R v Dell[2016] QCA 257

SUPREME COURT OF QUEENSLAND

1. HOLMES CJ:  The appellant went to trial on three counts of carrying dangerous goods in a vehicle and one count of grievous bodily harm.  (He had pleaded guilty to two further counts of carrying dangerous goods in a vehicle and one count of unlawful deposition of explosives.)  He was jointly charged with a man named Mark Tear in respect of the grievous bodily harm count.  The jury convicted him of one of the counts of carrying dangerous goods in a vehicle and of the count of grievous bodily harm; Tear was acquitted.  The appellant now appeals against the grievous bodily harm conviction on the ground that it is unreasonable and seeks leave to appeal against the sentence of four years imprisonment, with parole eligibility after two years, imposed on that count.
2. Essentially the case against the appellant was that he alone, or with his co-accused Tear, had inserted explosive powder into a golf ball and left it on an Ipswich Street, where it was found by two youths.  One of them later showed it to a friend, Michael Boggan, who lost most of his fingers and parts of his hands when it exploded while he was playing with it.  The appellant’s criminal responsibility was said to arise under s 289 of the Criminal Code, which imposes a duty on any person who has in his or her control a thing that, in the absence of care in its management, may endanger the life, safety or health of a person to use reasonable care and take reasonable precautions to avoid the danger.  The provision deems a person to have caused any consequences to the health of any person which result from an omission to perform that duty.

The finding and detonation of the explosive which injured Mr Boggan

3. Michael Boggan was 15 when he was injured by the exploding golf ball on 10 May 2013.  At the time, he was with other teenagers (to whom I will refer only by their first names), Aaron, Kierra-Lea, Jordan and Anthony, in the backyard of Kierra-Lea’s house at Dampier Street in Leichhardt.  Aaron, who was about 18 years old at the time, gave evidence that he found the golf ball wrapped in silver duct tape in a gutter on a street in Leichardt.  At the time he was with Jordan, aged 15.
4. Initially, Aaron said in evidence that he had found the ball in a gutter down from Aspinall Street; he did not know the name of the street in question.  On a map he identified Everdina Street.  He acknowledged in cross-examination that he had told the police that he found the object in Aspinall Street, but he maintained that he meant to indicate it was off Avon Street (which runs into Everdina Street, parallel to Aspinall Street); he had confused the street names.  He also conceded that he had discussed the location of the ball with Jordan outside the court room, immediately before the latter gave evidence.  Jordan said that Aaron found the ball in the gutter in Everdina Street and put it in his pocket.  When they spoke outside the Court, Aaron had thought that the ball was found in Avon Street, but Jordan had explained to him that it was Everdina Street.
5. Aaron described unwrapping the duct tape around the ball, revealing a hole burnt into it and burning around it.  He could see that it was hollowed out and contained powder, which he took to be drugs.  He re-wrapped it in the tape.  Two days later, he showed his friend Anthony the golf ball, asking him what he thought it was and expressing his own view that it was drugs.  Anthony said that the ball appeared to have its inner contents “shaved out”, with the halves melted back together.  There was a small hole through which white powder could be seen; it appeared as if there had been an attempt at sealing the hole by melting its edges back together.
6. They sought opinions about the object from various other acquaintances, one of whom said that Anthony had produced a white golf ball cut in half, then apparently heated back together with a lighter, so as to produce a black strip with “daggy bits hanging off it”.  There was some grey duct tape which Anthony removed to reveal a hole and, inside, a crystalline white substance.  Another individual who saw it at this point described it simply as what looked like a golf ball with a hole in it, containing powder.  Michael Boggan, also shown the ball at this stage, said that it had a hole, the dimensions of which were probably 2 mm x 2 mm.  According to him, Anthony and Jordan had tasted the contents and said that it had a horrible taste.
7. Aaron and his companions went to Kierra-Lea’s house where the group sat at a table in the backyard.  Aaron produced the golf ball.  Kierra-Lea described it as having a hole in it with grey sticky tape on it.  She removed the tape and emptied the ball’s contents on the table.  About a dozen ball bearings fell out, as well as powder.  She replaced the contents.  Aaron took some of the powder and sprinkled it on some cannabis in the cone of a bong before lighting it.  It flared up and burnt his facial hair.  Kierra-Lea’s brother examined the object.  He said that it had a hole in its side, as if it had been melted, with some tape over it.  He opened it to see that it contained what looked like washing powder with “little brown clumps and small ball bearings inside it”.
8. Aaron gave the golf ball to Boggan.  The latter was tossing it up and catching it when it exploded in his hands.  Aaron was also taken by ambulance to hospital.  A paramedic who accompanied him said that he asked him what had occurred; Aaron told him that a golf ball filled with ball bearings had exploded.  He thought the explosion was due to friction because it was filled with a combination of nail polish remover and hydrogen peroxide.  Aaron had not explained the basis of that opinion; however, he also said that he had thought when he found the object that it contained drugs.
9. An older friend of Aaron’s said that she had allowed him to use her laptop computer, and he had looked at a site which showed how to make “flash bombs”.  On an occasion at the end of 2012, she had found the appellant with her young son making them; they were constructed from matchsticks and ping pong balls.  (Another, younger friend of Aaron’s similarly said that he had put matches into ping pong balls.)  She recalled that not long before the golf ball explosion Aaron had said that he was going to kill Michael Boggan, because the latter had “ratted” on him.  In cross-examination, Aaron accepted that he had looked at the Internet to discover how to make “sparkler bombs” using bottle caps, and had made some devices of that type about three months before the explosion which injured Boggan.  He denied making anything involving ping pong balls, and also denied making the statement about nail polish remover and hydrogen peroxide which the paramedic attributed to him.  He was not asked about the alleged threat to kill Boggan.
10. A woman whose property backed onto the Dampier Street house said that in the four days before the explosion she had found golf balls with holes drilled in them in her yard and on her roof.  She had heard a similar sounding explosion on another occasion at around the same time, although she did not know where the noise was coming from.  There were “always explosions at night”, but they were off in the distance.
11. Police examined the area where the golf ball had exploded.  Remnants of the golf ball and a number of ball bearings were found.  On analysis, the ball fragments were found to have triacetate triperoxide (TATP) on them.  The evidence about that substance was that it was an unstable homemade explosive which could be manufactured from sulphuric or hydrochloric acid, hydrogen peroxide and acetone, the last commonly found in paint thinner and nail polish remover.

Subsequent explosions

12. A second, less serious explosion occurred in the West Ipswich area on 15 May 2013 when some workers at a Bunnings Hardware building site opened a gate, disturbing fishing line attached to a fence and triggering a small explosion.  The device involved was a party popper.  Crystalline remnants on it were tested, and proved to be TATP.  Four steel ball bearings were found on the ground nearby.  Mark Tear, the appellant’s co-accused, pleaded guilty at the commencement of the trial to the offence of leaving that explosive substance on the fence.
13. Suspicion of involvement with the explosive device which had caused Boggan’s injuries evidently fell on the appellant and Tear after another explosion, on 25 July 2013, at premises which Tear rented and both men occupied at West Ipswich.  In that explosion, Tear sustained severe injuries to his hands, groin and upper leg.  The appellant told police who went to the house that he had been leaving the kitchen when the explosion occurred in the living room, and that he had sustained a cut to his hand.  According to the appellant, Tear said that a gas bottle was the culprit.  Formally interviewed the following day, the appellant maintained that account.  He said that he had lived at the house for a few months, but denied knowing of any substances which Tear might have been making on the property and any familiarity with TATP.  He had not seen any acetone about the house, but believed there was a bottle of hydrogen peroxide, which Tear used in concreting, under the house.  He was aware of the explosion at Bunnings (which was close to Tear’s house) but had nothing to do with it.
14. Forensic examination of the property showed damage to a table in the lounge room which was consistent with its having been in an explosion.  Fragments of glass, metal nails and pieces of bitumen-type material and a jar label were lying about the room.  Powder under the table tested positive for the presence of TATP.  In the appellant’s bedroom, police found an esky and inside it a jar which was full of white crystalline material.  It was not possible to analyse it without removing it from the jar, and for safety reasons a controlled detonation was conducted using a small amount of explosives.  The result was a much larger explosion than would have been expected to result from those explosives alone, suggesting that the item detonated also contained explosive material.
15. In the study of the house, police found a pipe bomb, a party popper consistent in appearance with the one attached to the Bunnings fence, and a box containing documents related to acetone peroxide and incendiaries, on which Tear’s finger prints were located.  There were party poppers and a jar of peroxide in the pantry and a crystalline substance consistent in appearance with TATP was found down the sink.  The sink too was detonated, with the reaction consistent with the presence of TATP.  Three blocks of TATP and bottles of sulphuric acid, hydrochloric acid and acetone were found on a beam under the house.  A wheelie bin contained half a dozen used party poppers and a clip seal bag containing a substance which, on testing, returned a positive result for TATP.  There were four piles of a wet white substance on the grass in the yard, which also tested positive for the explosive.  Other items which were found in the yard and tested positive to TATP were a spatula, two glass jars, a baking tray, some pieces of gaffer tape and a bucket containing a crystalline substance below a layer of concrete.  All of the items which appeared to contain TATP were detonated.
16. A half golf ball was found in a vacant lot adjoining the property, on the fence line.  Two other apparently intact golf balls were found, one in the grass and the other under the house.  Another golf ball which had been half cut through and resealed, apparently by a glue or epoxy, was located in a wood pile behind the house.  Another item of interest was a sling shot found in the study of the house.  Its handle was clear and hollow, but police officers purchased a sling shot of the same make and model; they found that it contained ball bearings consistent in size and weight with the ball bearings involved in the golf ball explosion, and also with the four steel ball bearings found near the site of the Bunnings explosion.

Evidence of the appellant’s dealings with explosives

17. The appellant was interviewed again on 2 August 2013.  On this occasion he said that he had been living with Tear for a little over six months.  Tear was given to making explosive devices.  He had once seen him make up the white powder used in them; on that occasion he had produced perhaps four kilos of the substance.  He had shown the appellant how to put some of the powder into a bottle with some rocks, put a lid on and throw it so it would then go bang.  Tear had explained to him that by itself, the substance would not explode; it needed to be combined with other objects such as rocks or marbles in order to make it “go off”.
18. On the night of the explosion at their house, Tear had mixed the powder with rocks in a glass in the living room, with the expressed intention of throwing it out the window to make a bang.  When instead the explosion happened in the house, injuring Tear, the latter asked the appellant to get rid of the stuff in his room.  The appellant looked under Tear’s bed and found a tray of white material and six or seven bottles of similar material.  He took it to the backyard and tried to wash it away there.  He denied knowing of any white powder in his own room.  (The appellant’s plea of guilty to unlawful deposition of explosives related to his activities in leaving the material in the backyard.)
19. The appellant conceded that he had himself made a golf ball device, using a knife to drill a hole and placing some of Tear’s powder in it.  He replaced the divot he had cut from the ball, pushing it in “really tight”; he did not otherwise cover the hole.  Tear had thrown the object through his car window into the gutter as they were driving along a Leichhardt street on their return from Tear’s girlfriend house, but it did not explode.  (Tear’s girlfriend in the first half of 2013 said that she had been living at that time in a cul-de-sac in Leichhardt, close to Everdina Street.  Tear visited her there, quite frequently driven there by the appellant.)  According to the appellant, he and Tear had returned to retrieve the golf ball.  He had picked it up and taken it with him, as well as a plastic bag containing the powder, when he visited a couple with whom he was friendly.  They lived at Beerburrum and were celebrating the woman’s birthday on 24 April 2013.  At Beerburrum he had transferred the powder to a glass bottle and had thrown both the golf ball and the jar in the Beerburrum State Forest, near his friends’ house, setting off “bangs”.  He agreed with the proposition that he had also taken the powder to their house on a subsequent occasion.  (The appellant pleaded guilty to two offences of carrying dangerous goods on a train.)
20. The appellant confirmed that he had told his daughter’s former partner that Tear had been throwing pebble-sized explosives on the road to make them go bang.  That man gave evidence that in May 2013, the appellant had visited him and showed him what looked like a firecracker wrapped in duct tape.  The appellant asserted that it contained white powder which could make a bang and that he had made a batch.  He said that he had enough in his backpack to level a shopping centre.
21. The appellant’s friends at Beerburrum confirmed that he had brought explosive white powder with him when he visited them, which, according to them, occurred on a number of occasions.  The male of the couple remembered his bringing the substance in a large sandwich bag to his home about a month prior to his partner’s birthday.  (The jury found the appellant guilty of the further count of carrying dangerous goods on a train on the basis of that evidence.)  He recalled the appellant telling him that he had been using the powder to fill party poppers, as well as golf balls which he and Tear threw down the road.  In cross-examination, however, he agreed when it was put to him, that the appellant had simply said that he had been mucking around with the powder but had not specifically said “how that was”.  His partner recalled that on her birthday in April 2013, the appellant brought on his visit a golf ball and a glass jar with white powder.  She saw him throw the glass jar, but not the golf ball, although she heard a bang after he had warned her to stand some way back; he told her later he had made the noise with the golf ball.
22. One of Tear’s neighbours said that he had been hearing explosions going off at his house for about 18 months.  They appeared to occur when Tear was home; he assumed Tear’s presence on the premises from the fact that his car was there.  Another neighbour said that about two months before the explosion which injured Tear, the appellant had given him some white powder which he had thrown out into long grass.  A couple of weeks after the explosion which injured Tear, he advised the police that the substance was there, and they detonated it.
23. Tear had three sons.  The eldest was aged 14 at the relevant time, while his brothers were twins, two years younger.  All three said that they had seen white powder in various locations about their father’s house.  One of the twins recalled that his father had retrieved white power from the appellant’s room in order to put it in caps for his brother’s cap pistol.  The eldest said that Tear had TATP in his safe which he had put in party poppers, a jar and two bolted metal bars (possibly the pipe bomb which the police found).  Tear had used a sling shot to fire rocks taped together with powder at the shipping container in his backyard.  The tape was grey duct tape, which his father used in his work as a concreter.  His father and the appellant made up “all these powders” together.  The appellant had described to him how one could cut a golf ball in half, put explosives in it and close it again.  When the teenager asked the appellant if he knew anything about what was in the golf ball which had injured the boy at Leichhardt, he had replied that it was a golf ball cut in half with explosives in it.

The appellant’s arguments on the conviction appeal

24. Neither Tear nor the appellant gave evidence at trial.  Cross-examination for the appellant was largely directed to raising the possibilities that Aaron had come by the golf ball in some other way than he described, or that Tear, acting alone, was responsible for its manufacture and leaving it where it was found.  The defence was put to the jury on the basis that the Crown had not proved who made the device or left it in the street and that there existed reasonable hypotheses that either Tear, acting independently of the appellant, or Aaron did so.
25. The appellant was unrepresented here.  His argument, similar to that made at trial, was that there was not sufficient evidence for the jury, acting reasonably, to reach the conclusion that he was responsible for the golf ball device; that a reasonable possibility existed that Aaron could have made the device himself; and that there was an alternative reasonable possibility, that Tear had made it in his absence.  To support the hypothesis that Aaron was the culprit, the appellant relied on the latter’s statement to the paramedic as to what he thought the contents of the golf ball were, as indicating knowledge; on the apparent inconsistencies in Aaron’s evidence as to where he found the golf ball; and on the evidence of Aaron’s friend that he had used her computer to look up how to make flash bombs, had made small devices of that kind, and had threatened to kill Boggan.  Added to that was the evidence of the woman who had found golf balls around her premises and heard explosives.
26. Against Tear was the fact that he was given to making explosive devices and had the necessary knowledge to make the golf ball device.  The golf balls found were in his yard and explosive substances and devices as well as documents relating to incendiaries were found in his house.  Tear’s neighbour had described explosions over a period of 12 to 18 months which occurred only when Tear was home.  It was entirely possible that Tear had made the ball and left it in the Leichhardt Street at a time when the appellant was absent at Beerburrum or elsewhere.
27. In relation to the state of the evidence as to his own involvement, the appellant pointed out that there were no finger prints or any other forensic evidence to connect him to the exploding golf ball.  The golf ball device he had described to the police did not correspond with the one which harmed Boggan.  It had not involved ball bearings or tape, it was not cut in half, as some of the witnesses described the device which injured Boggan, nor was it hollowed out.  Nor was the golf ball found in the pile at Clay Street similar to the one which injured Boggan, because it had only been half cut through, and there was no evidence of any TAPT in it.

Conclusions on the conviction appeal

28. There were, in my view, a number of circumstances which in combination were sufficient to enable the jury to conclude that the appellant was the architect of, and had under his control, the golf ball device which injured Boggan.  The more general circumstances were his admitted experience with Tear’s white powder, which was TATP; the finding of TATP in his bedroom; his activities with Tear, according to Tear’s son, in making up powders, his claim to his daughter’s partner of having produced a batch of explosive white powder and his provision of white powder to a neighbour, all of which suggested that his dealings with the substance were far more extensive than he admitted to the police; and his production and use of explosive devices, including a golf ball, at Beerburrum.
29. More specific were his admission to the Beerburrum friend that he had put the powder in golf balls which he and Tear threw down the road (the jury being entitled to discount that witness’s apparent resiling in cross-examination); his telling Tear’s son of the technique of cutting a golf ball in half, putting explosive powder inside it and resealing it; his description of a similar object as having injured the boy at Leichardt; and his admission to Tear’s having thrown a golf ball device, which he had made, into the gutter as they drove home from Tear’s girlfriend’s house, from which an obvious route was along Everdina Street.  The jury were entitled to accept the appellant’s account to the police of the golf ball being thrown into the road, but to dismiss as self-serving and untrue his claim to have retrieved it.
30. The descriptions which the witnesses gave of the exploding golf ball varied, but the general thrust was that it had both been cut in half, presumably to remove its contents, and resealed, and had a small hole bored into it, consistently with the powder being introduced in that way.  The description of the hole aligned with the appellant’s description to police of a ball with a divot taken out and replaced.  The witnesses, though, described resealing of the hole by a melting process, whereas the appellant maintained that he simply replaced the piece taken out.  The jury might, however, have been dubious about the notion that the appellant carried about a ball containing an explosive substance which had no more effective sealing than the replacement of the piece drilled out.
31. The appellant relied on the fact that in his account to police he had not mentioned the features of duct tape, ball bearings or a ball cut in half.  However, his explanation (to Tear’s son) of how a golf ball could be cut in half and resealed suggests that he was familiar with the technique, and it is certainly logical to suppose that someone wanting to introduce a substance into a golf ball would hollow it out first.  Duct tape was available at Tear’s house, and the object which the appellant had produced to his daughter’s former partner, claiming it to have explosive properties, was wrapped in duct tape.  The suggestion that all he had done with the golf ball he had made was to insert the powder and then thrown the object was not consistent with his understanding, conveyed more than once in his last police interview, of what was required to make the substance “go off”.  He had been made aware by Tear that the powder on its own had no explosive tendency; it required some other object with it to make it detonate.  There was evidence that Tear had used ball bearings to achieve the necessary effect in the Bunnings explosion.  The jury could reasonably infer that the appellant both had access to ball bearings and a knowledge of how they could be used to make a device explode.
32. The jury could reasonably reject the hypothesis that Aaron had produced or obtained in some other way the golf ball which he gave evidence of finding.  While there was evidence suggesting that he had experimented with and been interested in minor forms of explosion, his behaviour in relation to the golf ball was consistent with his having no familiarity with its contents:  showing it to others and expressing a belief that it was drugs, permitting others to taste it, and trying to smoke it.  Aaron’s statement to the paramedic was, again, consistent with some knowledge of explosive devices in general, but not necessarily of this one; indeed he specified that he thought it contained drugs.  The difference in his statements about precisely where he found the golf ball was of no moment.  Jordan, who was not challenged on the point, supported his account of finding it in a gutter.  The jury may well have been doubtful about the alleged threat concerning Boggan, given that it was not put to Aaron for comment; or, if they considered that it had occurred, to give it little weight as teenage bombast.  The balls which the neighbour described finding at her premises near the Dampier Street property were not have said to have any explosive quality, and they were not shown to be connected with Aaron in any way; nor were the distant explosions she described hearing.
33. Tear was undoubtedly given to making explosive devices with TATP, but there was no evidence that he had any practice of making golf ball devices of the kind to which the appellant admitted.  The circumstances, in my view, were sufficient for the jury to conclude beyond reasonable doubt that the appellant was responsible, whether in conjunction with Tear or not, for the production of the golf ball device and its deposit on the street.  Having reached that conclusion, the inevitable result was a finding of criminal responsibility on the part of the appellant under s 289.  The verdict of guilt was not unreasonable.

The appellant’s arguments on the application for leave to appeal against sentence

34. The appellant contended that his sentence was manifestly excessive because the head sentence of four years imprisonment was too long and he was required to serve a minimum of half his sentence before eligibility for release on parole.  He relied on the fact that in the case of R v Wing^[1] the applicant, although sentenced to four and a half years imprisonment on a similar charge, was given a parole eligibility date after 18 months.  More generally, the appellant made submissions about his concern for the welfare of his partner and small daughter while he was in custody and the fact that he had been assaulted while in prison and feared for his safety.

The sentencing judge’s remarks

35. The sentencing judge accepted that the appellant did not intend to cause the injuries which Mr Boggan sustained.  Her Honour detailed those injuries:

“… left hand extensive skin and muscle loss, right hand extensive skin and muscle loss, traumatic amputation of right thumb, right index finger, right middle finger, right ring finger, traumatic amputation of left little finger, significant loss of and damage to tendons, nerves and bones within each hand, right medial thigh: three by three skin loss, one by two centimetre skin wound over right tibia, his shinbone, two-centimetre skin wound to his left medial knee, left medial ankle: skin wound, multiple burn wounds to both legs, and plastic foreign body in wound over sternum.”

Mr Boggan had been left with little function in his right hand and some capacity to grip with the left.  The harm done to him had, her Honour observed, caused considerable grief and stress to his family members, and he had himself expressed suicidal ideas.

36. As well as the count of grievous bodily harm, the appellant was to be sentenced for the count of unlawful deposition of explosives and the three counts of carrying dangerous goods in a vehicle.  In addition, he had pleaded guilty to a number of summary charges; two of possessing an unauthorised explosive, TAPT, one of manufacturing TAPT, one of possessing and one of producing cannabis and one of possessing a water pipe used for smoking a dangerous drug.  The sentencing judge described the three offences involving the carrying of explosives on the train to Beerburrum as extraordinarily dangerous and noted the additional count of depositing of explosives to which the appellant had pleaded guilty.  In relation to the grievous bodily harm offence, she observed that the innocent nature of the device, given its appearance as a golf ball, and the fact that it was left in a suburban street, designed to explode, meant that it involved an extreme and obvious danger, carrying a very high risk of injury to others.  The appellant’s breach of his duty to take care and precautions to avoid such harm was gross and had had horrific consequences.
37. The appellant had a criminal history as an adult, particularly the period between 1988 and 1999, involving a number of property offences such as wilful destruction, unlawful use of a motor vehicle, break, enter and steal, as well as numerous breaches of court orders, but it did not include any serious offences for violence.  The sentencing judge noted that the appellant had a good work history and that he was now in a relationship which had produced a small child; she accepted that he was concerned about his partner and child.  He had taken steps in his child’s interests to deal with substance abuse problems and to manage parenting difficulties.  Her Honour noted that the appellant had exhibited symptoms of post-traumatic stress disorder as a result of the explosion in the premises he shared with Tear and that he had been assaulted while in pre-sentence custody, so that his prison experience was a difficult one.
38. The cost to the community in rendering Tear’s property safe was significant.  It was extraordinary that the appellant had continued to experiment with TATP even after the explosion which injured Mr Boggan.  Personal and general deterrence were both relevant factors in sentencing.  Her Honour had regard to three Court of Appeal decisions, R v Clark^[2], R v Betts^[3] and R v Wing (relied on here by the appellant) in concluding that the appropriate head sentence was one of four years imprisonment, with eligibility for parole at the half-way point.  In relation to each of the remaining counts, she convicted the appellant and sentenced him to 12 months imprisonment, to be served concurrently.

Comparable sentencing decisions

39. Clark and Betts involved defendants whose culpability was considerably less than the appellant’s, although the injuries sustained as a result of their negligence were severe in each case.  In Clark, the appellant was convicted by a jury of causing grievous bodily harm through criminal negligence within the meaning of section 289 of the Criminal Code.  Responsible for a flying fox ride, he failed properly to secure the harness of a tourist, who fell 20 metres and suffered permanent and disabling injuries including brain damage and rib and pelvic fractures.  There was evidence that the appellant was “hung over” from the use of alcohol and marijuana the previous evening.  He had no criminal history and was 43 years old.  He was sentenced to two years and eight months imprisonment, with an order for his release on parole after half of that period.  This Court dismissed his application for leave to appeal against the sentence, noting that the gravity of the injury which the victim had suffered was a compelling consideration.
40. In R v Betts, the applicant pleaded guilty to one count of causing grievous bodily harm.  He became infuriated with his performance on a golf course and threw his golf club a distance of about six metres, hitting one of his fellow players in the head and causing a serious brain injury which left the young man permanently and severely disabled.  He joined in giving first aid to his victim, apologised to him soon after the incident, was remorseful and made admissions to police, as well as pleading guilty at an early stage.  That applicant was 26 years old and was the sole carer for two children.  He had a minor criminal history for drug and traffic matters and was on probation at the time of the offence.  He was sentenced to two years imprisonment, suspended after six months.  His application for leave to appeal was refused.
41. The case from which the appellant seeks to derive some support, R v Wing, involved conduct which was indubitably much more serious than that in Betts and Clark.  That applicant pleaded guilty not only to grievous bodily harm but also to dangerous operation of a motor vehicle, possession of a weapon and going armed in public so as to cause fear.  Heavily under the influence of alcohol, he performed a number of unsafe manoeuvres in his vehicle.  When someone threw a bottle at his car, he produced a shot gun intended for shooting wallabies.  A woman and two men approached his vehicle.  One of the men, seeing the barrel of the gun poking out the driver’s window, sought to knock it away.  The applicant had his finger on the trigger guard and the gun discharged, pellets striking the woman in her thighs.  She required surgery and was left with substantial scarring.
42. The sentencing judge in Wing rejected the applicant’s claim that he produced the weapon out of fear others might hurt him.  His Honour regarded as serious features the permanent gross disfigurement to the victim, the dangerousness inherent in the applicant’s pointing a loaded firearm in the direction of bystanders; his negligent and reckless behaviour in his management of the vehicle and gun, and his production of the gun in circumstances where he created a real risk of injury, even death, to others.  That applicant was 23 years old, with no prior criminal convictions.  He was sentenced to four and half years imprisonment on the grievous bodily harm charge with parole eligibility after 18 months, and lesser current sentences on the other charges.  This Court, noting the dangerous ingredients of the applicant’s conduct - the consumption of a great deal of alcohol, dangerous driving, his resort to a gun which he should have known was loaded, the proximity of a number of people and the result, serious harm to the victim - refused his application for leave to appeal against sentence.

Conclusions on the application for leave to appeal against sentence

43. The head sentence of four years imposed on the appellant was entirely in proportion with sentencing in the other cases which her Honour referred.  This case combined the more serious aspects of all of them: the severity of injury to the person harmed in Betts and Clark; and the antisocial quality of the behaviour exhibited in Wing, so as to make the offender’s culpability all the greater.  The features which her Honour identified - the seriousness of leaving an apparently innocent object, designed in fact to explode, in a public place with a grave level of risk of injury, combined with the appalling injuries in fact suffered by Mr Boggan - entirely warranted a sentence of four years imprisonment.  It is to be noted, too, that the sentence also reflected the appellant’s criminality in transporting an extremely dangerous substance by train and in distributing it about Tear’s yard in an attempt to remove evidence of what had occurred when Tear was injured.
44. The appellant was not entitled to the amelioration by way of earlier parole granted in Wing.  He did not co-operate as that applicant had done, or indeed show any remorse for the consequences of his actions; and of course, unlike that applicant, he was not a young man without criminal history.  Her Honour took into account everything advanced by way of mitigating factors, including the hardship the appellant had both suffered, and still feared, in the prison system and his concerns about his partner and child.  The sentence imposed was entirely appropriate.

Orders

45. I would make the following orders:
    1. Dismiss the appeal against conviction.
    2. Refuse leave to appeal against sentence.
46. PHILIPPIDES JA:  I agree with the reasons of Holmes CJ and the orders proposed.
47. PETER LYONS J:  I have had the advantage of reading in draft the reasons for judgment of Holmes CJ.  I agree with them and the orders proposed by her Honour.