R v Samson[2014] QCA 166

SUPREME COURT OF QUEENSLAND

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

[2] GOTTERSON JA:  On 26 March 2014 at the District Court at Cairns, the applicant, Ronald James Samson, pleaded guilty to an alternative count of having offended against s 320 of the Criminal Code (Qld) by doing grievous bodily harm to the complainant, Elizabeth Jeh-Anne Saveka, at Machans Beach on or about 22 May 2013.  He had also been charged with having done grievous bodily harm to the complainant with intent to do so.  The Crown accepted the plea on the lesser count in full discharge of the indictment.

[3] The applicant was that day sentenced to six years’ imprisonment.  The learned sentencing judge decided against making a serious violent offence declaration.  No recommendation with respect to eligibility for parole was made.

[4] On 15 April 2014, the applicant filed an application for leave to appeal against sentence.

Circumstances of the offending

[5] At the time of the offending, the applicant and the complainant were in a de facto relationship.  The complainant resided at Machans Beach near Cairns.  At about 2 pm on 21 May 2013, the applicant and the complainant began drinking rum and coke at her residence.  By 7 pm, the bottle of rum had been finished.  Others who had been at the residence left it at about 8 pm.

[6] The applicant and the complainant then became involved in a verbal altercation outside the residence.  He became angry and broke a glass-topped coffee table with a drinking glass which he was holding.  The complainant understood him to indicate that he might self-harm.  She went indoors in an attempt to calm the situation.  He followed her.

[7] Inside the residence, the applicant was very angry.  The complainant went into her daughter’s bedroom and closed the door.  Her son was sleeping in the room.  She lay down on a mattress between the children’s beds.  The applicant began banging on the door.  He broke it, entered the bedroom and advanced toward the complainant.  One of the children jumped on top of the complainant and told the applicant not to hurt the complainant.

[8] The applicant backed away towards the door and then broke a mirror located outside the bedroom door.  He taunted the complainant then moved towards her and began stabbing her with a piece of broken glass.  The child was still on top of the complainant’s body while the stabbing took place.  The applicant left the room and then returned with a knife which he had located.  He continued to stab the complainant, this time using the knife.  She fled to her mother’s house nearby.  The applicant followed but he was told by the mother to leave.

[9] In all, the applicant inflicted some 21 stab wounds on the complainant.  She underwent surgery on 23 May 2013 to repair nerve damage and muscle damage to her left hand.

The applicant’s personal circumstances and history of offending

[10] At the time of the offending, the applicant was 35 years old.  He was educated to Year 8.  He and the complainant had been in a relationship for a number of months prior to the offending.  He, too, was admitted to the Cairns Base Hospital early on the morning of 22 May.  He was initially unconscious and had a high blood alcohol concentration.  He had a wound to the forehead to the palm of his right hand, both possibly caused by falling on to the broken top of the coffee table.

[11] As to the applicant’s history of offending, specific reference need be made to two matters.  On 14 October 2005 in the Cairns Magistrates Court, he pleaded guilty to an offence of assault occasioning bodily harm committed on or about 21 February 2004 (“the 2004 offending”).  He was fined $1,500 with no conviction recorded.  On 17 March 2014 he was convicted in the Cairns Magistrates Court of an offence of contravention of a domestic violence order involving the complainant, committed on 11 February 2014, for which he was sentenced to 90 days imprisonment suspended for 12 months after serving 30 days.  This offending occurred while he was on bail for the offence subject to this appeal.

The grounds of appeal

[12] The applicant challenges the sentence imposed on him on two grounds, namely:

(i) that the learned sentencing judge erred with respect to two matters of fact with the consequence that the sentencing process miscarried; and

(ii) that the sentence is manifestly excessive.

It is convenient to consider Ground (i) first.

Ground (i): Factual errors

[13] There are two factual errors to which the applicant refers in support of this ground.  The first concerns the 2004 offending.  At the sentence hearing on 26 March 2014, the prosecutor tendered a Queensland Police Service document headed “Queensland Court Outcomes” dated 25 March 2014.[1]  This document wrongly recorded that the offence for which the applicant was charged for the 2004 offending as a “grievous bodily harm” offence.[2]

[14] In sentencing submissions, the prosecutor referred to an entry on the tendered document as one “for grievous bodily harm”.[3]  He described the conduct constituting the 2004 offending in the following way:

“That offence involved the defendant entering into a consensual fight; he struck the complainant to the ground and then retrieved a piece of concrete and threw it down onto the complainant, in that matter.  That caused a broken ankle, a fractured jaw and bruises …”[4]

A little later, the prosecutor, when referring to the 2004 offending, described the applicant as having a conviction for grievous bodily harm for it.[5]

[15] In his sentencing remarks, his Honour referred to the applicant as having “a relevant criminal history”.[6]  Although the prosecutor’s description of the 2004 offending conduct was accurate, what he told the learned sentencing judge about the criminal process which ensued was inaccurate in two respects:  the offence for which the applicant was charged was one of occasioning bodily harm (and not the more serious offence of doing grievous bodily harm); and no conviction was recorded.  The first of these inaccuracies was not detectable from the tendered document whereas the second of them was.

[16] The second factual error concerned the impact of the stabbing injuries on the complainant.  In the course of sentencing, his Honour said:

“… there is, I am told, some permanent injury to her hand resulting from the severance of a relevant nerve”.[7]

There was no medical evidence of permanent injury to the complainant’s hand.  In her Victim Impact Statement she said that she had “healed back to 100%”.[8]  Both his Honour and the applicant’s counsel at sentence appear to have been under a misapprehension that there was evidence of some permanent nerve injury.[9]

[17] The applicant has established that the learned sentencing judge acted upon these two factual errors.  In view of his Honour’s express reference to both the applicant’s criminal history and to a permanent injury on the part of the complainant in his brief sentencing remarks, it is an inescapable conclusion that the errors together materially affected the sentencing process.  It follows that the sentence imposed must be set aside.  In my view, it falls to this Court to re-sentence.

Ground (ii): Sentence manifestly excessive

[18] The success of Ground (i) and what follows from it have the consequence that it is unnecessary to consider this ground of appeal.  I would, however, note two aspects of it.  First, for the applicant, it was submitted that the sentence that should have been imposed was five years’ imprisonment with a recommendation for release on parole after two years.  Secondly, the two authorities on which reliance was placed for this submission, R v Dancey[10] and R v Johnson[11] were each an instance of grievous bodily harm inflicted by a single stab wound only.

Re-sentence

[19] The applicant’s offending occurred within the context of a domestic relationship.  It was very serious.  The stabbing was protracted.  It involved the use of two sharp objects, broken glass and then a knife.  That the applicant left the bedroom to retrieve a knife in order to continue the stabbing reveals a degree of deliberation in his actions.  The seriousness of his conduct was compounded by the fact that he carried it out in the presence of a child.

[20] In R v Oakes,[12] the offender was convicted after a four day trial of unlawfully causing grievous bodily harm.  He and his partner were in a deteriorating domestic relationship.  He was significantly affected by alcohol at the time.  The offender attacked his partner at home at night armed with two steak knives.  She was in bed.  He struck her a number of times causing cuts to her body.  She was left with some residual loss of sensation in two fingers and a weakened left-hand grip.  The offending stopped when their 10 year old son intervened.  The offender was sentenced to seven years’ imprisonment.  A serious violent offence declaration was made.  The offender’s application to this Court for leave to appeal on the ground that the sentence was manifestly excessive was refused.

[21] In R v Presgrave,[13] the offender pleaded guilty to an offence of unlawfully causing grievous bodily harm and to a separate offence of assault occasioning bodily harm.  In the first incident, the victim was the offender’s brother whom he injured with a single stab wound inflicted with a knife.  In the second incident, which occurred when he was on bail for the first, the offender struck a young man who was a bystander to a street incident in which the offender was involved.  The striking was on the shoulder and to the arm and was carried out with advertising signs and then a plank of timber with nails protruding from it.  The offender was sentenced to cumulative periods of four years and 18 months’ imprisonment, in all five and a half years’ imprisonment, for these respective offences.  A parole eligibility date at one-third of the sentence was set.

[22] The applicant’s offending here was comparable with that in Oakes but it was not exacerbated by permanent injury for the complainant.  Arguably, his offending was somewhat more serious than that in Presgrave in that there, neither incident had quite the intensity of offending as the applicant’s had here.  Due allowance needs to be made for the applicant’s plea of guilty.  In all the circumstances, I consider a sentence of six years’ imprisonment as appropriate for the appellant’s offending. This sentence should be cumulative upon the period of thirty days he was required to serve in prison under the sentence imposed on 17 March 2014. I would decline to make a serious violent offence declaration.  The applicant should be eligible for parole after service of one-third of the sentence.

Orders

[23] I would propose the following orders:

1. Grant application for leave to appeal against sentence.

2. Allow the appeal.

3. Set aside the sentence imposed on 26 March 2014.

4. Order that in lieu, the applicant be sentenced to six years’ imprisonment cumulative on the period of 30 days’ imprisonment he was serving when sentenced on 26 March 2014.

5. Fix a parole eligibility date at 16 April 2016.

[24] PHILIP McMURDO J:  I agree with Gotterson JA.