R v Sargent[2016] QCA 32

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  The applicant was charged on indictment with nine offences.  After a ten day trial the jury found the applicant guilty of three counts of common assault (counts 2, 4 and 5), one count of grievous bodily harm (count 6), and one count of unlawful wounding (count 7).  The applicant was sentenced to concurrent terms of imprisonment of six years on count 6, two and a half years on count 7, and 12 months on each of counts 2, 4 and 5.  The total of 869 days which the applicant had spent in pre-sentence custody was declared to be time served in respect of those sentences.  The sentencing judge fixed 19 April 2016 as the applicant’s parole eligibility date.  By that time the applicant will have served three years imprisonment (including the pre-sentence custody and excluding a period of 11 days during which the applicant was on bail awaiting sentence).
2. The applicant has applied for leave to appeal against his sentence on the ground that the effective sentence of six years imprisonment with parole eligibility after the custodial period of three years is manifestly excessive.  The applicant argued that the sentence is seen to be manifestly excessive when regard is had to the following circumstances:

“(i)The applicant made admissions to shorten the trial and cooperated to that degree with the administration of justice;

(ii)The cross-examination of the complainant in counts 6 and 7 lasted only nine minutes and did not seek to attribute any wrongdoing or blame to him;

(iii)The injuries to the complainant in counts 6 and 7, although serious, were not of the level of seriousness seen in cases where sentences of six years have been imposed;

(iv)The injuries were inflicted without any premeditation;

(v)The applicant had been the victim of violence (both historically and a few months prior to the offences) which was relevant to explain why the offences had occurred;

(vi)The applicant had no prior history for violence or a criminal history of any relevance; and

(vii)The applicant had suffered great hardship in jail amounting to extra-curial punishment.”

The circumstances of the offences

3. The offences occurred during the evening of 8 April 2013 in a bushy area adjacent to a skate park.  The 41 year old applicant was drinking with some teenagers in the semi-darkness.  The applicant had met one of the members of that group, Ms Brimble on the previous day.  During the evening, for no reason discernible from the evidence, the applicant punched Ms Brimble on the arm, grabbed her by the neck with both hands, and struck her head with his hand or elbow in a way which caused her to fall backwards or sideways.^[1]  A police officer who took a witness statement from Ms Brimble gave evidence that Ms Brimble had no observable injuries.
4. One of the teenagers, Mr Brock-Dillon, came to Ms Brimble’s aid by tackling the applicant.  In the ensuing struggle the applicant produced a knife with a retractable blade, the blade was opened, and he thrust the knife into the upper right quadrant of Mr Brock-Dillon’s abdomen (count 6) and then lacerated his right forearm (count 7).  Mr Brock-Dillon was later taken to hospital.  A CT scan showed a laceration to his liver.  Surgery was performed.  He underwent an exploration of the wound on his right chest wall which identified a defect in the membrane that envelopes the lungs (the pleura) which was surgically repaired.  The injuries amounted to grievous bodily harm because the lacerations to the liver and pleura, if left untreated, would likely have endangered his life.  The laceration to the right forearm broke the true skin and therefore amounted to wounding.
5. In a victim impact statement Mr Brock-Dillon said that since the offence he had been unable to participate in a lot of physical activities he used to enjoy.  He failed two subjects he was studying at school because both involved physical activity, and for the same reason he could not study the subject which he had intended to study after finishing school.  Following the surgery he was required to undergo rehabilitation in hospital and at home.  He was unable to sleep for a few weeks afterwards and lost his confidence.  He was always worried and looking over his shoulder.  He became less sociable.  Counselling sessions helped him a lot as did support from his family.  His mother lost her employment because of the time she was required to be at the hospital, and that impacted upon the family.
6. Following the assault the applicant left the scene, went to a local bus station, got on a bus and waited for the bus to leave.  The police had been informed of his movements and a police officer took the applicant off the bus.  The police were able to recover the knife which the applicant had left on the bus.

The applicant’s personal circumstances

7. The applicant was 41 years old at the time of the offences and was 44 years old when sentenced.  He had no criminal history in Queensland.  He had a dated Victorian criminal history involving traffic offences and possession of cannabis.  At the sentence hearing the prosecutor acknowledged that this history was not relevant to sentence.  The sentencing judge observed that the applicant had no history of violence and had a minor criminal history involving other offences.
8. A sister of the applicant supplied a reference in which she stated that the applicant’s conduct was out of character.  The applicant had a difficult childhood and problems in a relationship which failed.  About 15 years before these offences, the applicant had been the victim of violent assaults, including an assault in which he was hit with a bottle from behind and stabbed in the head with the broken end of the bottle.  The applicant, who was left without parents for a period of his childhood, himself lost access to a child of his relationship with an ex-partner; the child had been fostered out as a result of the applicant’s ex-partner’s drug abuse and the applicant was not told of that.  The applicant had a good work history but struggled with depression.
9. In December 2012, the applicant was violently assaulted in jail by other prisoners to whom it had been communicated that he was a child rapist or something to that effect.  The applicant was strangled.  During the struggle he broke his little finger and was left with an obvious physical deformity.  The stress of being in jail adversely affected his heart.  After some weeks he was seen by a doctor, rushed to hospital and his heart was required to be restarted twice.  He remained in hospital for a fortnight and was informed that there had been significant damage to his heart.  The applicant’s counsel also told the sentencing judge that shortly before the commencement of the trial the applicant’s cell mate tried to commit suicide by cutting his own throat and wrists in the presence of the applicant.

Sentencing remarks

10. The sentencing judge summarised the circumstances of the offences and the applicant’s personal circumstances.  He remarked that there was no justification whatsoever for the applicant to have acted in the appalling way that he did towards Ms Brimble.  The sentencing judge referred to statements in a Court of Appeal decision that protection of the community was crucial and deterrence was a major consideration when sentencing.  This was a vicious, unprovoked assault with a knife and the applicant had shown little, if any, remorse.  Although Ms Brimble did not supply a victim impact statement, the sentencing judge considered that there was no doubt that she would have suffered a significantly negative impact as a result of the applicant striking her head so forcefully that she fell backwards.  The sentencing judge accepted that prison had been a terrible struggle for the applicant.

Consideration

11. The applicant argued that his personal circumstances and his cooperation with the administration of justice, by making admissions and conducting the trial efficiently, warranted a lesser penalty than might otherwise be appropriate.
12. That the applicant did not have relevant previous convictions was of course a relevant consideration for the sentencing judge.  The sentencing judge’s remarks indicate that it was taken into account.  The circumstance that the applicant himself had been the subject of serious violence many years earlier could also be taken into account, but it was open to the sentencing judge to conclude that this did not merit a significant reduction in the sentence.  The respondent acknowledged that at the trial the applicant tested the evidence of the complainant and did not attempt to blacken the complainant’s character, and that the admissions made by the applicant narrowed the evidence.  The applicant did not contest the submission for the respondent that the conduct of the cross-examination and the making of the admissions would not have escaped the primary judge.  The applicant did not submit that these matters were not taken into account in the sentence.
13. The respondent argued that the efficient conduct of the trial, including the making of admissions about non-contentious matters, should be recognised as a basic level of cooperation with the administration of justice.  That may be so, but a sentencing judge may give some credit for such matters, at least to reflect their utilitarian value in the administration of justice.  The respondent also submitted that these matters were small considerations which would not justify a substantial reduction in the sentence.  I accept that, having regard to the seriousness of the applicant’s offences, such a view was open to the sentencing judge.
14. The sentencing judge also took into account that prison was unusually difficult for the applicant.  In relation to the damage to the applicant’s heart which he suffered whilst in prison, the respondent submitted that there was no established causal link between that injury and the applicant’s offending, so that the attack in prison should not be considered as extra-curial punishment.^[2]  I would nevertheless accept that, if the injury to the heart would make prison harder for the applicant that could be taken into account in mitigation of the sentence.^[3]  However, in the context of these serious offences the circumstance mentioned by the applicant’s counsel that the applicant suffered chest pain, for which he was not treated over a number of weeks and was later hospitalised, was insufficient to justify a significant discount in the applicant’s sentence.  Similarly, there was no evidence about the significance of the deformity to the applicant’s finger.  That incident too, whilst it could be taken into account by the sentencing judge, could not be thought to justify a significant discount in the sentence.
15. In the absence of any submission that the sentencing judge did not take into account all of the matters upon which the applicant relied in this application, the question must be whether, taking all of the circumstances into account, the sentence is manifestly excessive.  Upon that topic the prosecutor referred the sentencing judge to R v Bryan; ex parte Attorney-General (Qld) [2003] QCA 18 and R v Johnston [2004] QCA 12.  Defence counsel referred the sentencing judge to R v Tyson [2006] QCA 483, R v W [2004] QCA 124, and R v Dobinson [2006] QCA 357.
16. In Bryan, the Court set aside a partially suspended sentence of four years imprisonment upon a plea of guilty to doing grievous bodily harm and re-sentenced the offender to six years imprisonment.  In that case the complainant unsuccessfully sought to avoid a confrontation which the offender provoked.  During the ensuing altercation the offender produced a pocket knife with a retractable blade, opened the knife and struck the complainant at least three times.  (There are obvious similarities with the applicant’s conduct.)  One wound extended across the left chest, piercing through skin and muscle into the cavity to such an extent that the complainant’s heart and lung were visible.  There was also a laceration about 10 centimetres long to the upper left arm extending into the muscle and a three centimetre long laceration of the upper left arm extending into the subcutaneous fat.  There was a laceration to the lower lobe of the lung which did not lacerate the diaphragm.  The complainant was left with areas of numbness particularly in his left lower arm and back.  The injury amounted to grievous bodily harm because if it had not been treated appropriately it would have caused death.  That offender left the scene and sought to avoid capture.  (Again there is an obvious similarity with the applicant’s conduct.)  He sought to persuade his girlfriend to give police a false alibi, and he reinforced that with threats.  Although there were some indications of rehabilitation whilst that offender was in prison, the Court held that such a consideration could not significantly alter the appropriate penalty for the serious crime had had committed.  The only mitigating factor was the plea of guilty in the context of an overwhelming case against the offender.
17. The applicant argued that, whilst the jury did not accept that he acted in self-defence, the present case was less serious than Bryan because the applicant produced the knife after he had been set upon by Mr Brock-Dillon and other teenagers.  The submission has a hollow ring in circumstances in which Mr Brock-Dillon acted only in defence of the applicant’s first victim, Ms Brimble.  As to the applicant’s personal circumstances, the offender in Bryan also had no previous criminal history for violence and only some relevantly minor convictions, but unlike the applicant he was youthful – he was only 21 years old at the time of the offence and 22 years old when sentenced – and he pleaded guilty.
18. With those matters in mind, the sentence imposed upon the applicant finds support in the Court’s decision in Bryan.  That is so notwithstanding that the physical injuries suffered by the complainant in this case were markedly less serious than those suffered by the complainant in Bryan.  Although the evidence does not disclose that Mr Brock-Dillon was left with any lasting physical disability, his injuries were life-threatening and the adverse effects of the offence upon him and his education cannot be regarded as being insignificant.  Also, in Bryan the Court considered that the minimum appropriate head sentence was six to seven years imprisonment and that a declaration that the offence was a serious violent offence might have been justified; the sentence of six years imprisonment imposed upon appeal reflected the degree of moderation which was then often associated with a sentence imposed upon a successful appeal by the Attorney-General.^[4]
19. In Johnston an application for leave to appeal against a sentence of six years imprisonment imposed after a trial was refused.  That involved an apparently premeditated attack with a knife for a reason not revealed by the evidence, resulting in injuries of a severity which were similar to that in Bryan.  For present purposes that decision does not add to the assistance supplied by Bryan, but it is consistent with a conclusion that the sentence imposed upon the applicant was not manifestly excessive.
20. The applicant submitted that Tyson, W and Dobinson supported this application because much lower penalties were imposed in those cases and that each of them was at least as serious as the present case.  I do not accept that submission.  Tyson has little value in this case as a comparable sentencing decision because the injuries caused by that offender’s knife attacks were much less serious than in the present case (only suturing was required), there were no victim impact statements, and it was only the “potentially” life threatening blood loss which put one of the injuries into the category of grievous bodily harm.  Furthermore that offender was an itinerant alcoholic from a deprived background on Palm Island and, unlike the applicant, she pleaded guilty.  The structure of the sentence also limits its usefulness as a comparable sentence: despite the plea of guilty, that offender was required to serve 16 months of the sentence imposed on appeal of three years imprisonment in custody (including pre-sentence custody).  This structure seems to have reflected the sentencing judge’s acceptance of a submission that what otherwise would be a much longer, appropriate head sentence with early parole should not be imposed because the offender inevitably would breach parole and be returned to custody.
21. In W the offender was sentenced to four and a half years imprisonment for doing grievous bodily harm with intent.  That sentence is of little assistance here because of many factual differences: that offender did not personally wield the knife, although he went to trial he had offered to plead guilty on the basis that it was not he who stabbed the complainant and the jury indicated that it did not know who stabbed the complainant, and that offender was only 21 years of age.  Furthermore, the ground of the application to the Court was not that the sentence was manifestly excessive but that it was excessive when compared with lesser penalties imposed upon co-offenders, and the Court described the sentence as lenient.  In Dobinson the offender was sentenced to three years imprisonment suspended after 12 months on one count of unlawfully doing grievous bodily harm.  There are again too many distinguishing circumstances to make the decision useful as a comparable sentencing decision.  In particular, that offender was only 19 years old, he did not use a weapon, and he pleaded guilty.  Furthermore, the Court’s decision was only to dismiss an application for leave to appeal against sentence, and the sentence was one which “may well have been temperate”.^[5]
22. In this application the applicant relied upon a decision which was not cited to the sentencing judge, R v Norris [2012] QCA 57.  In that case the Court set aside sentences of imprisonment of five years for doing grievous bodily harm and three years for assault occasioning bodily harm whilst armed with an offensive instrument and re-sentenced the offender to concurrent terms of three years and two years respectively, with release on parole after 12 months.  That offender, who was heavily intoxicated, became involved in an argument with the two complainants and others at a service station.  She threw a punch at the first complainant which missed and then became involved in a fight with the complainant and her friends.  The complainants’ group punched and kicked the offender.  After other people broke up the fight and the complainants and their two friends got into their car, the offender took a pair of scissors from her handbag and ran with them towards the car.  When the offender was close to the car, the first complainant unsuccessfully attempted to bump the offender away by opening the car door and then got out of the car while it was still moving.  The offender then stabbed the first complainant with the scissors on the right side of the chest, leaving a wound two centimetres wide and six centimetres deep and puncturing the lung.  When the second complainant came to the assistance of the first complainant, the offender was swinging the scissors and the second complainant received a small cut about 10 centimetres long to her upper thigh and a small cut to her calf.  An indirect consequence of the injuries to the first complainant was that she was left with one breast out of shape and asymmetrical with her other breast, she lost employment and income, became depressed and anxious, and received treatment from psychiatrists.
23. Applegarth J, with whose reasons Muir JA and Margaret Wilson AJA agreed, considered that the circumstances of that grievous bodily harm offence were less serious than the offence in Bryan.  In that respect, Applegarth J referred to the fact that Bryan opened a pocket knife and struck at least three blows in a vicious attack, the injuries were not as numerous or as life threatening as in Bryan, and the scissors in the applicant’s handbag were not intended for use in gratuitous street violence.  The Court evidently did not regard the conduct of that offender in obtaining the scissors and returning to stab her victims with them as being as serious as the conduct in Bryan of producing and using a knife with a retractable blade.  Applegarth J described the lapse of time between when that offender was assaulted and when she obtained the scissors from her bag as being “not a lengthy period”, observed that it was “not obvious that the effect of being assaulted did not provoke the [offender] to act the way that she did” (although her response was “unjustified and excessive”), considered that the [offender] may have intended to use the scissors as an offensive instrument “to either frighten the complainants, damage their property or wound them” and stated that “the first complainant’s opening of the car door and emerging from the car as if to continue the fight gave the applicant the opportunity to use the scissors to inflict a serious physical injury”.^[6]  That analysis may be contrasted with the present applicant’s offence: he initiated an unprovoked assault upon a teenage girl and, when appropriately restrained from continuing the assault, produced a knife with a retractable blade and viciously stabbed a teenage boy in his abdomen.
24. Furthermore, the offender in Norris was only 19 years of age when she committed her offence and prior to being sentenced had taken steps to address her alcoholism.  Those matters were significant for the sentence imposed on appeal.  Applegarth J cited R v Kinersen-Smith & Connor ex parte Attorney-General (Qld) [2009] QCA 153 at [26] for the proposition that “[y]oung offenders with limited criminal histories and promising prospects of rehabilitation who plead guilty and co-operate with the administration of justice should receive more leniency from courts than would otherwise be appropriate”.^[7]  In this case, whilst the applicant co-operated with the administration of justice to the extent of instructions which permitted his counsel to make admissions and run the trial efficiently, he did not plead guilty, he is a mature offender, and he was found to have shown little, if any, remorse.
25. Offences of doing grievous bodily harm do not always fit neatly within categories, such as the category in Bryan or the category in Norris.  The applicant’s offence, however, falls within the description in Bryan of “an unprovoked, vicious and cowardly attack” upon an innocent person in public involving “the use of a knife in such a way as to seriously threaten life”.^[8]  The circumstance that a significantly heavier sentence than six years imprisonment with parole eligibility at the mid-point of that term might have been imposed upon the youthful offender who pleaded guilty in Bryan indicates that the sentence imposed upon the applicant was within the range of sentences available to the sentencing judge.  Although the sentence imposed upon the applicant is severe, it is not manifestly excessive.

Proposed Order

26. I would refuse the application.
27. DAUBNEY J:  I concur.
28. JACKSON J:  I agree.