R v Herbert[2016] QCA 265

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  After a trial in the District Court the appellant was found guilty by a jury of unlawfully doing grievous bodily harm (Count 1), assault occasioning bodily harm (Count 2), and wilful damage (Count 3).  On 14 April 2016 the appellant was sentenced to three years and nine months imprisonment.  That term of imprisonment was directed to start at the end of a term of imprisonment the appellant was serving pursuant to a sentence imposed on 18 May 2015.  A parole eligibility date was fixed at 17 July 2018.  Lesser concurrent sentences were imposed for the other two offences.  The appellant has appealed against his convictions and he has applied for leave to appeal against sentence.

Conviction Appeal

2. The grounds of the appeal against conviction are that the trial judge erred by failing to leave for the jury’s consideration s 24 of the Criminal Code in combination with each of s 273 (aiding in self-defence) and s 267 (defence of a dwelling).  Those grounds concern only the convictions on Counts 1 and 2.

3. During the trial, the complainant gave evidence. The evidence in the Crown case also included a record of a police interview with the appellant and expert medical evidence about the complainant’s injuries.  The appellant’s girlfriend, Ms Collins, gave evidence in the defence case.  The appellant did not give evidence.

4. The complainant gave evidence that a car driven by Ms Collins collided with his car and drove away from the scene.  He followed her car the short distance to the driveway of a house.  The complainant said that whilst he was still driving he saw Ms Collins leave her vehicle and enter the house; Ms Collins was still inside the house when he parked his car on the driveway behind her car.  He got out of his car and noticed the appellant outside of the house running towards him.  The appellant asked the complainant what he had done to the appellant’s car.  The complainant retreated two steps towards the road and the appellant then punched him in the face.  The complainant fell to the ground.  The appellant squatted over him, punching him repeatedly in the head.  A dog ran out with the appellant and attacked the complainant, biting and scratching him whilst he lay on the ground.  (The appellant was acquitted of the circumstance of aggravation charged in Count 2 that the appellant was armed with a defensive weapon, namely the dog.)

5. The complainant said that the appellant straightened up, kicked and stomped him a little bit, and then squatted down and gave him a few more punches to the head. When the appellant grabbed the complainant around the throat with both hands and started to choke him the complainant pretended to fall into unconsciousness. (The appellant was not charged with choking the complainant.) The appellant let go of him shortly after that.  As the appellant stopped choking him he opened his eyes and noticed Ms Collins standing about two metres away watching the events.  The complainant heard the appellant ask Ms Collins to call the police.  The appellant opened the passenger door of the complainant’s car with such force a door hinge bent and the edge of the door and a side guard were damaged.  The police arrived shortly afterwards.  The complainant was taken to hospital by ambulance.

6. An orthopaedic surgeon gave evidence that the complainant suffered a displaced subcapital fracture of his left femur. That would have required considerable force and was consistent with being thrown to the ground and landing on the left hip. A medical officer in the hospital emergency department gave evidence that, in addition to the broken left hip, the complainant presented at the hospital with a multitude of scrape and scratch marks, and bruises.  The appellant formally admitted that the injury described by the orthopaedic surgeon amounted in law to grievous bodily harm.  The appellant also formally admitted that his fingerprints were found on glass in the interior of the passenger side window of the complainant’s car.

7. Ms Collins gave evidence that when her car collided with the complainant’s car the complainant jumped out of his car, ran at her car with his fists up, and screamed at her. She drove past his car, around the corner, and into her driveway. After the complainant did burnouts on the road he followed her into the driveway. Ms Collins left her car door open and ran straight inside her house, screaming out for her father or the appellant. She did not see either of them. Ms Collins said that when she went into the house the appellant went out a different door to the driveway. After the complainant stopped shouting, she looked out a door and saw that he was on the ground with the appellant standing over the top of him. The appellant called out to her, asking if she was alright. She replied that she was. The appellant told her to call police, which she did. Ms Collins walked out to the front. The complainant, “was just getting up and saying he doesn’t have to stay around here…”.

8. In cross-examination, Ms Collins said that by the time she had got out of her car the complainant was parking behind her and she also said that she looked back when she was running into the front door and saw that the complainant had just pulled his car in. When Ms Collins looked out of the house the complainant was still screaming. At that time the appellant was standing with his foot holding the complainant down on the ground. Ms Collins said that, “I thought by that time [when she looked back outside again] he would have been at my front door, or something like that, because he was intent on chasing me.”

9. The appellant gave his version of the events in the recorded police interview. He was in the garage at his girlfriend’s house when he heard a screech (which he described as like someone slamming on their brakes) and then about five to ten seconds later his girlfriend’s “come storming in the driveway screaming out for me at the top of her lungs”. She repeatedly called the appellant’s name. The appellant told police that “she’s run in the front door… as she’s gone through the front door, I’ve already gone out the side gate”.  The appellant said that he saw “a dude was behind her… well behind her car” and “she wasn’t out the front”.  The man (the complainant) “was yelling at her at the top of her [sic] lungs, going off”; “he’s walking into our property”.  The appellant said, “I thought he just attacked my… girlfriend”.  The appellant said that his “heart was just pumping like there was no tomorrow” and he “was just thinking the worst.  And I ran out, I confronted him straight away.  And then my girlfriend then came out, um, from inside and she was crying.  And so I just already thought the worst… I grabbed the dude threw him on the ground and stood on his, stood on his, um, around here… him and, and then [called] the cops and waited ‘til the cops came…”.

10. The appellant said that, after hearing his girlfriend yelling out for him at the top of her lungs and hearing the panic in her voice, “… I thought the worst… she had been attacked or something… I was just trying to do the right thing by, you know, I was trying to look after her. That’s all I was trying to do.” A police officer asked the appellant whether he saw his girlfriend when he went out of the garage. He answered “no, I heard her… like just instant reaction, I ran straight out. … And he was standing out the front. And that time she had already gone inside looking for me… And didn’t realise that I was already up the front… so I, I as I’ve come up the front of the garage from the side gate, I seen the dude standing out there yelling at the top of his lungs at my girlfriend. Cursing her left right and centre.” The appellant said that he did not know what sort of things the complainant was saying and the appellant “was already at boiling point because I thought he just attacked my… girlfriend”. The appellant said that he was angry, couldn’t think straight, and “just wanted to get rid of him”; the only way the appellant could think of getting rid of the complainant was by calling the police. The appellant asked Ms Collins to do so.

11. The appellant said that the complainant had parked his car in the driveway directly behind the appellant’s girlfriend’s car. The appellant denied that the complainant gestured towards him. He said that the complainant, “just stayed in that same spot… I went straight to him ‘cause he was going off. … He didn’t see me until I was this close to him.” The appellant said, “I know he was just there trying to do something or. … Oh, to be honest I don’t know what he was trying to do. And I was just there in best interests for my girlfriend. That’s all that I was trying to do. I thought I was doing the right thing… I grabbed him, chucked him on the ground and I stood on him and called the cops straight away.” Subsequently the appellant responded to a question whether he observed any injuries on the complainant: “[n]o, I didn’t.  I didn’t really give a shit about him, to be honest.  I wanted to hurt him… and I’ll say that proud… I thought he was gonna… hurt my girlfriend…”.  The appellant said that he thought that he was “doing the right thing by stopping him and calling the cops.”

12. It was common ground on the evidence that there was a police station across the road from the house.

Appeal Ground 1: s 24 and s 273 of the Code

13. Section 273 of the Criminal Code provides:

“[i]n any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in the first person’s aid to use a like degree of force for the purpose of defending the first person.”

14. Section 24 relevantly provides that “[a] person who does… an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act … to any greater extent than if the real state of things had been such as the person believed to exist.”

15. At the trial defence counsel contended that s 24 in combination with s 273 should be left to the jury. The trial judge concluded that those provisions were not raised on the evidence and refused to direct the jury as requested.

16. The trial judge was obliged to direct the jury about s 273 if there was any evidence capable of fairly raising that provision.^[1]  It should have been left to the jury if the trial judge was “in the least doubt whether the evidence is sufficient”.^[2]  The question must be considered with reference to the version of the facts and inferences which reasonably might be drawn from those facts which is most favourable to the appellant.^[3]

17. The appellant argued that the evidence was fairly capable of sufficiently raising issues whether: the appellant honestly and reasonably believed that his girlfriend was in imminent danger of injury; the appellant acted in good faith in aid of Ms Collins; the force used by the appellant was used by him to defend Ms Collins; it was lawful for Ms Collins to use force for the purpose of defending herself against an assault by the complainant; and the degree of force used by the appellant was not greater than that which it was lawful for Ms Collins to use against the reasonably perceived assault.

18. The appellant’s submissions assumed, correctly, that s 273 could have no application in the present case unless there was some evidence of an assault by the complainant upon Ms Collins, or some evidence that the appellant might have honestly and reasonably believed that there was such an assault, against which the appellant came to Ms Collins’ aid. The respondent argued that the evidence did not allow for any reasonable possibility of either matter.

19. The term “assault” is defined in s 245 of the Code. The first part of the definition refers to the application of force. That is not relevant here. The appellant relied upon that part of the definition which brings within the term “assault” any “bodily act or gesture” by which a person “attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose”. The evidence of bodily acts or gestures upon which the appellant relied in this appeal is the evidence that the complainant drove his car onto the driveway, got out of the car, and stood near it whilst yelling at Ms Collins. The appellant argued that the evidence of the appellant’s police interview was not to the effect that the appellant knew that Ms Collins was inside the house at the relevant time and that the evidence was in any event sufficient to raise for the jury’s consideration the question whether the complainant had “actually or apparently a present ability to effect [his] purpose” of assaulting Ms Collins.  The appellant cited Stephens v Myers^[4] for the proposition that there might be a present ability to affect that purpose even though the threatened person may not have been near enough to have been struck.

20. Words which accompany a bodily act or gesture may be taken into account when deciding whether the bodily act or gesture involved an attempted or threatened application of force such as to amount to an assault, but there must be a bodily act or gesture by which force is threatened or attempted.^[5]  The statements attributed to the appellant did not refer to the complainant driving his car onto the driveway or getting out of his car, or to any act or gesture by the complainant which arguably might have signalled an attempted or threatened application of force to Ms Collins.  Whether or not the appellant believed that the complainant originally walked or drove into the driveway, upon the appellant’s own statements the complainant remained motionless on the driveway behind Ms Collins’ car from when the appellant first perceived the complainant until the appellant threw him to the ground, and during that period Ms Collins remained inside the house.  The complainant’s evidence was to the same effect (save for his evidence that he attempted to retreat from the aggressive appellant, which I put aside for present purposes because it is yet more unfavourable to the appellant).  Ms Collins’ evidence upon this point could not assist the appellant.  Upon her evidence she remained in the safety of the house until after she looked out and saw the complainant on the ground with the appellant standing over him.

21. Furthermore, since the appellant understood that the complainant remained motionless on the driveway behind Ms Collins’ car and Ms Collins remained in the house, the appellant’s asserted belief that the complainant had earlier attacked Ms Collins and was going to hurt her could hardly form grounds for a belief by the appellant at the time of his attack that the complainant had by an act or gesture made a threat or an attempt to apply force to Ms Collins which the complainant was then actually or apparently able to carry out.

22. I accept the respondent’s argument that the evidence did not raise an issue whether there was an assault or any ground for the appellant to believe that there was an assault upon Ms Collins against which the appellant might have been aiding her. That being so, there was no potential for the application of s 273 in combination with s 24.

Ground 2: s 24 and s 267 of the Code

23. Section 267 of the Code makes it lawful for a person in peaceable possession of a dwelling to use force “to prevent or repel another person from unlawfully entering or remaining in the dwelling, if the person using the force believes on reasonable grounds… the other person is attempting to enter or to remain in the dwelling with intent to commit an indictable offence in the dwelling; and… it is necessary to use that force.” The definition of “dwelling” in s 1 of the Code comprehends only certain buildings and structures, or parts of them. It does not comprehend the driveway where the relevant events occurred in this case. The trial judge rejected defence counsel’s submission that s 267 in combination with s 24 should be left to the jury, holding that there was no evidence that the complainant was attempting to enter the house or that the appellant believed that the complainant was attempting to enter the house.

24. The appellant argued that s 267 in combination with s 24 were raised for the jury’s consideration upon the following bases: the appellant was in peaceable possession of a dwelling; he was using force to prevent or repel the complainant from unlawfully entering the dwelling; he honestly believed on reasonable, but mistaken, grounds that the complainant was attempting to enter the dwelling with intent to assault Ms Collins; and it was necessary for the appellant to use the force which he used.  The appellant argued that, upon the evidence of his recorded police interview, he thought that Ms Collins had been assaulted and that the complainant was going to assault her again.  The appellant referred to his statements in the police interview that he saw Ms Collins run into the house and that Ms Collins said in evidence that she looked out of the door at a time when she thought that the complainant would be there because he was intent on chasing her.

25. I agree with the trial judge’s conclusion. The only directly relevant evidence on the point appears to be the statement by the appellant in the police interview that “to be honest I don’t know what [the complainant] was trying to do…”. That is opposed to the appellant’s argument. Nor does the other evidence support the argument. The appellant’s assault upon the complainant occurred on the driveway some distance from the dwelling. The appellant did not refer to anything said or done by the complainant or Ms Collins which might have conveyed to the appellant that the complainant attempted to enter the dwelling. Rather, the evidence painted the picture of the complainant staying in one place behind Ms Collins’ car and (on Ms Collins’ evidence and statements by the appellant) yelling until he noticed the appellant approaching him. There was nothing in the appellant’s account or otherwise in the evidence which were capable of justifying an inference that the appellant might have believed that the complainant attempted to enter the dwelling.

26. The evidence did not raise s 267 in combination with s 24 for the consideration of the jury.

Sentence application

27. The effective sentence of three years and nine months imprisonment was made cumulative upon a sentence of four years imprisonment imposed on 18 May 2015 for trafficking in dangerous drugs. The parole eligibility date fixed by the sentencing judge at 17 July 2018 had the effect of increasing by 22 months the previous parole eligibility date for the trafficking sentence.

28. The appellant was 28 years old when he committed these offences and he was 30 years old when sentenced.  He had a relevant criminal history.  His first conviction for an offence of violence, a common assault, occurred in 2005 when he was given a modest fine for punching a young man in the face during an argument.  He committed similar offences for which he was ordered to perform community service and admitted to probation in 2006.  Soon afterwards he was convicted of assault occasioning bodily harm for an offence committed before the 2006 convictions, in that offence he knocked a man unconscious and fractured bones in his face.  The appellant was fined $2,000 and ordered to pay compensation.  He had not paid the compensation by 2007 when he was resentenced to a fine of $1,200 upon being dealt with for breaching his probation and community service orders.  The appellant was again convicted of assault occasioning bodily harm and fined $600 in 2011.  In May 2012, the appellant was again convicted of assault occasioning bodily harm.  He broke a man’s nose and tooth, and caused bruising and swelling.  For that offence he was sentenced to 12 months imprisonment with immediate parole after he had spent two days in pre-sentence custody.  In addition to public nuisance offences and offences of obstructing police, the appellant committed the offence of trafficking in dangerous drugs for which he was sentenced to four years imprisonment suspended after 16 months for an operational period of four years.

29. The sentencing judge regarded the complainant as an impressive witness, rejected the appellant’s evidence that the complainant was yelling out whilst in the driveway, and found that the complainant was there to obtain Ms Collins’ details after she had run into the back of his car. The appellant’s conduct was a grossly disproportionate reaction to the circumstances. He did not give the complainant any chance to explain himself and ran at him so fast that he could not escape. The appellant was a large, powerfully built man and the complainant was a short man of slight build. The appellant threw the complainant down and continued to assault him whilst he was injured and helpless on the ground. The force of the attack was enough to break the complainant’s hip bone. The bruising to the complainant’s abdomen was so severe that the doctor initially feared an internal injury. The complainant was in a great deal of pain and, without surgery, it was unlikely he would walk again on his own. Although the appellant called the police he was without remorse. He had wanted to hurt the complainant and was proud of what he did.

30. The sentencing judge also remarked that the appellant had a good work record and history in sports but had a history of unprovoked violence since 2005. The appellant’s attack on the complainant occurred only a year after the sentence of 12 months imprisonment had expired. The drug trafficking conviction for which the appellant was already in prison was for a very different offence which occurred in a completely different period of time. The sentencing judge considered that in these circumstances a cumulative sentence for the present offending was therefore appropriate, but that the combined sentences must be proportionate, for the totality of the trafficking offence and the present offences of violence. The sentencing judge found that the appellant had shown no remorse. Notwithstanding the appellant’s good employment record, his criminal history and the circumstances of this offending suggested that he was a serious risk to the safety of others. The violence of his offences had escalated. The appellant had a difficult childhood but was no longer a youthful offender and the prospects for his rehabilitation were now poorer. He had not been deterred by past sentences.  A firmly deterrent sentence was required for the protection of the community.  The sentencing judge observed that she would have imposed a sentence of five years imprisonment for the present offences, but because it would be a cumulative sentence reduced the head sentence and imposed an earlier parole date.

31. The appellant argued that the notional starting point of five years imprisonment was too high. The appellant should have been sentenced on the footing that his violence was a disproportionate response to a situation where the appellant perceived that the complainant, who had come on to property occupied by the appellant, had assaulted the appellant’s girlfriend and was going to assault her further.  However the sentencing judge did not err in finding that the appellant’s offences were a “grossly” disproportionate reaction and her Honour was also entitled to act upon her conclusion that this was a “vicious, cowardly attack upon a young blameless victim”.

32. The appellant relied upon R v Fisher [2008] QCA 307, R v Dillon; ex parte Attorney-General (Qld) [2006] QCA 521, and R v Craigie [2014] QCA 1 for the proposition that an appropriate head sentence, if imposed in isolation from the pre-existing sentence, was in the order of 3.5 years.  Upon that footing, the appellant submitted that, taking into the account the sentence was to be served cumulatively, the appropriate sentence was that submitted by defence counsel, namely, two years imprisonment to be served cumulatively upon the trafficking sentence with a parole eligibility date fixed at 17 September 2017, 12 months beyond the current date for the appellant’s release.^[6]

33. The sentence of four years imprisonment in Craigie took into account that he and a co-offender engaged in a serious and persistent attack on two complainants, each of whom suffered significant injuries and adverse consequences from those injuries.  That offender was 19 years old when he committed the offences, the sentencing judge took into account his disadvantaged background and antecedents, that he had a limited relevant criminal history, he had prospects of rehabilitation, he was remorseful, co-operated with the authorities, and entered the earliest possible plea of guilty.  The only issue in the appeal in Craigie concerned the appropriateness of the parole eligibility date fixed at a time which was 17 months into the sentence.

34. The offender in Dillon was 22 years old when he committed the offence.  Although he had a criminal history it was not as bad as the appellant’s criminal history, and he pleaded guilty.  The injuries suffered by that complainant were not less serious than the injuries suffered by the complainant in this matter.  The sentencing judge in that case was impressed by the offender’s rehabilitation and on appeal McMurdo P considered that the offender was making genuine efforts of rehabilitation with some apparent success.  The sentence of three years imprisonment suspended after ten months was found to be manifestly inadequate.  In varying the sentence only by extending the parole eligibility to after 15 months, the Court adopted the then “moderate approach apposite in a Crown appeal”.^[7]

35. The sentence of four years imprisonment with parole eligibility date after one third of the sentence which was imposed in Fisher took into account that the offender committed one of two separate series of assaults in company with three co-offenders.  That complainant’s injuries and adverse consequences of the injuries were more serious than in this case.  That offender pleaded guilty, he was 19 at the time of the offence and, although he had a criminal history, it apparently did not include any prior offences of violence.

36. As the appellant submitted, the circumstances of the offences in Craigie, Dillon, and Fisher might be regarded as more serious than in the present case, but other differences between those cases and the present case suggest that a more severe sentence was within the sentencing discretion here.  Most significantly, in the cited cases the offenders pleaded guilty, they had limited or no relevant criminal histories, and they were much younger than the appellant.  Importantly, upon the findings of the sentencing judge in this case, the protection of members of the community from the risk of physical harm by this mature offender was a relevant sentencing consideration.  The differences between the sentence imposed in this matter and the sentences imposed in the cited cases are explicable by those distinguishing factors.  Those cases do not demonstrate that there must have been any misapplication of principal or that the sentence imposed by the sentencing judge is “unreasonable or plainly unjust”; see Hili v The Queen (2010) 242 CLR 520 at [58], [59].

37. The appellant’s sentence was not manifestly excessive in the particular circumstances of this case.

Proposed orders

38. I would dismiss the appeal and refuse the application for leave to appeal.

39. PHILIPPIDES JA:  For the reasons given by Fraser JA, I agree that the appeal should be dismissed and the application for leave to appeal be refused.

40. DOUGLAS J:  I agree with the reasons of Fraser JA and the orders proposed by his Honour.