R v Ma'afu[2016] QCA 67

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with Bond J’s reasons for refusing this application for leave to appeal against sentence.
2. GOTTERSON JA:  I agree with the order proposed by Bond J and with the reasons given by his Honour.
3. BOND J:  At a New Year’s Eve party in 2013 the applicant drank far more alcohol than he was used to drinking.  He then proceeded to commit a string of offences involving escalating levels of violence.
4. At some stage during the party, after a minor verbal altercation, the applicant slapped a 14 year old child.
5. The applicant eventually caught a cab home at about 4.00 am.  When he was asked to pay the $19.90 fare he became agitated, walked inside and returned with his wife.  He got back in the cab, saying that he must have left his wallet at the party and needed to go back.  After the cab driver said it would be another $20 each way, he punched the cab driver in the face.  His wife stopped him from punching the cab driver a second time.
6. Then, after the cab driver had driven off, the applicant retrieved a machete from the back of his house.  He walked down the street carrying the machete and his wife lost sight of him.  He was heard by some residents in a nearby street yelling and swearing and saying things like “he shouldn’t be disrespecting my kids”.
7. It transpired that one of the residents of the nearby street had been woken by the sound of his front gate opening.  He walked down the back steps of his house.  He noticed the applicant walking up the front steps to the house and confronted him.  The applicant ran down the stairs, swung his machete at the man but missed.  The man retreated to his backyard, where the attack continued for some little time.  The applicant and the man wrestled over the machete with the man having no choice but to grab the blade to stop the applicant using it on him.  That resulted in his hands being cut deeply.
8. The man called out to a housemate who came to his assistance.  During the melee the applicant struck the man on the left shoulder with the machete causing him a deep laceration.  After the housemate went to intervene with a cricket bat, the applicant ran off, threatening to return and to inflict further violence.  He must have gone home, because his wife said he came home shortly after he had left and was covered in blood.
9. The applicant co-operated with police when they attended at his house on 4 January 2014.  He said he could not remember much about the party because he was pretty drunk.  He denied slapping the child.  He recalled leaving the party in a cab and going inside to look for money when he arrived home but did not remember punching the cab driver.  He recalled having a machete but did not remember using it to attack anyone.  Indeed, he said he did not even know the man who was his victim.  The evidence did not reveal whether the applicant’s drunken references to someone “disrespecting” his kids, was a real or imagined complaint or even whether it had any relevance at all to the victim of the machete attack.
10. The applicant, who was legally represented at the time, pleaded guilty in the District Court to one count of common assault (the assault on the child); one count of assault occasioning bodily harm (the assault on the cab driver); and one count of doing grievous bodily harm with intention to do so (the machete attack).
11. References before the learned sentencing judge suggested the applicant was a 31 year old loving and caring husband, father to two infant daughters, a good employee and a religious man who often engaged in voluntary community work.  They suggested the behaviour was quite out of character.  A psychologist’s report speculated that potential triggers included: the applicant might have suffered a head injury some weeks earlier when he was assaulted after coming to the aid of a woman who was being attacked by a group of men; excessive alcohol consumption, including the unaccustomed consumption of spirits, on the night in question; and the possibility that something was said at the party which resulted in a response of explosive anger which was uncharacteristic.  The report suggested the applicant was a low risk of re-offending.
12. Whatever might have been the explanation for the applicant’s intentional violence on the night in question, it had a serious impact on at least two of his victims.
13. The cab driver suffered bruising on his left cheek and a swollen left eye.  It appeared he had a fracture to the orbit of his left eye although it was not clear whether that was caused by the attack or was an old injury.  He was left with a sunken left eye and double vision, although the latter resolved over time.  He suffered financially through losing work hours and emotionally through feeling the need to be more cautious with customers.
14. The victim of the machete attack suffered more serious injuries.  He had suffered wounds which severed tendons of his left index, middle and ring fingers and also the tendon of his right thumb.  He had also suffered an open 9 cm x 6 cm wound to the left shoulder which severed the deltoid muscle and the tendon of the supraspinatus muscle of that shoulder.  All these injuries required surgical repair in an operating theatre in an attempt to avoid permanent loss of function in the affected fingers, thumb and shoulder.  As it was, the victim complains that he suffers long term pain and some loss of function.  He suffers anxiety and now rarely leaves his house.
15. The learned sentencing judge noted:
    1. the applicant’s minor and largely irrelevant criminal history;
    2. the applicant’s level of intoxication on the night of the offending provided no excuse for his behaviour, although it might explain it;
    3. the seriousness of the offending in relation to the cab driver, categorising it as “an unprovoked gratuitous act of violence delivered to a person who was doing nothing more than going about this lawful business trying to earn a living”;
    4. the seriousness of the offending in relation to the machete attack, noting in particular:
       1. it was gratuitous and unprovoked;
       2. it was prolonged and persistent;
       3. the applicant desisted only when someone else intervened with a cricket bat and, even then, threatened to return to inflict further injury;
       4. it involved some degree of premeditation; and
       5. it could easily have had an even more serious adverse outcome for the victim;
    5. the significant physical, emotional and psychological impact which the events have had on the cab driver and the victim of the machete attack;
    6. general deterrence and denunciation were particularly significant considerations in sentencing;
    7. the applicant’s timely pleas of guilty and his co-operation with the administration of justice;
    8. the applicant’s previous good character including his employment, his steps towards rehabilitation including his giving up alcohol and his history of helping other people; and
    9. the applicant’s genuine remorse and shame for the offending and the low risk he posed of re-offending, all of which reduced the significance of the consideration of personal deterrence.
16. The learned sentencing judge thought that the degree of violence involved in the machete attack meant that he needed to consider making a serious violent offence declaration with respect to the count of doing grievous bodily harm with intent.  Such a declaration would have had the result that the applicant would have been required to serve 80 per cent of his sentence before becoming eligible for parole.  Ultimately the learned sentencing judge determined it was not appropriate to make that declaration.
17. For the count of common assault, the applicant was sentenced to one week imprisonment.  For the count of assault occasioning bodily harm, he was sentenced to 12 months imprisonment.  For the count of grievous bodily harm with intent he was sentenced to seven years imprisonment.
18. The learned sentencing judge considered the question of setting a parole eligibility date.  His Honour explained that he intended to reflect the overall criminality of the applicant’s behaviour, including in particular, the offending in relation to the cab driver, by setting a parole eligibility date which would be greater than would otherwise have been the case.  He thought that if he were dealing with just the offence of doing grievous bodily harm with intent, he would have thought a parole eligibility date of two and a half years would be appropriate, but taking the overall criminality into account, concluded that three years was appropriate.  Accordingly he set a parole eligibility date of three years after the date of sentence.
19. The applicant applied to this Court for leave to appeal his sentence on the ground that the sentence imposed was manifestly excessive.  He represented himself.  He contended that the sentence imposed was manifestly excessive having regard to:
    1. comparable authorities;
    2. his lack of any relevant previous criminal history; and
    3. the fact that he had been a good citizen and family man with two children.
20. He sought to have this Court set aside the sentence below and then sentence him within a range of five to seven years with a parole eligibility date of 18 months from the date he was initially sentenced.
21. The applicant did not seek to identify any specific error of principle by the learned sentencing judge.  His Honour plainly had regard to the three considerations adverted to by the applicant.  In order for the applicant to make good his case it would not be enough to show that the sentence imposed on him was markedly different from sentences in other cases.  It would be necessary for him to persuade this Court that:^[1]

“Having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

22. The applicant has been unable to discharge this burden.
23. In his written submissions to this Court the applicant referred only to the comparable decision of R v Piper [2015] QCA 129.  He submitted Piper was a case which involved more serious offending than his case and that reference to it supported his argument.
24. The respondent’s written submissions contended–

(a)that Piper was a case -

“in which a sentence of 7 years with parole eligibility after 3 years was reduced to the extent of the parole date being set after 2 years and 4 months (1/3 of the 7 year sentence). Piper, a 56 year old at the time, and 57 year old at sentence, pleaded guilty after his trial had commenced but before any evidence was called, to causing grievous bodily harm to the complainant with intent; and [sic] offence which he had earlier indicated intention to plead guilty to. Piper who had no criminal history and lead a productive life, due to jealousy attacked the complainant at a hotel with a knife, stabbing him six times to the neck and the face before he desisted following intervention by another. One of the stab wounds to the complainant's face lacerated an artery and without surgical intervention he was likely to die due to blood loss. The complaint at the time of sentence had recovered from his physical injuries but continued to suffer psychologically because of the applicant's conduct. The applicant was sentenced on the basis that the attack was savage, premeditated, cowardly and unprovoked and without reason. While Boddice J said at [38] that the 7 year head sentence was at the ‘upper end’ of the discretion, Morrison JA said at [9] that the authorities ‘established a general range for this type of offence as being between five and eight years’.”

(b)in relation to the comparison between the two cases that -

“The applicant in the present case had the benefit of an earlier plea of guilty; however his offending was objectively more serious than that of Piper involving multiple complainants and an escalation in violence throughout the evening culminating in the use of a large bladed instrument over active resistance in the complainant's yard for no good reason.”

25. In my view reference to Piper does not support the applicant’s case.  The respondent’s contention regarding the greater overall criminality of the present case should be accepted.  The learned sentencing judge’s approach to setting the parole eligibility date (which I have described at [18] above) appropriately gave the applicant the benefit of his early plea and his co-operation with the administration of justice and the other mitigating factors, but also was an unremarkable response to the overall criminality of the applicant’s conduct.
26. It suffices to remark on only one further case, namely that of R v Singh [2006] QCA 71, which the respondent submitted was relevantly comparable.  Singh was sentenced to imprisonment for six years after pleading guilty to unlawful wounding with intent to do grievous bodily harm.  A recommendation was made that he be considered for post-prison community-based release after two and a half years.  An application for leave to appeal against that sentence on the ground that it was manifestly excessive was dismissed.
27. The relevant circumstances of Singh were as follows:

(a)The offence came out of a period of animosity between neighbours.  In the face of some degree of provocation the offender poked the complainant in the chest with a machete; the complainant tried to kick the machete away and picked up a chair; the offender then delivered one blow to the head of the complainant.

(b)The complainant suffered a small superficial laceration to the forearm and mid torso and a deep laceration to the head which required 17 sutures but which resulted in no lasting injury.

(c)The offender did not immediately co-operate with police, but ultimately did make a timely plea of guilty.  He was 44 years of age at the time of the offence and had little relevant criminal history and a good work history with favourable references.

(d)There was no persistence or premeditation in the offences.

28. The criminality involved in the present case was plainly more serious than that involved in Singh.  An examination of the present case against the yardstick of Singh assists the respondent’s submissions supporting the decision of the learned sentencing judge.
29. I reject the applicant’s submission that the sentence was manifestly excessive.  There is no basis on which this Court should infer that the learned sentencing judge must have made some error of principle.  The contrary is the case.  The application for leave to appeal against sentence should be refused.