R v Smith[2016] QCA 9

SUPREME COURT OF QUEENSLAND

[1] GOTTERSON JA:  On 27 April 2015 at the District Court at Mt Isa, the applicant, Gavin Lee Smith, pleaded guilty to one count of grievous bodily harm charged on indictment.  The indictment alleged that on 2 August, 2014 at Mt Isa, the applicant unlawfully did grievous bodily harm to the complainant in contravention of section 320 of the Criminal Code (Qld) (Code).[1]

[2] On 29 April 2015 the applicant was sentenced to seven years’ imprisonment with parole eligibility after two and a half years.[2]  The learned sentencing judge declared four days spent in pre-sentence custody from 2 August 2014 to 4 August 2014 as imprisonment served under the sentence.[3]  Eligibility for parole was fixed at 26 October 2017.[4]

[3] A Schedule of Facts was tendered without objection at the sentence hearing.[5]  The facts set out in paragraphs 4 to 23 of these reasons are drawn from that document.

Circumstances of the offending

[4] The applicant was aged 44 years at the time of the offending; the complainant was 33.  At the time of the offending, the applicant and complainant had been in a de-facto relationship for approximately 12 months.  On the afternoon of 2 August 2014, the complainant was having a few drinks with the applicant, her mother, her sister and a male friend at her mother’s house.  The complainant’s nine-year-old son arrived at the house later in the night.  The complainant had had a few drinks but did not feel intoxicated.

[5] Once the complainant’s mother, sister and male friend had left, the complainant and the applicant argued about the male friend.  After their argument, the applicant left the house and the complainant began searching for her mobile phone and wallet.  When the complainant went out to search her vehicle, she noticed that the applicant was speaking to someone on her mobile phone.  The complainant walked onto the street and grabbed the mobile phone from the applicant’s hand.  The complainant pushed the applicant, told him to “get out” and turned to her right.  Next the complainant was assaulted by the applicant.  She does not recall the assault.  The complainant’s next memory was waking up in the Intensive Care Unit at the Mt Isa Hospital and experiencing a lot of pain.

[6] The complainant’s nine-year-old son witnessed the offending.  The offending was also captured on the complainant’s next-door neighbour’s CCTV cameras.

The account given by the complainant’s son

[7] The complainant’s son told police that he and the complainant were driving around looking for her mobile phone and wallet.  They went to the house of a friend of the applicant but the applicant was not there.  The complainant and her son drove back to his grandmother’s house and the applicant arrived in a taxi.  The son went inside to get his mother’s shoes.

[8] The complainant’s son recalled the complainant walking down the stairs and throwing the phone on the ground.  The complainant started to walk up the stairs and the applicant grabbed her by the shirt and threw her on the ground.  The son told police that the applicant punched the complainant 15 times in the face.  The applicant grabbed the complainant by the hair, kicked her and dropped her head.  The son saw the complainant’s head hit the concrete floor.  The applicant started to walk towards the hospital.

CCTV footage

[9] The applicant’s offending was captured on a CCTV camera.  The footage shows:

1. the complainant pushing the applicant;

2. the complainant attempting to walk away but the applicant grabbing her;

3. the applicant punching the complainant numerous time;

4. what appears to be the applicant pushing the complainant’s head into the ground;

5. the applicant kicking the complainant several times;

6. the applicant walking away and the complainant moving (it appears that she is sitting up); and

7. the applicant kicking the complainant in the head and walking away.

Post-offending events

[10] After the applicant left the scene, the son ran to a neighbours’ home to seek assistance.  The neighbours went outside and saw the complainant lying on the road.  The male neighbour noticed that the complainant was initially unconscious but responded after a sternum rub.  The female neighbour called the emergency services whilst the male neighbour asked the son to grab a towel, then wiped the blood from the complainant’s nose as it was impairing her breathing.

Circumstances of detection and arrest

[11] A short time later, emergency services attended the scene.  As the police dog was being released from the vehicle by his handler, the applicant was observed walking towards the complainant’s residence.  With the assistance of the police dog, the applicant was detained.  The applicant was arrested and advised of his right to silence.  Police observed blood on the applicant’s feet and hands.  In order to preserve the forensic evidence, police placed brown paper bags over the applicant’s hands and feet.

[12] The applicant provided Police with his name and the name of the complainant, but refused to answer any further questions.  The applicant was placed in a police vehicle and transported to the Mt Isa police station.  Samples were taken from the blood on his hands and feet and samples of his DNA were also taken.  The applicant was offered the opportunity to participate in an electronically recorded interview, but declined.

Medical observations and treatment at the Mt Isa Hospital

[13] The complainant was taken from the scene by ambulance to the Mt Isa Hospital.  At approximately 8.41 pm, she arrived and was treated by Doctor Melinda Van Oosterum.  The treating doctor noted the following injuries:

1. Multiple facial fractures, consistent with Le Fort Type II injuries:

(a) bilateral orbital floor and medical orbit factures;

(b) comminuted fractures of all walls of the right maxillary antrum;

(c) hairline fractures of the left medial and lateral walls of the maxillary antrum;

(d) two right zygomatic arch fractures with displacement;

(e) left zygomatic arch probable hairline fractures; and

(f) comminuted fractures of nasal bones, with possible cribriform plate fracture.

2. Extraconal superolateral retro-orbital haematoma with proptosis in the right eye:

(a) No active eye movement, fixed pupil, no papillary light reflex or accommodation, report of being able to see light but no shapes with raised intra-orbital pressures (consistent with optic nerve ischaemia and impending loss of eye)

3. Extensive facial contusions, abrasions and swelling.

[14] The complainant was treated in the emergency room with:

1. a right lateral canthotomy and inferior cantholysis; and

2. analgesia, intravenous antibiotics, DVT prophylaxis, eye drops to reduce intra-ocular pressure and tetanus immunisation.

[15] According to Dr Van Oosterum, without emergency room surgery as described above, the complainant would have lost her right eye.

[16] In the opinion of the treating doctor, the complainant’s injuries were consistent with grievous bodily harm.  The injuries resulted in serious disfigurement and the doctor concluded that any bodily injury of such a nature would endanger or be likely to endanger life or cause or be likely to cause permanent injury to health, namely the loss of the complainant’s right eye.

[17] Dr Van Oosterum also stated that the injuries sustained by the complainant were consistent with the definition of grievous bodily harm as:

1. the injury had substantially affected the underlying bony facial structure of the complainant’s face causing serious disfigurement;

2. without emergency room surgery, the right eye would certainly have been lost; and

3. ascending intracranial infection, causing meningitis and death, is a recognised complication arising from these injuries.

[18] The complainant was discharged from the Mt Isa Hospital on 4 August 2014 and was cared for by family members.

Medical observations and treatment at the Townsville Hospital

[19] On 7 August 2014, the complainant was transported to the Townsville Hospital by Royal Flying Doctor Service from the Mt Isa Hospital.  The complainant was treated by Doctor Trent Lincoln, a maxillofacial registrar.

[20] Dr Lincoln noted the following injuries:

1. Bilateral periorbital bruising;

2. Decreased right facial projection; and

3. Bilateral altered sensation of the face.

[21] A CT scan of the facial bones revealed the following injuries:

1. Fractured right orbitozygomatico maxillary complex; and

2. Fractured nasal bone.

[22] On 12 August 2014, the complainant underwent surgery to repair the right orbitozygomatico maxillary complex fracture.  The doctor noted that the fractured right orbitozygomatico maxillary complex and a fractured nose gave rise to a number of significant risks generally associated with these injuries, namely bilateral periorbital bruising, decreased right facial projection and bilateral altered sensation of the face.

[23] Dr Lincoln also noted that the complainant’s likely prognosis was very good and the effect the injuries would have had on the complainant if left untreated would have been deformed facial features.

DNA results

[24] The samples taken by the police at the Mt Isa police station were later analysed.  The complainant’s DNA was identified in the blood located on the street outside the complainant’s mother’s house as well as in the blood located on the top of the applicant’s right foot.  Mixed DNA, which included the complainant’s DNA, was identified in the blood located on the applicant’s right and left hands.

Sentencing remarks

[25] In her sentencing remarks, the learned sentencing judge quoted from the victim impact statement as to the extent and the effect of the injuries suffered by the complainant.[6]  Her Honour said:[7]

“The victim impact statement which is tendered goes more eloquently through the extent and effect of those injuries.  I don’t usually read out a victim impact statement, but I don’t think the effect of what you’ve done to this woman can be properly understood without going into some of the victim impact statement.  She’s said she didn’t remember exactly what happened but she remembers being in Mount Isa Hospital and a nurse having to cut the muscle at the corner of her right eye to relieve tension to prevent her from losing her eyeball.  Her next memory was waking up with her father crying at her bedside.

And then she was flown – after four days – to Townsville Hospital for surgery.  The surgery took five hours, due to the amount of damage to her facial bones.  As a result of the fracture to the entire right eye-socket bone – as a result of her eye fracture, sorry, the entire right eye-socket bone had to be replaced with a titanium plate and titanium mesh put in behind her right eyeball to hold the eyeball in place.

She received a fractured cheek bone, which had to be held together by five titanium screws and a plate.  She now has no bones at all on the right-hand side of her face.  It’s all titanium plates.  She received nerve damage to her teeth as well as major dental injuries.  Her entire upper set of teeth was moved to the right and caved in on the left.  She will have to have braces to her lower set of teeth, because they’ve also been moved.  She’s had to have four root canals on her front teeth, and had to have them re-done after they were initially done.  She has a broken nose which was not fixed, so she has ongoing sinus issues.”

[26] Addressing the sequelae of these injuries, her Honour continued:[8]

“She has ongoing pain as a result of the surgery.  She feels stabbing pain from her right – from her eyeball to her cheek, which is constant.  And has to use icepacks to help deal with the pain.  She can no longer sleep on her right side.  She’s been told that that pain will stay with her for life.  She has difficulty eating hard food because it causes severe pain, radiating down from her temple, where the plates sit.  She has no feeling along her nose and the top and left-hand side of her mouth.  Sometimes she burns her lips when she eats hot food because of that.

The injuries to her eye sockets have caused her to experience permanent double vision when she looks down.  If the double vision gets worse she may have to get the plate taken out of her eye, and re-position both the plate and her right eyeball.  She is unable to run any more.  She is unable to ride unable to ride motorbikes any more, as the jarring causes pain.  She’s unable to play any sport any more.

Her son has ongoing night terrors, having witnessed the assault.  He has difficulty leaving her side.  He’s in constant fear that you are going to kill her – obviously that’s not a rational fear, but it’s his fear.  He’s had to go to a psychologist, to try and help him deal with the events that he witnessed.  He’s started sleeping with weapons under his bed.  Her mother had a nervous breakdown as a result of dealing with the injuries.

She has psychological injuries.  She’s unable to be at home by herself.  She has constant dreams.  Her self-esteem’s been affected.  She’s unable to walk in public by herself.  So the facial injuries were very severe, but the effect has been enormous.”

[27] Her Honour noted the following regarding the applicant’s criminal history:[9]

“You have previous for violence against women, against your partners.  In 1995 you were convicted of assault occasioning bodily harm on your then wife – quite a serious assault occasioning bodily harm.  In 2004 you had a domestic violence order out against you and you were convicted of a breach of that order – and, again, a significant assault, although you weren’t charged with that.  So you have previous for violence – and violence of a very similar nature – although not to the extent that we see here.  The Crown has submitted that this is a case where a serious violent offence order can be made, and I accept that certainly it is within my sentencing discretion to make a serious violent offence order, given the nature of the offending.”

[28] In the wake of that, her Honour turned to consider whether to make a serious violence offence declaration.  She explained her decision not to do so in the following terms:[10]

“I’ve had regard to the principles outline in Tahier [sic], where such an order was made but – having regard to the fact that there was no weapon used in this case and that, whilst it was persistent, it didn’t take place over a long period of time, and also the fact that you are a person who – although you have previous for violence, they are quite old convictions – it seems to me that this is not a case where a serious violent offence order should be made.”

[29] By way of mitigating factors, reference was made to the plea of guilty which also evidenced remorse on the applicant’s part.  Her Honour noted that the applicant was a hard worker who was highly thought of in the work area.[11]

Grounds of Appeal

[30] The application for leave to appeal as filed sets out the following sole ground of appeal:

1. The sentence was manifestly excessive.[12]

[31] In the applicant’s outline of submissions the following two further complaints were made:

(a) that the learned sentencing judge sentenced the applicant on an incorrect factual basis and thereby fell into error;[13] and

(b) that the learned sentencing judge attributed too much weight to the applicant’s history of offending.[14]

[32] It is convenient to address complaint (a) first, then complaint (b) before considering the overarching sole ground of appeal.

Complaint (a)

[33] The applicant submits that the extent of the physical injuries described by the complainant in her victim impact statement, and subsequently referred to by her Honour in sentencing, does not accurately reflect the injuries and prognosis provided by the treating doctor and contained in the statement of facts tendered by the Crown on sentence.[15]

[34] The complainant’s knowledge of her surgical condition and treatment is submitted by the applicant to be hearsay and statements such as “She now has no bones at all on the right-hand side of her face.  It’s all titanium plates”[16] are an erroneous description of the true extent of the complainant’s injuries.[17]

[35] The applicant submits that, in consequence, the learned sentencing judge sentenced the applicant on an incorrect factual basis and thereby fell into error.[18]  It is submitted by the applicant that this is a sufficient error to cause the sentencing discretion to miscarry.[19]

[36] The respondent submits that the victim impact statement is not necessarily inconsistent with the medical information contained in the schedule of facts.[20]  It contains additional details from the complainant’s perspective about her injuries and how they affect her.[21]

[37] In my view, it was open to her Honour to rely on the victim impact statement.  In R v Evans; R v Pearce[22] McMurdo P noted:[23]

“[5]The Penalties and Sentences Act 1992 (Qld), s 15, relevantly provides:

"15Information on sentence

(1)In imposing a sentence on an offender, a court may receive any information, … , that it considers appropriate to enable it to impose the proper sentence… ."

[6]Judicial officers are entitled to act on allegations in victim impact statements in accordance with s 132C Evidence Act 1977 (Qld) which relevantly provides:

"132CFact finding on sentencing

(1)This section applies to any sentencing procedure in a criminal proceeding.

(2)The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

(3)If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.

(4)For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.

(5)In this section—

allegation of fact includes the following—

…

(c)information given to the court under the Victims of Crime Assistance Act 2009, section 15;… ."

[7]It follows from these provisions that sentencing courts may accept allegations of fact in victim impact statements which are admitted or not challenged (s 132C(2) Evidence Act). If the allegation is not admitted or is challenged, the judicial officer may act on it if satisfied on the balance of probabilities it is true (s 132C(3)), the degree of satisfaction varying according to the consequences adverse to the prisoner of finding the allegation to be true (s 132C(4)).”

[38] Defence counsel at sentence did not object to the court receiving the victim impact statement.  Therefore it was open to her Honour to rely upon it.

[39] In any event, there is no inconsistency between the complainant’s description of the titanium plates on the right side of her face[24] and the schedule of facts.[25]  The notations in it regarding the Townsville Hospital do not negate that titanium plates were put in place.[26]

Complaint (b)

[40] There is no basis for the contention, noted in the applicants’ outline of submissions, that the learned sentencing judge relied on the applicant’s history of prior offending in order to add a layer of punishment to his sentence.

[41] Her Honour did note that the applicant’s prior offending consisted of “quite old convictions”.[27]  She adverted to the age of the convictions in deciding against making a serious violent offence declaration.[28]  It is difficult to see from that context how it can be said that she added a layer of punishment to the sentence on account of them. To the contrary, it was the age of the prior offences involving violence which was evidently influential in avoiding a declaration which would have required the applicant to serve 80 per cent of his sentence before becoming eligible for parole.

[42] Further, I would add that it was appropriate for her Honour to rely on the particulars of the prior offending given by the prosecutor at sentence.  No objection was taken by defence counsel to that course; and no challenge was offered to the accuracy of any of the particulars given.

Ground 1

[43] The applicant contends that the sentence is manifestly excessive.  Here, as the respondent accurately submits, the offending was prolonged and vicious and within a domestic relationship.  The applicant kicked the complainant on the ground, walked away, and kicked her again in the head, all in the presence of her nine-year-old son.  The complainant suffered very serious injuries with continuing consequences.

[44] The applicant relies on two sentencing decisions, R v Neal[29] and R v Castle; Ex parte Attorney-General (Qld),[30] for the purpose of demonstrating that the sentence is manifestly excessive.  Neither involved infliction of grievous bodily harm in a domestic relationship. Further, in Castle, there were extenuating circumstances of youth, psychiatric difficulties and an impairment of the capacity to know right from wrong.

[45] Whilst each decision is of limited utility as a comparable sentence, the following quotation by Fraser JA in Neal is on point:[31]

“[20]In Brand, Williams JA noted that the Court had been referred to some 14 cases and observed:

“The only real conclusion that can be drawn from a consideration of the cases referred to is that the appropriate sentence for the offence of grievous bodily harm will vary significantly and that relevant factors will include the nature of the injuries sustained, the age of the offender, the criminal history of the offender, whether or not a weapon was used, whether the offence was established by one blow or whether there was a sustained attack on the complainant.”  (Footnote omitted)

The observations of Williams JA serve to remind that the comparability of relevant factors is important in identifying truly comparable sentences for grievous bodily harm offending.

[46] Of the sentencing decisions relied on by the respondent, in terms of extent of the violence committed by the applicant and the permanent harm suffered by the complainant, the most comparable is R v Darren Raymond Smith.[32]  In that case an application for leave to appeal against the imposition of a five year term of imprisonment with a serious violent offence declaration requiring the offender to serve four years before becoming eligible for parole was refused.  The offender, who had pleaded guilty to a count of grievous bodily harm, was aged 34 years at the time of the offending.  Hence, he was younger than the applicant in this case, at the time he offended.  He had a criminal history that included two prior domestic violence offences against the same complainant to whom the grievous bodily harm was done.  The grievous bodily harm offence was committed in breach of a domestic violence order.

[47] The complainant in D R Smith was 20 weeks pregnant at the time that the applicant kicked and punched her to her head and body in an attack similar to the offending in the present application.  She sustained internal injuries as well as a broken nose and required removal of her spleen and part of her pancreas.  The complainant had a slow recovery and spent three months in hospital.  It was said she would have lifelong issues.  The baby died as a result of the grievous bodily harm done by the offender to the complainant, and this was considered an aggravating factor in that case.

[48] The other decisions relied on by the respondent, R v Tahir; Ex parte Attorney-General (Qld)[33] and R v Aplin,[34] both involved use of a weapon.  The offender in each case pleaded guilty to a single count of doing grievous bodily harm.

[49] Of them, Tahir is the more comparable in terms of violence of the offending the subject of this application.  There, the offender was substantially younger than the current applicant, being aged just 21 years at the time of the offence.  The offence arose out of a relationship breakdown and in a fit of jealousy the offender used a rum bottle to hit the complainant and then held a knife to her throat.  The complainant sustained an injury to her face requiring a plate in her eye socket and had no feeling in her finger from a defensive wound.  She experienced a permanent twitch in her eye from the facial fractures, difficulty speaking, and a loss of sensation to her tongue after part of it was severed by the knife.  The use of a weapon to inflict injuries makes the offending more serious than the current application.  The offender had no previous violent offences in his criminal history.  He had two very favourable references and two psychological reports demonstrating genuine shock and remorse for his actions.  He was undergoing rehabilitation for anger management issues.

[50] The sentence in Tahir was seven years’ imprisonment.  A serious violence offence declaration was made with the effect that the offender must serve five years and seven months in prison before becoming eligible for parole.  On an Attorney-General’s appeal this sentence was substituted for a sentence of eight and a half years’ imprisonment with a parole eligibility date after serving two years and ten months, no serious violent offence declaration having been made.  The Court was of the view that too much weight had been placed on mitigating factors.

[51] In Aplin, the offender was sentenced to nine years’ imprisonment and a serious violent offence declaration was made.  An application for leave to appeal against the sentence as manifestly excessive was refused.  There, the offender punched and twice kicked or stamped with his foot the female complainant with whom he was in a relationship.  The offender was seen to be using a stick in the assaults.  As a result of her injuries, the complainant was bed bound, requiring 24 hour nursing for all her human needs.  She was not expected to recover to a state which would allow for any rehabilitation from her then current condition.  Because of the gravity of the complainant’s condition and the use of the stick as a weapon, this case is markedly worse than the present application.  Its utility as a comparable decision is all but negligible, in my view.

[52] By contrast, the decisions in D R Smith and Tahir are of considerable assistance.  In both, the range of injuries and continuing sequelae are broadly comparable with those sustained by the complainant here; and in both, the injuries were inflicted by violence in a domestic setting.  Whilst the offending with weapons was more serious in Tahir, in that case there were significant mitigating factors of a kind which are not present here.  It is instructive that in both the actual time to be served in prison before there is eligibility for parole (in D R Smith, four years and in Tahir, five years and seven months) exceeds by an appreciable margin that to be served here.  When a comparison is made with those sentences, two conclusions may be drawn.  The first is that the sentence imposed on the applicant is not manifestly excessive.  The second is that a substitute sentence of four to five and a half years with parole eligibility after serving one-third, which counsel for the applicant submitted should be imposed, would be inadequate.

Disposition

[53] As the ground of appeal has no prospect of success, it is appropriate that leave to appeal against sentence be refused.

Orders

[54] I would propose the following order:

1. Leave to appeal against sentence refused.

[55] PHILIP McMURDO JA:  I agree with Gotterson JA.

[56] JACKSON J:  I agree with Gotterson JA.