R v Iese[2017] QCA 68

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  On 17 October 2016 in the District Court at Ipswich, the applicant, Mulufuaina Iese, pleaded guilty to an offence against s 320 of the Criminal Code (Qld) in that on 21 July 2015 at Redbank Plains, he unlawfully did grievous bodily harm to the complainant, Ben Van Nguyen.  On the same day, the applicant was sentenced to 18 months’ imprisonment to be suspended after serving four months for an operational period of two years.
2. The applicant filed an application for leave to appeal against his sentence on 20 October 2016.  On 28 October 2016, he was granted bail pending appeal after he had served 12 days in custody.

Circumstances of the offending

3. A Schedule of Facts tendered at the sentence hearing disclosed the following facts.^[1]  On the evening of 21 July 2015, the complainant, in company with a friend and the friend’s mother-in-law, went to the Redbank Plains Tavern to play the poker machines.  At some point, the mother-in-law left her machine momentarily to collect some money.  The applicant approached the machine and tried to place money into it.
4. The complainant told the applicant he could not use the machine because it was already being used.  The applicant asked the complainant to remove the money from the machine.  The complainant refused and suggested that if the applicant had a problem, he should speak to the manager.
5. A verbal altercation broke out between the applicant and the complainant.  The complainant put down his beer and stepped towards the applicant who struck him once to the head.  The applicant threw another three punches at the complainant’s head.  Bystanders intervened.  They separated the applicant and the complainant.  The applicant then left the tavern.
6. The incident was captured on the tavern’s CCTV system.  The relevant CCTV footage appears not to have been adduced into evidence nor viewed by the learned sentencing judge.  Notwithstanding, the applicant’s counsel at sentence, without objection, described the footage depicted as follows:^[2]

“It’s clear when one has regard to the CCTV footage that [the complainant] steps back to put his beer glass on to a poker machine before then taking a number of steps very quickly and swiftly up into [the applicant’s] personal space.  A female acquaintance of [the complainant’s] can be seen trying to push [the complainant] away but he continues to approach, and it is clear my client threw the first punch.  His instructions were though that he believed that he was about to be punched.  It’s apparent from the CCTV footage that both men are of a comparable size and stature to each other.”

A little later, counsel observed, again without objection, that it was difficult to discern from the footage whether any of the three further punches that were thrown actually connected with the complainant’s head.^[3]

7. The complainant was concussed and has no clear recollection of the incident.  He was transported to the Princess Alexandra Hospital where the following injuries were noted: a bruised left eye and skin laceration, a fractured left eye socket and bleeding into the anterior chamber of the left eye.  He was discharged that day but subsequently required surgical intervention in September 2015 to repair the medial orbit wall fracture.  If left untreated, the fracture would have resulted in diplopia and the intraocular pressure could have resulted in a permanent loss of vision.  The complainant’s injuries have continued to cause him physical pain and mental anguish.^[4]

The applicant’s post-offending conduct

8. The applicant was a regular patron of the Tavern.  The offending occurred on a Tuesday evening.  The following Friday morning, he returned to the Tavern and spoke with the manager.  He apologised for his involvement in what had occurred and left his contact details with the manager.^[5]
9. The applicant was identified with the assistance of the CCTV footage.  Police located him at his home on 31 August 2015.  He made admissions about the incident and told police that he became scared when there were three people confronting him.  He declined to participate in a formal interview.  The applicant was then formally charged on 10 September 2015 and released on bail.
10. Some months prior to the sentence hearing, the applicant wrote an eleven-line typed letter of apology to the complainant.^[6]  He acknowledged that there was no excuse for his behaviour; said that he apologised “tremendously” for it; and hoped that the complainant might one day forgive him.  The letter was provided to the office of the Director of Public Prosecutions for forwarding to the complainant in the event that the latter was prepared to accept it.^[7]
11. At the sentence hearing, the learned sentencing judge was informed that the applicant had saved $800 from his limited resources and had placed it in his solicitor’s trust account to be forwarded to the complainant “by way of some compensation”.^[8]

The applicant’s personal circumstances and prior offending

12. The applicant was 40 years old at the time of the offending and is now 42 years old.  He was born in Samoa, is a New Zealand citizen, and has lived in Australia permanently since 2005.  He is married and has five children.  He is the main financial provider for his family and has achieved this through working full-time, sometimes up to seven days a week, as a production operative in the food manufacturing industry.
13. The applicant had a single instance of prior offending in Queensland.  In January 2009, he was found guilty of taking a jug of beer from a night club, consuming liquor on a road and committing a public nuisance, all on the one occasion.  No convictions were recorded and he was fined $800 in all.

The sentencing remarks

14. In his sentencing remarks, the learned sentencing judge referred to the circumstances of the incident, the complainant’s injuries, the applicant’s apology to the Tavern manager and the information the applicant gave to police.^[9]  His Honour then said:^[10]

“Ms O'Gorman of counsel on your behalf told me that there was an element of provocation in the present case, but the schedule of facts does not support that submission.  You must have known that the particular poker machine had been used and there was money in it from the mother in law.  The complainant told you that the machine was being used.  He also said, as I have already commented on, that if you had a problem with that you should go and speak to the manager.

Although there was a verbal altercation before you punched the complainant to the head, it occurred after the complainant put his beer down and stepped towards you.  Your response was to strike him once to the head and to throw three more punches.  There was no justification whatsoever for doing that.  I don’t know what you thought you were doing.  You should simply have walked away.  I regard the offence as unprovoked.”

15. The learned sentencing judge then referred to the following as factors that he was taking into account: references that spoke of the applicant’s good character and employment history; his family and the support they were giving him; that imprisonment would place the family in “very difficult financial circumstances”; the $800 deposited in the solicitor’s trust account; the applicant’s letter of apology to the complainant; his evident remorse and his early plea of guilty.^[11]
16. His Honour rejected a submission made for the applicant that any sentence of imprisonment should be wholly suspended.  He stated that, in his view, a term of actual custody was required in the circumstances of the case.^[12]  He then imposed the sentence to which I have referred which does have a component of actual custody.

Grounds of appeal

17. The applicant relies on the following grounds of appeal:^[13]
    1. The sentencing judge erred in finding that the offence was unprovoked without affording procedural fairness to the applicant.
    2. The learned sentencing judge erred in finding that the offence was unprovoked.
    3. The sentence was manifestly excessive in all the circumstances.

Grounds 1 and 2 are interrelated.  It is convenient, therefore, to discuss them together.

Grounds One and Two

18. At the hearing of the application, counsel for the applicant acknowledged that there was an inherent difficulty in pursuing these grounds as formulated.  That was because the applicant’s plea of guilty precluded any finding of provocation as defined in s 268 of the Code as may have operated as a defence to the charge pursuant to s 269 thereof.
19. Counsel clarified that the grounds were not addressed to provocation in that sense but rather to provocation in a non-technical legal sense of provocative or goading conduct.^[14]  In the course of argument, counsel agreed that these grounds of appeal were to be understood as contending that the learned sentencing judge had erred in exercising the sentencing discretion in a House v The King^[15] sense by failing to take into account a material consideration, namely, that in assaulting the complainant, the applicant had responded to goading conduct on the former’s part.
20. There was material before the learned sentencing judge of goading conduct by the complainant.  I have set out counsel’s description of what the CCTV footage revealed.  In elaboration of that, defence counsel said a little later:^[16]

“There is evidence that the complainant himself had provoked my client to some extent and that my client was reacting out of the perceived need for self-defence, although [it is accepted] on our part that his actions were disproportionate.”

In concluding her submissions, counsel said:^[17]

“ … in some circumstances a wholly suspended sentence would be justified.  In my submission, such a sentence would be the appropriate one to be imposed today to reflect the fact that there had been some provocation prior to the commission of this offence. …”

21. The prosecutor did not challenge any of these submissions in reply.  He had, however, described the assault in his submissions as “largely unprovoked”.^[18]  This was not a submission that there had not been any goading conduct on the part of the complainant falling short of provocation as defined in s 268.
22. The description of the conduct of the complainant as depicted on the CCTV footage paints a picture of some aggression on his part towards the applicant.  He put down his beer and then took a number of steps very quickly towards the applicant.  Such was the manner of his approach that one of his companions tried to push the complainant from his course.  Notwithstanding, he managed to invade the applicant’s personal space.  The manner of approach, as so described, was one that was apt to scare the applicant.  He was no bigger than the complainant.
23. That the applicant had been approached in this manner was, in my view, a consideration relevant to the criminality of his conduct.  It was a consideration that ought appropriately to have been taken into account in formulating his sentence.
24. I now turn to the sentencing remarks relating to “provocation”.
25. It is not clear to me whether his Honour’s description of the offence as “unprovoked” was meant in a narrower sense of provocation as defined in s 268 or in a wider sense as would include goading conduct falling outside the definition.
26. Either way, his Honour erred, in my view.  If he used the word in the narrower sense, he must not have turned his mind to whether the applicant was goaded into reacting as he did and thereby failed to take that into account.  If he used it in the wider sense, then his finding not only contradicts the only material that was before him on the topic but also reveals that he failed to take the relevant consideration into account.
27. As a consequence of this error, the applicant’s sentence is liable to be set aside and the applicant re-sentenced by this Court.  It is only if, in the separate and independent exercise of its discretion, this Court considers that no different sentence should be passed, that the application for leave to appeal against sentence ought to be refused.^[19]
28. It is not strictly necessary to decide Ground 3 as an independent ground of appeal.  However, submissions made with respect to it have some relevance to a re-sentence and for that reason, I shall refer to them briefly.

Ground Three

29. In oral submissions, counsel for the applicant clarified that it was the requirement that her client serve a period of actual custody that made the sentence manifestly excessive.  The sentence of 18 months itself is not challenged as manifestly excessive.  It is of some note that a sentence of the same period was imposed in the comparable decision of R v Tapiolas^[20] to which the applicant has referred.^[21]

Re-sentence

30. It is not in dispute that the sentence of 18 months’ imprisonment is appropriate.  The real issue for this Court is whether the applicant ought to be required to serve any more of it than the 12 days he has now served.
31. This Court has, at times, observed in cases of occasioning grievous bodily harm that serving some time in actual custody is ordinarily called for; for example, in R v Cuff; ex-parte Attorney-General^[22] and in R v O'Grady; ex-parte Attorney-General.^[23]  However, in both cases, the offender was not required to serve actual custody.
32. In Tapiolas, the sentence of 18 months’ imprisonment with parole release after four months was reduced on appeal to be suspended after serving four days, the offender having spent four days in custody pending a grant of appeal bail.  There, the young offender with no previous history, but a subsequent offence of violence, had broken the victim’s right maxilla and left zygomatic arch.  There had been an error in fact finding as to events leading up to the offence.  No weapon was used; the blow was delivered spontaneously; there was no intention to cause grievous bodily harm; the force used was excessive rather than gratuitous; the offender had a good work record and favourable references; and he had made efforts at compensation which were regarded as strong factors in mitigation.^[24]
33. A more sustained attack which caused more serious and permanent injury by an offender who had no violent history and an otherwise good character, was considered by this Court in R v Clarke^[25] to which the applicant also referred.  There, a 30 month sentence suspended after nine months was reduced on appeal to include a suspension after the 71 days that the offender had already served by the time of the appeal.
34. In my view, there are aspects to the applicant’s conduct and personal circumstances which are out of the ordinary.  The high degree of remorse reflected in the letter of apology and offer of compensation and the applicant’s conduct in returning to the Tavern to give his details, illustrate that.  Those factors and the applicant’s minimal criminal record indicate that the likelihood of his re-offending is very low.  Due recognition ought also be given to the complainant’s goading conduct which immediately preceded the assault upon him.
35. Having regard to all of those matters, I am unpersuaded that any useful purpose would be served by requiring the applicant to undergo any further period of actual custody beyond the 12 days he has already spent in custody.  Nor is there a need for the applicant to be subject to a parole regime for the duration of his sentence.

Orders

36. Consistently with these reasons, I would propose the following orders:
    1. Leave to appeal is granted.
    2. The appeal is allowed.
    3. The sentence imposed on 17 October 2016 is set aside.
    4. The applicant is sentenced to 18 months’ imprisonment to be suspended after serving 12 days for an operational period of two years.
    5. It is declared that the applicant has served 12 days’ imprisonment under the sentence from 17 October 2016 to 28 October 2016.
37. McMURDO JA:  I agree with Gotterson JA.
38. FLANAGAN J:  I agree with the orders proposed by Gotterson JA and with his Honour’s reasons.