R v Davies[2013] QCA 73

SUPREME COURT OF QUEENSLAND 

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

[2] FRASER JA: After a trial occupying two days in the District Court the applicant was convicted on 10 October 2012 of unlawfully doing grievous bodily harm.  On the same day he was sentenced to imprisonment for two years and three months, with an order that he be released on parole on 30 November 2013 (approximately at the midpoint of the term of imprisonment).  The applicant has applied for leave to appeal against sentence on the ground that it was manifestly excessive.

[3] When the applicant committed the offence he was 24 years old.  Early in the morning of 22 September 2011, he had finished work as a chef at a hotel in Pittsworth and was drinking at the hotel bar.  A man was misbehaving and annoying customers.  The applicant felled that man with a single punch.  (The applicant was not charged with any offence arising out of that punch.)  The applicant’s father walked a short distance and looked at the man then lying on the floor.  The complainant approached the applicant’s father and pushed him away for a short distance, holding him by his arms, whereupon the applicant punched the complainant heavily in the side of his head.  The complainant could not have known he was about to be punched.  He walked away holding his face.

[4] The sentencing judge accepted that when the applicant assaulted the complainant the applicant believed that his father was about to be assaulted by the complainant.  The sentencing judge found that the applicant “used excessive force and violently punched the complainant to the head”.  The sentencing judge said that “[r]ather than pushing [the complainant] away, you decided to react in the violent way that you did” and that “[i]t may well be that you felt that you were acting in good faith at the time that you assaulted the complainant, but on looking at the CCTV footage, which I did on a number of occasions during the trial, as did the jury, I have no doubt that your actions in punching [the complainant] in the way that you did, and with the force that you did, was grossly excessive and irresponsible.”  The sentencing judge’s conclusions are consistent with the jury’s verdict.  The applicant’s counsel expressly disclaimed any challenge to them. 

[5] The complainant was admitted to hospital.  He sustained a fractured left zygoma, deformation and reduced sensation in the left cheek region, and reduced mouth opening.  The cheekbone fracture was repaired by the fixing of titanium screws and plates, which were left in situ.  The complainant was left with ongoing pain and recovering sensation in his left cheek which should slowly improve over time.  He experienced scarring from the surgical access sites and suffered from a post-traumatic stress disorder with a high level of anxiety, exhaustion and fatigue.  He relied upon medication.  The titanium plates holding his left eye socket together and the permanent facial nerve damage and ongoing dental issues from which he suffered constantly reminded the complainant of the trauma inflicted on him.  He had received intensive counselling sessions and it was necessary for him to take time off work and to rely heavily on the support of his family and close friends.  The sentencing judge also accepted that the incident had a financial impact upon the complainant.  As a result of issues with concentration he worked at a reduced capacity.  A clinical psychologist opined that the complainant experienced disturbed sleep, sweating, restlessness, exhaustion, and feeling overwhelmed; he experienced anxiety, thought of the assault every day, and was distracted by it.  The complainant experienced what the psychologist described as “intrusive recollections, cognitive avoidance and very high levels of physical arousal”.  The sentencing judge concluded that the applicant’s assault upon the complainant had a “very significant negative impact upon him and may well do so for many years to come”. 

[6] The sentencing judge found that the applicant had not shown any remorse for what he had done.  To the applicant’s credit, he paid child maintenance for his two daughters who did not live with him, he had obtained a responsible job since the offence and he had a very good employment history, indicating good prospects of rehabilitation, and he had the support of his parents and girlfriend.  The sentencing judge also noted, in the applicant’s favour, that at the trial the applicant did not, through his counsel, blame the complainant for the offence. 

[7] The applicant had a relevant criminal history.  In addition to drunk and disorderly and public nuisance offences, which are of no real significance here, the applicant had committed offences of violence on three prior occasions.  In 2004, when the applicant was 17 years old, he committed an offence of wounding for which he was convicted in May 2006.  The sentencing judge accepted in that matter that the applicant was goaded into a confrontation with the complainant.  After that complainant set upon and injured the applicant, the applicant produced a knife, which someone else had earlier given him, and stabbed that complainant a number of times.  The resulting injuries were not serious.  In sentencing the applicant to probation for one year and community service for 120 hours, that sentencing judge took into account that the applicant was then still very young, he had no convictions, and the complainant had attacked the applicant. 

[8] The applicant breached the terms of those orders a few months later.  On 10 December 2007 he was convicted of two counts of assault occasioning bodily harm whilst in company committed in August 2006, one count of assault occasioning bodily harm committed in or about February 2007, and two summary offences.  The applicant was sentenced to two years imprisonment for the August 2006 offences and to a concurrent term of imprisonment of 12 months for the subsequent offence.  The probation and community service orders were revoked and the applicant was re-sentenced for the 2006 offence to six months imprisonment, that sentence to be served cumulatively upon the two year term, with the parole date fixed at 10 December 2007 (the date of sentence).  In the August 2006 offence the applicant and three offenders harassed two young men who had arrived at a train station.  The four offenders followed them into a store.  After the applicant’s co-offenders had put one of the young men on the floor and punched and choked him, the applicant kicked him whilst he was still on the ground.  When the other young man and another person attempted to pull the applicant away, a co-offender assaulted that young man and the applicant joined in the assault.  That man fell to the ground and the applicant and a co-offender repeatedly stomped on his face, head and body whilst he was still on the ground.  The applicant and his co-offenders left the store, leaving one of the complainants unconscious and bleeding on the ground.  The assaults were unprovoked.  The sentencing judge in that matter described the assaults as “cowardly and despicable”.  In the 2007 offence, someone else punched a man in his face with a closed fist and, whilst that man was on the ground and attempting to get to his feet, the applicant used his right knee to strike the man’s head, causing bruising and swelling.

[9] The judge who sentenced the applicant for those offences accepted that the applicant may have been developing schizophrenia when he was first seen by a doctor in October 2006.  The judge accepted that this was a factor which should be taken into account in determining the appropriate sentence, but observed that it was not suggested that any mental illness had any relevance to the applicant’s culpability.  I note that there was no suggestion that the applicant was suffering from any mental illness when he committed the present offences or when he was sentenced for them.

Consideration

[10] The applicant argued that the sentence does not reflect the fact that the applicant fell to be sentenced only for the excessive component of the force which he used in the assault.  However the sentencing judge accepted that the applicant would not have committed any offence if he had merely pushed the complainant away (as the complainant had done to the applicant’s father).  The applicant did not argue that there was any error in the sentencing judge’s assessment of the degree of force lawfully open to the applicant in self defence of his father.  The court viewed the CCTV footage of these events.  The sentencing judge’s assessment was reasonable, as was his description of the applicant’s punching of the complainant as the use of force which was “grossly excessive and irresponsible”. 

[11] At the sentence hearing the prosecutor referred to R v Anderson,[1] in which an application for leave to appeal against a sentence of two years and six months imprisonment with parole release fixed after 15 months was refused.  That offender was a hotel security officer who followed his manager’s instructions to move a group of people off the footpath outside the hotel.  A woman gave the offender a minor push to his chest, which could not have concerned him.  The offender hit the woman with such force that she was lifted off her feet and deposited on the road, leaving her with a broken jaw.  Three metal plates were inserted in her jaw, but by the time of sentence she had recovered from her injuries.

[12] The applicant emphasised the aggravating feature that the offender was exercising his powers as a security guard.  That is significant; Holmes JA (Gotterson JA and McMeekin J agreeing) applied Keane JA’s observation in R v Taputoro[2] that, in the case of an assault by a security officer, general and personal deterrence are highly relevant in the sentencing discretion, bearing in mind “the opportunity which security staff have to use personal violence on their fellow citizens in and around nightclubs”.  In the applicant’s case, considerations of personal and general deterrence were significant for the different reasons that he had a criminal history of assaulting fellow citizens on three separate occasions and his various sentences for those offences had not deterred him from committing this offence.  The offender in R v Anderson had a history of summary offences as did the applicant, but that offender had no history of violent offending.

[13] It is relevant that, unlike the applicant, the offender in R v Anderson did not act to any extent in defence of another person (and he did not act in self-defence), but on the other hand it was taken into account in that offender’s favour that the confrontation arose out of his decision to follow his manager’s direction to move the group away from the hotel.  Notably, Holmes JA observed[3] that if that offender had “intentionally and of his own volition sought out the group for confrontation … a three year sentence might well have been appropriate”.  Furthermore, the consequences for the injured woman in that case seem to have been appreciably less serious than for the present complainant.  Significantly, the court quoted with approval the statement by the Court in R v Lambert; ex parte A-G[4] that:

“The cases which point towards a mean or common level of sentence in [grievous bodily harm] cases in the vicinity of two and a half years are nearly all single reprehensible incidents of violence, some with and some without provocation, and often reflect the product of a momentary loss of self-control.”

[14] A more lenient sentence may well have been within the sentencing discretion in this case, but R v Anderson and the analysis in it precludes acceptance of the applicant’s contention that his sentence was manifestly excessive. 

[15] The applicant referred also to R v Swayn; ex parte A-G (Qld).[5]  That offender was liable as a party for a grievous bodily harm offence in which a co-offender bashed a drug associate, fracturing two jaw bones and a cheek bone.  The court set aside a wholly suspended sentence of eight months imprisonment and re-sentenced the offender to 15 months imprisonment suspended after four months, with an operational period of two years.  Muir JA (myself and Mullins J agreeing) made it clear[6] that the sentence was influenced both by a relatively lenient sentence imposed upon a co-offender and by a convention[7] that, on a Crown appeal, a substituted sentence should be imposed towards the lower end of the range of available sentences.  For those reasons, and because of factual differences between that case and this, R v Swayn; ex parte A-G (Qld) does not support the applicant’s contention that his sentence is manifestly excessive.

[16] The respondent referred to R v Harvey,[8] in which the court varied a sentence of two years imprisonment for a grievous bodily harm offence by ordering that the sentence be suspended after the offender had served twelve months, with an operational period of three years.  The case was similar to the present, the offender being a barman who hit an unsuspecting, intoxicated patron with some force, felling the patron and inflicting upon him a broken jaw and some other, less serious injuries.  The injured man may have been left with some permanent consequences, including a mildly affected bite, altered sensation to part of the lower lip, and a fixation plate in the jaw.  At first glance, the applicant’s sentence seems high by comparison with that case, but the sentences are reconcilable on the basis that the offender in R v Harvey had no prior convictions.  I note also that R v Harvey was amongst the decisions analysed in R v Anderson, in which the court concluded that the sentence of two years and six months imprisonment with parole release fixed after 15 months imposed in that case was “unremarkable”.[9]

[17] The sentence was within the range of sentences open to the sentencing judge in the particular circumstances of this case.

Proposed order

[18] I would refuse the application.

[19] MARGARET WILSON J:  I agree with the order proposed by Fraser JA and with his Honour’s reasons for judgment.