R v Latemore[2016] QCA 110

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  I have read the reasons of Philip McMurdo JA and agree with those reasons and the orders his Honour proposes.
2. PHILIP McMURDO JA:  On 7 July 2015 the applicant was convicted, upon his plea of guilty, of an offence of unlawfully doing grievous bodily harm with intent to do so.  He was sentenced to nine years’ imprisonment and his parole eligibility date was set at 7 July 2020, five years into his term.  There was no presentence custody.
3. He applies for leave to appeal against the sentence upon effectively three arguments.  The first is that the parole eligibility date should not have been fixed at more than 50 per cent of the term without an indication by the sentencing judge that he was considering such an order and without having opportunity to address the judge on why it should not be made.  The second ground is that the parole eligibility date was fixed at more than 50 per cent of the term without the sentencing judge explaining in his reasons why that order was made.  The third ground is that the sentence was manifestly excessive.  The applicant’s argument is that a sentence of nine years’ imprisonment, with a parole eligibility date after three years, should be substituted.

The offence

4. On the evening of 30 March 2013, the applicant argued with the man who became the complainant at the Jandowae Hotel.  Both men had been drinking there but not together and until the argument, they had not met.  At this stage the argument involved no more than an exchange of insults and verbal abuse.  The applicant asked the complainant “who are you?” to which the complainant replied saying that he did not have to tell him.  Later in the evening the applicant approached one of the men who had been in the complainant’s party and asked him who the complainant was.  He was then given the complainant’s name.
5. The applicant left the hotel at about 10.30 pm.  The applicant went to a nearby address in search of the complainant.  However the complainant and some of his friends were still at the hotel.  The applicant made enquiries as to the complainant’s home address and when learning of it, drove away, apparently to go to that address.  Others informed the complainant and the complainant’s wife of the applicant’s movements.  The complainant and two of his friends left the hotel and drove to his house which was about 17 km away.
6. The car in which the complainant was travelling arrived at the complainant’s house at about the same time as that driven by the applicant.  Inside the boundaries of the property, the cars stopped a short distance from each other.  When the men were out of the cars, the complainant approached the defendant asking him “What are you doing here?”  The applicant’s response was to strike the complainant twice to the head with a two foot long round metal pole.  The complainant was rendered unconscious.  He was lying in a pool of blood and an ambulance was called which arrived a short time later.  The applicant had remained at the scene, standing alone near his car and still holding the metal pole.  He was disarmed by the complainant’s friends without, it seems, any struggle.  One of them asked the applicant “What did you come out here with a metal bar for…what set you off?”  The applicant replied that he had been arguing with another man at work on that day and then with the complainant at the hotel and he “took it out on [the complainant]”.
7. The applicant remained at the scene until police arrived.  He provided a sample of his breath which showed a blood alcohol content of 0.06 per cent.  It was estimated that his blood alcohol level at the time of the assault would have been 0.127 per cent.
8. The applicant then told police that he believed that he was going to be attacked by the complainant’s group and that, in effect, he had been defending himself.
9. At the same time the applicant complained of chest pains so he was taken to Dalby Hospital for treatment.  Later that morning police attended the hospital but the applicant declined to be interviewed.  He was then charged with the offence.
10. The complainant was very badly injured.  He suffered a comminuted compound fracture of the skull and a complex left orbital fracture.  The complainant underwent emergency neurosurgery.  The surgery was complex and extensive.  The complainant remained in a brain injury rehabilitation unit for nearly a month, during which time he was only able to communicate at a basic level and was required to wear a protective helmet to protect a part of his skull which was missing as a result of this assault.  His injuries were life threatening without medical treatment.  Even after treatment, the injuries resulted in a permanent effect upon his health, the complainant having ongoing cognitive changes including effects upon his language skills.  He has developed post-traumatic epilepsy and has recurrent seizures.  He suffers an impaired quality of life as a result of the seizures and the side effects of his medication.  He is at increased risk of premature death as a consequence of his permanent condition from this attack.  He experiences a seizure on average every fortnight.
11. In a statement tendered in the sentencing hearing, the complainant described the extreme pain of these seizures which are preceded by symptoms of nausea for some days prior to the seizure itself.  The medication which the complainant must take makes him feel drowsy and constantly unwell.  Often his speech is slurred and his right arm becomes weak.
12. Again according to that statement, the complainant is able to do only light house duties and maintenance work.  Before this assault the complainant operated two businesses: a haulage business and a farming operation.  He is unable to perform the duties associated with the haulage business.  The farming operation is less profitable because much of the work which he used to do is now done by employees.  His earning capacity and his earnings have been substantially reduced.  He is unable to drive.  His social and family life has been much affected.
13. The sentencing judge also had a statement from the complainant’s wife which again demonstrated the severity of the personal and financial consequences of this offence.

The applicant’s criminal history and antecedents

14. The applicant was aged 51 at the time of the offence and 53 at the time of his sentence.  He had some criminal history, relevantly a conviction of an assault occasioning bodily harm for which he was sentenced in a magistrates court in July 2010 to a fine.  He had pushed another man from behind down some stairs outside a hotel which had resulted in facial injuries, a dislocated finger and other cuts and grazes.

The sentencing hearing

15. An indictment was presented in the District Court on 14 October 2013, so that nearly 21 months passed before the sentencing hearing.  The matter was mentioned many times before being listed for a trial to take place in October 2014.  The trial was adjourned in that month because the applicant was ill and a further date for trial was fixed for March 2015.  On 1 April 2015 the matter was further adjourned to the July sittings of the District Court at Dalby when there was an indication of a likely plea of guilty.  As the prosecutor submitted, this was not an early plea of guilty.
16. The prosecutor emphasised to the sentencing judge the gravity of the injuries and submitted that it was open to him to declare this to be a serious violent offence.  There was a discussion between the prosecutor and the judge as to the impact of a declaration on the appropriate length of the term to be imposed.  There was also some discussion about the discretion to be exercised by the judge as to a parole eligibility date, if a declaration of a serious violent offence was not to be made.
17. The applicant’s counsel submitted that the appropriate sentence was one of nine years’ imprisonment with an eligibility for parole after four years.  It seems that his counsel’s original submission was for a nine year term with a parole eligibility date after three years but that this was revised after his Honour indicated that he considered that that would be too short a period of incarceration.
18. A number of character references were tendered in favour of the applicant.  They showed that he had been performing voluntary work, was well regarded as a worker, had assisted an elderly friend in need and that the offence was out of character for him.
19. A medical report was also tendered, to the effect that the applicant suffered from sleep apnoea (which would make jail more onerous for him), obesity, diabetes and hypertension.
20. Each counsel cited cases which were said to be comparable, some of which were cited in this court.

The sentencing reasons

21. The sentencing judge accepted that the applicant was genuinely remorseful for which he should be given credit.  He said that the applicant’s plea of guilty was significant and although it could not be described as an early plea, it had avoided the need for a trial.  He referred to the applicant’s health, good character references and “very good work history”.  He referred to his voluntary work and remarked that the applicant’s rehabilitation “looks good”.
22. The sentencing judge also referred to the consequences of the offence upon the applicant and his family and the fact that the offence involved some premeditation and planning.
23. As to whether there was to be a declaration of a serious violent offence, the sentencing judge said:

“I have been interested in the idea of making a declaration.  I’ve discussed it in some detail with the prosecutor and defence counsel.  There are various ways of going about all this and the comments I made in the course of the submissions made by the prosecutor and defence counsel will have been noted.  One approach might be to, at the top of the sentence, go somewhat lower and make the declaration.  It’s a balancing exercise…[t]he other approach might be to make the head sentence relatively high, which I’m in favour of, as a matter of fact, because it brings home to others the seriousness of the matter, but then one could also do something about the bottom of the sentence in requiring you to serve more than the usual one-third that’s often granted where there is a plea of guilty when a sentencing matter arises and I propose to do something along those lines in your case.”

24. After referring to some relevant considerations, such as some of the mitigating factors to which I have referred, his Honour concluded as follows:

“Mr Latemore, the head sentence should be high.  I will pass the sentence in a moment, but for the reasons that I have given, that should be a sentence of nine years imprisonment and the parole eligibility date should be fixed at after five years imprisonment.”

25. During the course of the submissions, the sentencing judge had discussed with each counsel many alternative outcomes.  The judge would describe a view although that view would then change.  But at no stage did the sentencing judge indicate a possible outcome by which, if there was to be no declaration of a serious violent offence, the parole eligibility date would be fixed at beyond the half way mark of the term of imprisonment.  For that reason no doubt, neither counsel made any submission about such an outcome.  As was held by this court in R v Kitson,^[1] the sentencing judge should not have fixed the parole eligibility date at beyond the half way mark without adverting to that possibility and providing the parties with an opportunity to make submissions about it.^[2]
26. A further and related error was that the sentencing judge did not appear to consider whether he should fix the date beyond the half way mark when, absent any order by him fixing a parole eligibility date, the applicant would be eligible for parole after serving half of the term.^[3]  A number of decisions of this court have established that the parole eligibility date can be fixed at beyond the half way mark of a period of imprisonment where there is “good reason” to do so: see eg R v McDougall and Collas;^[4] R v Assurson.^[5]  But here no reason was given by the sentencing judge and it appears that his Honour did not consider the question.
27. In my view the sentencing judge thereby erred in the exercise of his discretion and it is necessary for this court to resentence the applicant.

Resentence

28. For the applicant, it was submitted that the sentence of nine years was at the upper limit of the range for this offence and that this was demonstrated by a consideration of this court’s judgment in R v Perussich.^[6]  In that case, after a trial, the appellant was convicted of intentionally doing grievous bodily harm and was sentenced to nine years’ imprisonment with a declaration that it was a serious violent offence.  He unsuccessfully appealed against conviction.  He successfully appealed against his sentence, by the removal of the declaration.  The complainant and appellant in that case had been drinking for some hours at a hotel and then at the complainant’s house where the offence occurred when the appellant suddenly struck him about the head with a gun.  He was struck in this way three or four times after which the appellant shot the complainant in the leg.  The appellant had prior convictions for violence, the most serious of which had resulted in a period of two months’ imprisonment.  The complainant had what was described as “a serious disabling injury to which has been added a depressive illness”,^[7] requiring ongoing treatment and resulting in a permanent loss of the capacity to work in his previous occupation.  He faced what was described as a greatly altered lifestyle.  The complainant was then 43 years of age.  In this court, Jones J said that there was some premeditation in that the appellant had left the complainant’s house to go to his car where he collected the gun.
29. It is difficult to make a closer comparison of the consequences of that offence and the present one beyond saying that in each case, the consequences were permanent and very serious for the complainant’s work and personal life.  Like the present case, Perussich was one of an unprovoked and life threatening attack upon a man at his own home.  Importantly, in that case there was no plea of guilty and no remorse by the offender.
30. Counsel for the respondent referred to R v Mitchell;^[8] R v Mikaele;^[9] R v Honeysett; Ex parte Attorney-General (Qld)^[10] and R v Amery.^[11]  In Mitchell the applicant was refused leave to appeal against a sentence of seven years with a serious violent offence declaration, having pleaded guilty to intentionally doing grievous bodily harm.  Although the applicant had pleaded guilty, he had contested the complainant’s version of the events which the sentencing judge accepted.  That complainant suffered a fractured elbow, lacerations to her elbow and scalp, as well as a dislocated toe, which had left her with some lack of balance.  She also suffered from continuing psychological effects of the attack.  That offender had what was described as a relevant and lengthy criminal history, comprising many offences of violence including a conviction after a trial for manslaughter for which he had been sentenced to eight years’ imprisonment.  Like the present applicant, that offender had assaulted the complainant with an iron bar.  It was held that the serious nature of the assault and the applicant’s “very extensive and relevant criminal history” called for a “significant penalty” so that the sentence, although a heavy one, was not outside the sentencing discretion.^[12]
31. In Mikaele the applicant pleaded guilty to intentionally doing grievous bodily harm and was sentenced to nine years’ imprisonment with a serious violent offence declaration.  He was 17 years old at the time of the offence which involved an unprovoked attack by a group of five youths upon a member of the public at a railway station.  At the same time he was sentenced for several other offences, upon six indictments in all, including two counts of armed robbery and another of robbery in company with personal violence.  The complainant was very seriously injured.  He suffered a closed brain injury.  There were nine or 10 identifiable facial fractures.  He developed a blood clot in his lung and a collapsed lung and was placed in an induced coma and ventilated for a week.  He suffered memory and concentration deficits and headaches.  The assault had caused what was described as a major ongoing disruption to his family routine and lifestyle and he and his wife had suffered financially as a result of his inability to work for a period and because of lost job opportunities.  In that case, the complainant’s disadvantage from being highly intoxicated when assaulted was said to be relevant.  The attack upon the complainant was more sustained than in the present case.  His application for leave to appeal was refused.
32. In Honeysett the Attorney‑General appealed against a sentence of eight years for intentionally doing grievous bodily harm.  The sentencing judge had recommended parole after two and a half years.  The appeal was allowed but only to substitute a parole eligibility date at the same point, the term of eight years not being disturbed.  The prisoner had also sought to appeal his sentence, (unsuccessfully) arguing that it was manifestly excessive.  He was aged 19 when committing this and a number of other offences for which he received lesser terms including one of robbery while in company and armed with an offensive weapon.  About 12 months before these offences, he had been placed on probation for eight months for an offence of assault occasioning bodily harm.  In the offence the subject of the appeal, the prisoner assaulted the same complainant on successive days.  On the first occasion, he punched him in the face, rendering him unconscious as he fell onto a road.  On the following day, when the complainant was convalescing at home, he (again) attacked him in what was described as a protracted and brutal assault upon a defenceless complainant.  He later said that he meant to inflict serious injury.  He repeatedly punched and kicked the complainant, choking him and gouging at his eyes and desisted only when his older brother physically restrained him.  The complainant suffered very serious head injuries and was left with pain, impaired eye movement, facial scarring and altered cognitive functioning.  That attack was yet more serious than the present one.
33. In Amery this court reduced a sentence of eight years’ imprisonment to one of seven years and seven months for an offence of performing a malicious act with intent.  The complainant was the applicant’s de facto partner.  He had an extensive criminal history, including an offence of an armed robbery of a bank with the use of a sawn off shotgun for which he had received a seven year sentence.  That applicant attacked his partner with a 10 pound sledgehammer, hitting her in the head twice while she was lying in bed.  She had a fractured skull and damaged teeth.  Fortunately she made a full recovery from her injuries.  This court held that the sentence was not manifestly excessive but reduced the sentence to allow for a period of incarceration which could not be declared as presentence custody.
34. To return to the present case, the impact of this offence has been very serious indeed for the complainant and his family.  This makes it necessary to impose a sentence which sufficiently denounces the applicant’s conduct, which was unprovoked and could not be explained.  It is necessary also to have regard to the mitigating factors, each of which has been mentioned.  Importantly they include the applicant’s plea of guilty and what the sentencing judge found to be his genuine remorse.  He had no significant criminal history prior to this very serious offence.  In my conclusion the term of imprisonment should remain at nine years but his parole eligibility date should be fixed after four years to reflect the mitigating circumstances.

Orders

35. I would order as follows:

(1)Grant leave to appeal

(2)Allow the appeal.

(3)Vary the sentence by ordering that the applicant be eligible for parole on 7 July 2019.

36. BODDICE J:  I have read the reasons for judgment of Philip McMurdo JA.  I agree with those reasons and with the proposed orders.