face, cutting through the full thickness of her mouth (two centimetres to the right and four centimetres to the left of her mouth) and severing a quarter of her tongue. The respondent attempted to stab the complainant with the knife to her left side but was prevented from doing so by the complainant’s handbag. The knife grazed the complainant’s back. After the complainant escaped the headlock, the respondent dragged her into a bedroom. The complainant grabbed the doorway and screamed. Neighbours heard a “blood curdling” scream, and rushed to the unit, banging on the door to be let in. The respondent forced the complainant into the bedroom and strangled her with two hands around her neck, lifting her off the bed. When the neighbours banged on the door the respondent let the complainant fall to the floor, where she pretended to be unconscious.
- The neighbours heard the respondent yelling out that his girlfriend needed assistance and to call an ambulance. One of the neighbours attempted to convince the respondent to let her inside so that she could check on the complainant but the respondent did not open the door. The respondent called 000 and demanded that the operator provide an ambulance, giving a false version of events that he had come home and discovered the injured complainant. Subsequently the respondent turned on a light and stood over the complainant, lent down beside her, grabbed her face, and told her that if she told anyone that it was him he would come after her family and that “you know what I am capable of”. The respondent continued to yell out demanding assistance for the complainant whilst continuing to refuse to open the door to the neighbours standing outside. The police quickly arrived and when the respondent did not comply with their direction to open the door a police officer forced the door open. The respondent’s clothing was covered in blood, which was also on his face and limbs. The respondent was arrested.
- The complainant underwent surgery the same morning for the extensive cuts to her scalp, face, tongue and right middle finger. She was discharged from hospital two days later. Her facial wounds resulted in permanent scarring. If they had been untreated, they would have permanently affected her health. The complainant’s tongue and the cut on her right middle finger were sutured. Twelve days after the attack she underwent surgery for reconstruction of her left orbital floor with the insertion of a titanium implant into the floor of the eye socket. If that injury had been left untreated she would have been left with a sunken eye. The complainant has no feeling in her right middle finger, a constant facial twitch behind her left eye where the metal plate was inserted, loss of sensation in her tongue, ongoing discomfort, and difficulty speaking clearly. Victim impact statements referred to what the sentencing judge described as “the devastating physical and emotional impact upon the complainant and the flow on impact to her family …”. The complainant needed psychological treatment, suffered significant financial loss, required constant medication which has side effects, and, as the complainant put it, her life, as it was, was at an end.
The respondent’s personal circumstances
- The respondent had difficulties at school and did not complete his final school examinations but he completed some courses and obtained gainful employment. He had a criminal history in South Australia which mostly concerned traffic matters. In addition, in September 2008 he was given a bond, with no conviction being recorded, for offences of “carry offensive weapon” he committed in December 2007 and “resist police” committed in February 2008. The respondent had no prior conviction for any offence of violence. He relied upon very favourable references, including one by a man with substantial experience in the criminal justice system who said that he had seen a remarkable improvement and great progress in the respondent during eighteen months of incarceration. Two psychologists who examined the respondent expressed opinions that the respondent had expressed genuine shock and remorse for his offending conduct. The respondent had commenced to address his underlying anger management issues by courses within the jail system and completed a treatment program recommended by one of the psychologists. Both psychologists considered that the respondent’s rehabilitation would be assisted by further treatment. One of the psychologists, Mr Hatzipetrou, expressed the opinions that “[i]n the absence of treatment and ongoing abuse of alcohol and illicit drugs, … [the respondent’s] risk of future assault (if reconciled) upon his partner was moderate to high” and that the risk of future violent offences towards others was likely to be moderate.
The sentencing remarks
- The sentencing judge detailed the circumstances of the offence, including its serious impact upon the complainant, and the respondent’s personal circumstances. The judge discussed the prosecutor’s submission that the serious features of the offence warranted a sentence of at least 10 years imprisonment and the submission for the respondent that, taking into account the respondent’s young age and the absence of any prior history of violence and his attempts at rehabilitation during the lengthy period of remand, the appropriate sentence was in the order of six and a half years with no serious violent offence declaration. After discussing sentencing principles, including those relating to the imposition of serious violent offence declarations, and the serious features of the offence, the judge referred to the absence of any prior convictions of the respondent for offences of violence and references which indicated that the offence was out of character for the respondent, subject to the qualification that there was some conflict between the respondent and the complainant during their relationship. The sentencing judge also took into account the respondent’s youthfulness and the indication of remorse and insight into his behaviour in the psychologists’ reports. She determined that, because of the respondent’s youth, lack of relevant prior convictions, and other personal matters, a serious violent offence declaration should not be made. The judge decided to reflect the respondent’s plea of guilty, his personal background, his genuine remorse, and the other matters indicated in the reports, including the respondent’s steps towards rehabilitation, in an early parole eligibility date after he had served a third of the sentence of imprisonment of eight and a half years.
Consideration
- In support of the contention that the sentencing judge erred in failing to make a serious violent offence declaration, the appellant emphasised the respondent’s persistence in and the extreme violence of his assault upon the complainant and the seriousness of her consequential physical and psychological injuries. Those were very relevant considerations for the sentencing judge, but the sentencing remarks do not indicate that they were not taken into account. Presumably they formed the main bases for the lengthy term of imprisonment imposed by the sentencing judge. In relation to the long-term effects of the complainant’s injuries, the appellant submitted that the punishment imposed upon an offender may depend in part upon the extent of the damage which the offender’s victim happens to sustain. That is so: see, for example, R v Amituanai (1995) 78 A Crim R 588 at 589. However the sentencing remarks do not indicate that the primary judge failed to apply that principle.
- The appellant argued that the sentencing judge erred in taking personal matters into account in allowing for an early parole eligibility date when those matters were already taken into account in declining to make the serious violent offence declaration which was otherwise justifiable by the serious nature and consequences of the offence. Since the substantive effect of a serious violent offence declaration is to defer parole eligibility it is unsurprising that the respondent’s personal circumstances were taken into account both in refusing to make the declaration and in relation to the parole eligibility date fixed by the sentencing judge. This is not an impermissible form of “doubling up”. The appellant’s further argument that the sentencing judge’s decision not to make a serious violence offence declaration was informed only by matters personal to the respondent should not be accepted. Reliance was placed upon the sentencing judge’s remark that she had “determined that this particular case, because of your youth and lack of prior history and other personal matters, is not one where a declaration should be made”. In the context of the sentencing judge’s earlier discussion of the applicable sentencing principles and the circumstances of the offence, the reference to the “particular case” makes it clear that the sentencing judge did not exclude those circumstances from consideration. It should be accepted, however, that the sentencing remarks reveal that the respondent’s personal circumstances formed the decisive consideration in the sentencing judge’s decision not to make the declaration and instead to fix an early parole eligibility date. That is relevant in assessing the adequacy of the sentence.
- It was submitted that the sentencing judge’s finding that the offending was “out of character”, if it was open, was of little weight in light of other matters: the respondent’s criminal history, his prior conduct towards the complainant, and Mr Hatzipetrou’s opinion that the risk of future violence to others was moderate and it was moderate to high in relation to the complainant if they should reconcile. I would accept that the significance of that finding in fixing upon the sentence was inevitably diminished by those matters, even though that psychologist’s opinion was predicated upon the absence of treatment for the respondent and even though the respondent’s criminal history included no prior offences of violence. This does not of itself establish any error by the sentencing judge, who appropriately qualified her conclusion that the offence was out of character by reference to the conflict which the respondent had initiated in his relationship with the complainant, but it is another feature which bears upon the adequacy of the sentence.
- The appellant also submitted that the sentencing judge did not place sufficient weight upon the “serious and extraordinary nature of the offending” and placed too much weight on matters personal to the respondent. In the appellant’s submission, the circumstances of the offence were “primarily” relevant in the decision whether to make a serious violent offence declaration. If that was intended to convey that such an approach must be adopted in every case, it is inconsistent with s 9(4) of the Penalties and Sentences Act 1992. That section obliges sentencing judges to have regard “primarily” to many different matters. They include the circumstances of the offence (including any injury to any member of the public) and the nature and extent of any violence used in the commission of the offence, but they also include matters which comprehend the absence of any prior offence of violence in the respondent’s criminal history, his attempted rehabilitation, his youthful age, evidence of his otherwise good character in the references, his remorse, and the psychologists’ reports: see Penalties and Sentences Act 1992, s 9(4)(a), (d), (e), (g), (h), (i), and (j).
- That section applies in sentencing generally. It is necessary also to refer to decisions cited by the appellant which discuss the circumstances which favour the exercise of the discretion to make a serious violent offence declaration. The leading case is R v McDougall and Collas [2007] 2 Qd R 87, in which R v DeSalvo (2002) 127 A Crim R 229 and other cases were considered. R v McDougall and Collas relevantly decided that “the considerations which may be taken into account in the exercise of the discretion [to make a serious violent offence declaration] are the same as those which may be taken into account in relation to other aspects of sentencing”, the considerations relevant to bringing forward eligibility for parole “will usually be concerned with the offender’s personal circumstances which provide an encouraging view of the offender’s prospects of rehabilitation, as well as due recognition of the offender’s co-operation with the administration of justice”, and the considerations which “may” lead to postponement of eligibility for parole “will usually be concerned with circumstances which aggravate the offence in a way which suggests that the protection of the public or adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required by the Act having regard to the term of imprisonment imposed”, and that “the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside ‘the norm’ for that type of offence.”
- The respondent initiated a sustained, callous, and vicious attack using a bottle and a knife upon the vulnerable and unsuspecting complainant. It was an assault by a person who the complainant should have been able to trust and in their home where she should have felt safe. The respondent subjected the complainant to a terrifying ordeal, he ignored the neighbours’ attempts to intervene to come to the complainant’s assistance, he threatened her whilst she lay seriously injured on the floor, and the complainant’s lasting physical and psychological injuries are very severe. The respondent’s offence was so violent and serious as to take it outside the “norm” and to constitute a strong case for exercising the discretion to make a serious violent offence declaration.
- The appellant cited various judicial statements which suggest that in cases of this general character a declaration ordinarily should be made. In R v King & Morgan [2002] QCA 376 the Chief Justice, with whom Davies JA and Jones J agreed, said that the purpose of the serious violent offence regime of strengthening sentences “is subverted if in cases obviously calling for a declaration, it is not made”. In R v Daley [1999] QCA 332, in which the offender intentionally smashed the complainant’s face with a rock, damaging her muscles so that her face sagged and leading to her undergoing a personality change and becoming afraid of men and being on her own, McPherson JA said that circumstances of that case which were otherwise relevant to sentence paled into insignificance in the context of those serious injuries. Derrington J similarly considered it “almost impossible” for the sentencing judge to have avoided making a declaration. The appellant relied also upon statements pointing in the same direction in R v Bryan; ex parte A-G (Qld) [2003] QCA 18 and R v Thomason; ex parte A-G (Qld) [2011] QCA 9 which are discussed below.
- It does not necessarily follow that a decision not to make a declaration in a case of this general character inevitably justifies this Court interfering in the sentence. This Court has jurisdiction to vary sentences on an Attorney-General’s appeal only in the case of error: Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573 at [62]. In deciding whether there is an error, the particular circumstances of each case and the terms of the sentence imposed at first instance must be taken into account. Error is not established merely because the sentence differs markedly from sentences imposed in other comparable cases: Wong v The Queen (2001) 207 CLR 584 at [58]. As the High Court recently pointed out, “the factors bearing on the determination of sentence will frequently pull in different directions” and sentencing judges must “balance often incommensurable factors and … arrive at a sentence that is just in all of the circumstances”: Elias v The Queen; Issa v The Queen [2013] HCA 31 at [27]. Sentencing judges “are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”: Markarian v The Queen (2005) 228 CLR 357 at 371. Not only does the statutory regime in the Penalties and Sentences Act 1992 not preclude reference to an offender’s personal circumstances, it requires reference to such of those circumstances as are specified in s 9(4) of the Penalties and Sentences Act 1992. The relative weight of each circumstance is a matter for assessment by the sentencing judge.
- In order to decide whether the sentence was nevertheless outside the sentencing discretion in the particular circumstances of this case it is relevant to consider the effect of the order for eligibility for parole made by the sentencing judge. That is not an order for release on parole. When or if the respondent will be released on parole is uncertain. Whether parole is granted and, if so, when it is granted after the parole eligibility date, depends upon a decision by a parole board. The appellant referred to cases in which it was held that an order recommending parole creates an expectation in the prisoner of obtaining parole: see R v Corrigan [1994] 2 Qd R 415, R v Maxfield [2002] 1 Qd R 417, R v Daly [2004] QCA 385. In Daly Jerrard JA expressed the following view of the effect of the decisions concerning recommendations for release on parole:
“In R v Maxfield [2002] 1 Qd R 417 the majority judgment of this court noted that the earlier decision in R v Corrigan had depended upon the view that a recommendation (for early release on parole) produced an ameliorating effect on the sentence, and thus could be regarded as a reduction of the sentence. The majority view in Maxfield held that if, viewed at the time of sentencing, there was a significant risk that effect would not be given to a recommendation then, where that risk existed for reasons beyond the prisoner’s control, the recommendation did not in reality qualify as a reduction of sentence, contrary to the assumption of the sentencing judge. It was unnecessary in Maxfield for the majority to consider what should happen if a recommendation was not followed, although the possibility of judicial review was adverted to. The judgment in Maxfield should be understood as expressing the view that a Community Corrections Board cannot lawfully refuse to grant parole on the basis of a consideration which was fully taken into account by the sentencing court at the time it made a recommendation for release on parole.”
- Recommendations for release on parole are no longer permitted: Penalties and Sentences Act 1992, s 160A(3). The effect of past recommendations and the effect of court orders fixing parole eligibility dates are now regulated by statute. In relation to parole eligibility, s 192 of the Corrective Services Act 2006 provides that “a parole board is not bound by…the parole eligibility date fixed by the court … if the board … receives information about the prisoner that was not before the court at the time of sentencing … and … after considering the information, considers that the prisoner is not suitable for parole at the time … fixed by the court.” That may be thought to reflect the approach to recommendations for parole described by Jerrard JA in R v Daly, but it is not necessary to embark upon a detailed examination of this question. It is apparent that the fixing of a parole eligibility date which is earlier than the mid-point of the imprisonment (when parole eligibility otherwise would accrue in a case of this kind: Corrective Services Act 2006, s 184(2)) and which is very much earlier than the point at which parole eligibility would accrue if a serious violent offence declaration were made, will usually ameliorate the sentence by creating at least a prospect, and perhaps a qualified expectation, of release on parole earlier than otherwise would be the case. (It may not do so in exceptional cases, such as where, at the time of sentence, there is no real prospect that parole will be granted. It was not suggested that this case is exceptional.)
- It is necessary next to consider the comparable sentencing decisions cited by the parties. The most significant of those decisions is King & Morgan. Sentences of six years imprisonment for the offence of unlawfully doing grievous bodily harm and related offences were varied on appeal by the addition of declarations that each offender had been convicted of a serious violent offence. The Chief Justice observed that this sentence should be seen as moderate for offending of the gravity in that case, and, more relevantly here, that “but for the pleas of guilty, each respondent should have been imprisoned for at least eight years, after all mitigating features were taken into account, with a declaration that [they] had been convicted of a serious violent offence …” These offenders were 23 and 28 years old. Each had significant criminal histories and had previously been imprisoned. They forced the complainant into their car and engaged in a brutal and prolonged assault upon her whilst they kept her in captivity during some six hours in all. They made threats that the complainant would be killed. She was ultimately left unconscious and naked in the car by a public road, likely to die if she was not rescued. The offenders severely bashed her, and they beat her with weapons, including a small axe or hammer. Her ear was partially severed and she was left with cosmetic disfigurement and severe psychological damage. The Chief Justice’s conclusion that a sentencing court could not reasonably have avoided making a declaration that the offenders had been convicted of a serious violent offence was referable to the facts of that case; the Chief Justice referred to the “aggregation of circumstances” that the offence was undoubtedly serious and violent, it was brutal, it involved the use of weapons, it was committed whilst the complainant was restrained over a period of hours, it involved injuries which would, without more, have led to her death and had left her with a substantial residual disability, and (unlike in the present case) it was committed by two men in company, each of whom had a substantial prior criminal history and had previously been imprisoned (see p 11). The lasting effects of the complainant’s injuries seem worse than in King & Morgan, but overall that case was of similar seriousness having regard to the extraordinary length of time during which that offence was committed, the brutality of the assaults, and the fact that it was committed by two men in company. The respondent’s personal circumstances are somewhat more favourable, particularly because he was younger and each of those offenders had previously been imprisoned, although the weight to be attributed to the respondent’s plea was limited by the irresistible strength of the Crown case.
- In Bryan an appeal by the Attorney-General against a sentence of four years imprisonment suspended after 12 months for an operational period of five years for an offence of doing grievous bodily harm was allowed and the offender was re-sentenced to six years imprisonment. The appellant relied particularly upon the statement by Williams JA that the indications of rehabilitation whilst that offender had been in prison could not significantly alter the appropriate penalty and the statement by the Chief Justice that “[i]n cases like this one, deterrence, punishment and community denunciation…will ordinarily assume much greater significance than the personal circumstances of an offender. A declaration would have been warranted.” The offender was a 21 year old man who committed what Williams JA, with whose reasons Cullinane J agreed, described as a “vicious attack” with a knife upon a stranger in the centre of Brisbane: it was “one of the worst examples of the offence of doing grievous bodily harm that one could find” (at [29]). Williams JA referred to the Chief Justice’s statement in King & Morgan that, but for the pleas of guilty, those respondents should have been imprisoned for at least eight years with a declaration, and held that a sentence in the range of six to seven years was the minimum that could be considered as the head sentence. Williams JA added that the circumstances in that case “would often justify the making of a declaration that the offence was a serious violent one, but no such declaration was, or is now, asked for” (at [35]). The Chief Justice said:
“By part 9A introduced into the Penalties and Sentences Act in 1997, the legislature clearly signalled a hardened intolerance of serious violent offending which sentencing courts must be astute to acknowledge and respect. In cases like this one, deterrence, punishment and community denunciation (s 9(1)(a), (c) and (d) Penalties and Sentences Act) will ordinarily assume much greater significance than the personal circumstances of an offender. A declaration would have been warranted.”
- In Thomason, the court set aside a sentence of four and a half years imprisonment with parole eligibility after 14 and a half months and re-sentenced the offender to six years imprisonment for the offence of grievous bodily harm with a declaration that he was convicted of a serious violent offence. The 18 year old intoxicated offender accosted the 21 year old complainant, grabbed his shoulder and spun him round, and then stabbed him twice with a steak knife. The complainant had no pulse when he arrived at the hospital. He sustained an injury to his heart, requiring surgery, and a neck wound requiring suturing. In addition to substantial pain associated with the stabbing and the operation and an adverse itching reaction to morphine administered to him in hospital, the complainant was left with shock and anger about being attacked from behind for no reason, loss of confidence in public, the presence of four ugly scars on his chest (from the stab wounds and surgery), and the possibility of problems in the future due to scar tissue on the heart. The offender pleaded guilty a fortnight before the intended commencement date of the trial, after a full committal with cross-examination of witnesses. The Chief Justice, with whose reasons Chesterman and White JJA agreed, considered that the circumstances in Bryan were comparable and that the sentence imposed at first instance was particularly lenient in comparison with the six years imprisonment to which a declaration could have been added in Bryan (see [15]-[19], [21]). The Chief Justice also emphasised that there should be close adherence to what was said in Bryan.
- The notional, minimum sentence of eight years imprisonment with a declaration mentioned in King & Morgan was ultimately reflected in a sentence of six years imprisonment with a declaration, the reduction being accounted for by the plea of guilty and by the usual practice then prevailing in appeals by the Attorney-General of re-sentencing at a moderate level. The Court has since rejected the proposition that there is “an overarching rule which operates to require this Court to impose a sentence at the lower end of the available range”, although particular circumstances might lead to the imposition of such a sentence in some cases.[2] But for the moderation applied in King & Morgan, the sentence might perhaps have been of the order of seven years imprisonment with a declaration, after allowing for the plea of guilty. Consistently with that view, Bryan and Thomason also suggest that the proper sentence in this case was of the order of seven years imprisonment with a declaration, having regard to the greater seriousness of the circumstances of the respondent’s offence summarised in [16] of these reasons, particularly the extent of the complainant’s lasting injuries.
- In R v Lewis; ex parte A-G (Qld) [2003] QCA 133, the court set aside a sentence of three and a half years imprisonment, with a recommendation for post-prison community based release after 15 months and re-sentenced the offender to imprisonment for seven years with a declaration that he had been convicted of a serious violent offence. That offender’s age is not mentioned in the judgment, but he was described as “a young man” (at [31]). He had an extensive criminal history including a conviction for assault occasioning bodily harm, in which he had used a spiked ring to punch an older man in the face and body whilst on the ground. He was one of a group of six or seven men in a public park. He was behaving in a generally threatening way, including by swinging around a weapon resembling a Samurai sword, which was about a metre long. After a confrontation the offender struck the complainant with the sword at least four times, producing severe injuries including the severing of an artery, nerves and muscle tissue. The complainant was left with serious, adverse physical sequelae, including restricted movement in one hand, loss of feeling below the knee in one leg, a withered leg, and the possibility of requiring a leg amputation. The Chief Justice, with whose reasons Atkinson J agreed, regarded that as a more serious offence than in Bryan and held that the term of seven years imprisonment “appropriately reflects the plea of guilty, while allowing for the concurrent declaration” (at [21]). The circumstances of this offence are even more serious, but having regard to that offender’s prior criminal history Lewis is also consistent with the view that the appropriate sentence for the respondent was of the order of seven years imprisonment with a declaration. Lewis does not support an argument advanced by the appellant that the imprisonment of eight and a half years imposed upon the respondent should be regarded as allowing sufficient mitigation for his plea of guilty and other personal circumstances even if a declaration were added.
- In each of Daley and R v Murray [2010] QCA 266, the court declined to set aside a declaration that an offence of unlawfully doing grievous bodily harm with intent to do grievous bodily harm was a serious violent offence and held that a sentence of eight years imprisonment with the declaration was not outside the sentencing range. The appellant relied upon Daley because the circumstances of that offence were similar to the circumstances in this case, but in Daley there was the additional element of intent to do grievous bodily harm. The maximum penalty for that offence was life imprisonment whereas the maximum penalty for the respondent’s offence was 14 years imprisonment. Whilst some serious examples of the latter offence merit more severe sentences than some less serious examples of the former offence, Daley and Murray could not justify departure in this case from the range suggested by the more closely comparable sentencing decisions in King & Morgan, Bryan, Thomason and Lewis. In addition, in Murray the offender was not youthful (he was 36), his criminal history included offences of violence, and the sentence apparently took into account his criminality also in five other indictable offences, including aggravated stalking, assault occasioning bodily harm, and threatening to enter premises with intent to intimidate. The respondent contended that because the sentence in Daley was for an offence which carried a maximum penalty of life imprisonment, that case supported his argument that there was no error in his sentence. The better view is that the decision to refuse leave to appeal in Daley sheds no light one way or the other upon the question whether the respondent’s sentence for his different offence is manifestly inadequate or otherwise affected by error.
- In the successful appeals by the Attorney-General to which the Court was referred the sentences imposed at first instance were more lenient than here – six years imprisonment without a declaration in King & Morgan, four years imprisonment suspended after 12 months in Bryan, three and a half years imprisonment with a recommendation for release after 15 months in Lewis, and four and a half years imprisonment with parole eligibility after 14 and a half months in Thomason. The question whether there is an error justifying appellate interference in the present case is more difficult. It is arguable that the apparent inadequacy in the period before parole eligibility does not result in a manifestly inadequate sentence in the context of the lengthy term of imprisonment and the resulting prospect of a lengthy parole period, a sentence structure which was designed to promote rehabilitation.
- Ultimately, however, a number of considerations have persuaded me that the sentencing discretion must have miscarried. As I have mentioned, the respondent’s personal circumstances formed the decisive consideration in the sentencing judge’s decision not to make the declaration. Those circumstances notably included his young age, the plea of guilty, the absence of any previous conviction for an offence of violence, the evidence that the respondent was genuinely remorseful, his attempted rehabilitation, and his favourable references. But the weight capable of being afforded to the respondent’s personal circumstances was diminished by the significant and necessary qualification upon the sentencing judge’s finding that the respondent was otherwise of good character and by the limited extent of the respondent’s rehabilitation described in the psychologists’ reports. It is difficult to see a sufficient justification for treating the aggregation of those matters as the decisive consideration for not making a serious violent offence declaration when regard is had to the extreme violence and seriousness of the respondent’s offence and the severity of its consequences for the complainant. Even in the context of the lengthy term of imprisonment and the uncertainty about parole, the comparable sentencing decisions confirm the strong impression that the decision not to make the declaration coupled with the fixing of the early parole eligibility date must reflect an error in the exercise of the sentencing discretion. That error should be corrected in the interest of justice in this case and to ensure that this sentence is not relied upon as a comparable sentencing decision.
- The appellant contended only for the addition of a declaration to the eight and a half years imprisonment imposed by the sentencing judge, but sentencing, including the making or declining to make a serious violent offence declaration, is an integrated process: “if one of its elements is removed, the whole process or its outcome is or may be affected and need to be reconsidered”: R v DeSalvo (2002) 127 A Crim R 239. A reconsideration of the sentence as a whole is inevitable in a case of this kind; once the Court determines that there is an error in the sentence which should be corrected, s 669A of the Criminal Code requires the Court to “impose such sentence as to the Court seems proper.” In my opinion the proper sentence is seven years imprisonment with a declaration that the respondent has been convicted of a serious violent offence.
Proposed orders
- I consider that the following orders are appropriate:
- Allow the appeal.
- Vary the sentence and orders made in the District Court by substituting the following orders:
- The respondent is sentenced to seven years imprisonment.
- Declare that the respondent is convicted of a serious violent offence.
- Declare that 703 days of pre-sentence custody, from 13 November 2010 to 16 October 2012 be deemed time served under the sentence.
- DOUGLAS J: I agree.