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- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
R v Chitty; Ex parte Attorney-General (Qld)  QCA 2
CHITTY, Luke Daniel
ATTORNEY-GENERAL OF QUEENSLAND
CA No 183 of 2020
DC No 2719 of 2020
Court of Appeal
Sentence Appeal by Attorney-General (Qld)
District Court at Cairns – Date of Sentence: 12 August 2020 (Morzone QC DCJ)
19 January 2021
18 November 2020
Morrison JA and Boddice and Henry JJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of grievous bodily harm – where the respondent was sentenced to two and a half years’ imprisonment, with an immediate parole release date – where the Attorney-General appeals the sentence on the ground that it was manifestly inadequate given the respondent was not required to immediately serve actual imprisonment – whether the sentence imposed failed to address the relevant sentencing principles of deterrence, denunciation and the protection of the community – whether the sentence was manifestly inadequate
R v Amituanai (1995) 78 A Crim R 588;  QCA 80, cited
R v Bryan; Ex parte Attorney-General (Qld) (2003) 137 A Crim R 489;  QCA 18, cited
R v Ford  QCA 208, cited
R v Iese  QCA 68, cited
R v Levy & Drobney; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 296;  QCA 205, cited
R v Tupou; Ex parte Attorney-General (Qld)  QCA 179, cited
C W Heaton QC for the appellant
M J Copley QC for the respondent
Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent
- MORRISON JA: I have read the reasons of Boddice J and agree with those reasons and the orders his Honour proposes.
- BODDICE J: On 12 August 2020, the respondent was convicted, on his own plea of guilty, of one offence of grievous bodily harm. He was sentenced to two and half years' imprisonment, with an immediate parole release date of 12 August 2020.
- The Attorney-General appeals that sentence on the ground it was manifestly inadequate. The inadequacy is said to arise as a consequence of the imposition of a sentence which did not require the respondent to immediately serve actual imprisonment.
- At issue, is whether the sentence imposed failed to address the relevant sentencing principles of deterrence, denunciation and the protection of the community and, as a consequence, was manifestly inadequate.
- The respondent was born on 5 October 1993. He was aged 26 at sentence and 25 at the time of the commission of the offence.
- The respondent had a criminal history containing one entry, being a conviction in the District Court of Brisbane on 11 February 2013 of an offence of affray, committed on 8 January 2012.
- On that occasion, the respondent was placed on probation for 12 months and ordered to perform community service for 120 hours, within a period of 12 months. No conviction was recorded.
- The respondent was 18 years of age at the time of the commission of the offence of affray. The respondent pleaded guilty to that offence.
- Relevantly, the circumstances of that offence were that, at a time when a male person was engaged in a heated exchange with the respondent’s friend, the respondent punched that other man who fell to the ground. That man suffered facial injuries and a broken jaw, which required surgery.
- The offence of grievous bodily harm was committed on 6 August 2019. The complainant, a 39 year old male, had been drinking with friends at a venue in Cairns earlier that evening. The respondent had also been drinking in the city, with a childhood friend.
- Shortly after 11 pm, the respondent and his friend entered a McDonald’s restaurant and purchased food. Whilst they were eating that food, the complainant entered the restaurant. He was unknown to the respondent.
- The complainant ordered a meal and waited near the counter. A short time later, the respondent went to order more food. He also waited near the counter.
- CCTV footage, captured by the internal cameras within the restaurant, recorded that, whilst awaiting their food, the complainant and the respondent exchanged brief glances. After a short time, the respondent was joined at the counter by his friend.
- The complainant collected his meal and approached the respondent as he left the restaurant. The complainant moved his head close towards the respondent’s face. There was no physical contact. This conduct was accepted by the sentencing Judge as confrontational, initiated by the complainant.
- CCTV footage depicted the respondent as smiling towards the complainant as he approached and as he moved away. There was no indication of a hostile confrontation. There was, however, a verbal interaction at this time.
- At one point in this interchange, the complainant put his hand on the respondent’s side. The respondent gently pushed him away. There was another physical connection, which again resulted in the respondent pushing the complainant away.
- CCTV footage depicts continuing conversation with the respondent pointing towards the corners of the store. The sentencing Judge accepted the respondent was, at that stage, pointing to the cameras in the restaurant, in response to what was said to be the complainant’s suggestion they should fight outside of the restaurant.
- Throughout this interaction, the respondent’s friend is standing adjacent to the respondent. He displays no concern at any time. At one point, he moves to collect their food from the counter. That friend later told police the complainant had told the respondent they should “take it outside” but he did not feel threatened by the complainant’s behaviour at all.
- When the respondent’s friend returned to the respondent and the complainant, the respondent turned towards the front door, followed by the complainant and the respondent’s friend.
- As the respondent opened the door, the complainant turned towards the respondent’s friend. The camera footage depicted the respondent take two steps back towards the complainant and punch the complainant once in the face.
- The complainant fell to the ground, striking the back of his head. He lay motionless. The respondent turned to open the door and left the store with his friend. The respondent made no effort to assist the complainant lying on the ground.
- The respondent told police the complainant had punched him in the stomach with a closed fist before striking the respondent a second time to the throat and threatening to go outside and bash and kill the respondent. The complainant had also threatened to “bash” the respondent’s friend. The respondent claimed the complainant was angry and had “evil in his eyes”. The respondent told police he was under “extreme provocation” and was fearful for his and his friend’s lives.
- That version was entirely inconsistent with the CCTV footage.
- The respondent further told police that, as they went to leave, the complainant tried to stop the respondent’s friend from leaving and had a clenched fist. The respondent said he pushed the complainant’s upper chest with an open hand to prevent him from striking his friend before they left the restaurant. He denied ever seeing the complainant fall to the ground and denied striking the complainant with a closed fist. Again, this version of events was inconsistent with the CCTV footage.
- The complainant provided a victim impact statement. He had no memory of the incident but complained of ongoing physical, emotional and financial impacts of his injuries, which included a broken jaw in three places, necessitating surgery, and repair to his teeth. Of particular significance, the complainant complained of ongoing vestibular dysfunction, as well as regular headaches and vertigo. These conditions materially affected his career as a professional airline captain. The complainant also had difficulties performing household duties and with emotional instability. His loss of income and medical expenses were said to amount to in excess of $140,000.
- The sentencing Judge referred to the very serious nature of the offence of grievous bodily harm and the circumstances of the respondent’s offence, namely, that he, after uninvited confrontational conduct by the complainant in a public restaurant, suddenly struck the complainant’s face, causing him to fall and hit his head and lose consciousness. He had left the complainant in that position.
- The sentencing Judge observed that the complainant had suffered significant long term injuries, requiring hospitalisation and leaving the complainant with conditions which impacted on his relationship and family, as well as his occupation.
- The sentencing Judge observed that, whilst the respondent was 25 at the time of the offending and still a young man at 26 at the time of sentence, gratuitous violence was an ongoing concern in the community, which impacted on personal and public safety. The offence had occurred within a restaurant and involved a reaction, grossly disproportionate to the complainant’s earlier conduct.
- The sentencing Judge accepted that the respondent had had dysfunction in his upbringing and had had a promising sporting career cut short by injury. The respondent had, thereafter, applied himself to the workforce and was a highly valued and respected employee. Family members and work colleagues spoke well of his personal capacity and his professionalism.
- The sentencing Judge accepted the respondent was in the midst of a very acrimonious relationship breakup, with responsibility for the care of his children, and had been operating under the challenges of unmedicated and untreated medical conditions, which fitted the criteria of major depressive disorder, generalised anxiety and panic disorder. The respondent had been receiving psychological treatment. There was significant optimism in terms of the long term prognosis.
- The sentencing Judge accepted the respondent’s letter of apology, noting it acknowledged the consequence of his behaviour to the complainant. The sentencing Judge accepted that the respondent was genuinely remorseful and that the offending was out of character and at odds with his moral values.
- The sentencing Judge referred to the principles of sentencing, including the need for deterrence and rehabilitation, as well as the protection of the community and denunciation for the respondent’s criminal conduct. The sentencing Judge accepted the respondent had pleaded guilty. Whilst it was not of earliest time, it had saved further trauma for the complainant.
- The sentencing Judge accepted that, at the time of the incident, the respondent was in a downward spiral and negative state, overlaid by his personal circumstances and stressors, and the complainant’s uninvited, initial contact provided annoyance and a level of aggression, which the respondent had tried to dissuade initially.
- The sentencing Judge accepted the respondent perceived an escalating threat and that the complainant invited the respondent outside to take it further, which was provoking behaviour. However, the respondent’s reaction with a pre-emptive strike was grossly disproportionate, explained by poor judgment due to his mental state and perception of physical altercation.
- The sentencing Judge found that the respondent’s impaired functioning and symptoms, as a consequence of his undiagnosed conditions, went some way to making the respondent’s case less important as a vehicle for general deterrence.
- The sentencing Judge accepted the respondent had made significant efforts to address those medical conditions, which had now improved with proper management. It is likely a sentence of imprisonment would weigh heavily upon him, having regard to those mental health conditions.
- The sentencing Judge accepted the comparable decisions provided some guidance. The respondent’s offending did not, however, involve gratuitous street violence, nor emergency services officers. The respondent also had good prospects of rehabilitation. Whilst he had a past criminal history, involving felling a man by one punch in public, that occurred when he was 18 years of age and in circumstances where it may well be that his mental health had some aspects of similarity.
- The sentencing Judge concluded:
“As I consider the nature and seriousness of your offending, it requires a term of imprisonment. The question is how and when you should be released. For count 1, grievous bodily harm, I sentence you to two years and six months of imprisonment. As to how long you ought spend in prison and how you should be released, I’ve taken into account your plea of guilty; the timing of it; your co-operation to bring the matter to a conclusion, saving the complainant from evidence; your age; your relative youth, although at the outside. I’ve looked at your criminal history and its context as a very young adult in particular circumstances and your otherwise development and good character. I’ve looked at how imprisonment will impact upon you and your family. I’ve spoken of the impaired state of judgment – impaired state of your judgment at the time and your good prospects of rehabilitation.
I think it is important that you be supported on your release. So I’ve decided that your release will be in the form of parole. That means a parole officer will be assigned to you for the time that you’ve been released until the end of your term of imprisonment. As to how long you ought spend in custody, I have looked at the same things. I’ve come to the view – and I think it is appropriate having regard to all that I’ve said that a parole release date ought to be set at the 12th of August 2020. That is today. You’re going home. Don’t underestimate for a moment, Mr Chitty, how close you came to exiting through the doors to the cells.”
- The Attorney-General submits that, whilst there was evidence of long term, undiagnosed medical conditions, there was good cause for circumspection as to a conclusion that those conditions impaired the respondent’s capacity, making him a less important vehicle for general deterrence. The respondent minimised his offending conduct and initially attempted to shift blame to his victim, inconsistent with the CCTV footage. The respondent also gave the reporting psychiatrist an account of his earlier offending different to the factual basis of his plea of guilty.
- Against that background a need for personal deterrence remained, as did the need for general deterrence and denunciation. That was particularly so having regard to the importance of deterrence in the sentencing of young men, who commit serious acts of violence, in public, upon innocent members of the community, and the respondent’s prior criminal conviction also involving a public occasion of physical violence.
- The Attorney-General submits the sentencing Judge overlooked the need for general deterrence, in exercising the sentencing discretion. Public violence, leading to significant consequences, requires a strong sentencing response to deter likeminded individuals. A sentence involving actual imprisonment is a powerful means of providing that deterrence and the requisite denunciation for such criminal conduct.
- The Attorney-General submits that, once it is accepted that the sentencing Judge overlooked the need for deterrence and denunciation, the sentencing discretion miscarried. A sentence requiring the respondent not to serve actual imprisonment was manifestly inadequate.
The respondent’s submissions
- The respondent submits the sentencing Judge specifically had regard to general and personal deterrence and denunciation. Those principles were not overlooked in the exercise of the sentencing discretion.
- Further, having regard to the complainant’s annoying, aggressive and provoking initial conduct and the respondent’s particular circumstances, a proper exercise of the sentencing discretion allowed the imposition of a sentence by which the respondent was immediately released into the community, subject to parole.
- As such a sentence fell within a permissible range of sentence for the respondent’s offending, the sentence imposed was not manifestly inadequate.
- Sentencing of relatively young offenders generally gives rise to the importance of considerations of rehabilitation. However, for some time Courts have recognised and stressed the importance of deterrence, both general and personal, in the sentencing of young men for serious acts of public violence upon innocent members of the community.
- The need for such deterrence has been stressed, notwithstanding that the offending involved a single punch from remorseful young men, who pleaded guilty and had promising rehabilitative prospects.
- Whilst it may be accepted that the sentencing Judge properly had regard to the respondent’s age, mental health and prospects of rehabilitation, his conduct involved a forceful punch without warning in a public place, with catastrophic consequences. The criminal law has long recognised that culpability for a criminal act does not stand in isolation from its consequences. In R v Amituanai, Pincus JA observed:
“It is the extent of that damage which is the principle justification for the sentence imposed below. One could perhaps defend a legal system in which the particular consequences for the victim of such a blow are treated as of little significance and the court is required to focus solely on the circumstances of the blow itself. But that is not our system; for reasons which are evident enough, the offender will find that his punishment may depend on the extent of the damage the victim happens to sustain. That is, the risk that a blow which might by good luck have caused little damage in fact has catastrophic results, as it had here, is one which is shared by the victim and the offender.”
- That observation is of particular significance in the present case. The respondent’s violence resulted in significant physical injuries, with permanent, long term deficits impacting on the complainant’s career.
- Further, the complainant’s initial conduct, although unsolicited and actively discouraged by the respondent, did not warrant such a disproportionate response, even allowing for the respondent’s undiagnosed mental health conditions. The need for deterrence, both general and personal, was particularly warranted having regard to the respondent’s prior conviction, albeit for the offence of affray, in which the respondent had again delivered a single punch to another person in a public place.
- The sentencing Judge, although earlier observing there was a need for deterrence and denunciation, focussed only on the respondent’s prospects of rehabilitation when determining whether, in the proper exercise of the sentencing discretion, the respondent ought to be required to serve actual time in custody.
- Whether an offender is required to serve actual time in custody is a central aspect for consideration in respect of both general deterrence and denunciation. As Morrison JA observed in R v Levy & Drobny; Ex parte Attorney-General (Qld):
“Cases of this sort often involve young men who are intoxicated and seemingly indifferent, at least at the time of their assault, to the consequences of what they are doing. In many of the cases the assailants express remorse once they are sober and the consequences are known. Many seem to have little in the way of criminal history and inevitably, because of their youth, have some prospects of rehabilitation and employment. But all of those matters cannot deny, in an appropriate case, the need for public deterrence to be recognised by a term of actual imprisonment.”
- A consideration of the sentencing remarks as a whole supports a conclusion that the imposition of a sentence, which did not require the respondent to serve actual custody, did not have proper regard for the true nature of the respondent’s serious offending and its consequences. Such a sentence evidences a misapplication of the sentencing principles, with a disregard for the sentencing principles of deterrence and denunciation. The sentence imposed was manifestly inadequate.
- Such a conclusion is also supported by a consideration of comparable yardsticks.
- Whilst in R v Iese, this Court granted leave to appeal against a sentence of 18 months’ imprisonment, to be suspended after serving four months for an operational period of two years, ordering instead that the sentence be suspended after serving the 12 days the offender had served in custody before release on bail pending appeal, there are aspects of that offender’s conduct and personal circumstances which were acknowledged by the Court to be out of the ordinary. They included a high degree of remorse, reflected in the letter of apology, an offer of compensation, the offender’s conduct in returning to the scene to give his details and a minimal criminal history which contained no prior offence involving violence.
- By contrast, the respondent had a previous appearance in Court for an offence in which he had engaged in public violence. The respondent had also shown no concern for the complainant, leaving the scene and giving a patently false account to police, seeking to blame the complainant for his actions.
- As the sentence imposed was manifestly inadequate, it is necessary to re-exercise the sentencing discretion.
- Although the respondent’s offending conduct and the consequences of his actions may have justified a head sentence significantly higher than two and a half years’ imprisonment, it is conceded by the Attorney-General that the head sentence fell within a proper exercise of the sentencing discretion.
- Having regard to the respondent’s relative youth and personal circumstances, including his undiagnosed and untreated medical conditions, such a concession is properly made.
- In re-exercising sentencing discretion, I would order that the respondent be imprisoned for two and a half years.
- Having regard to the factors in the respondent’s favour, including his relative youth, his personal circumstances, including his medical conditions and his responses to treatment, together with the cooperation shown by his pleas of guilty, I would order that the respondent be released from custody after serving eight months of that sentence.
- I would order:
- (1)The appeal be allowed.
- (2)The sentence below be set aside, to the extent that the respondent’s parole release date be fixed at 19 September 2021.
- (3)The sentence below otherwise be confirmed.
- I would further order that a Warrant issue for the respondent’s arrest, to lie in the Registry for seven days.
- HENRY J: I have read the reasons of Boddice J and agree with those reasons and the orders his Honour proposes.
R v Tupou; Ex parte Attorney-General (Qld)  QCA 179; R v Bryan; Ex parte Attorney-General (Qld) (2003) 137 A Crim R 489;  QCA 18.
R v Ford  QCA 208 at .
(1995) 78 A Crim R 588 at 589.
 QCA 205 at .
R v Tupou; Ex parte Attorney-General (Qld)  QCA 179; R v Levy and Drobny; Ex parte Attorney-General (Qld)  QCA 205 (and the cases there cited).
 QCA 68.
- Published Case Name:
R v Chitty; Ex parte Attorney-General (Qld)
- Shortened Case Name:
R v Chitty
 QCA 2
Morrison JA, Boddice J, Henry J
19 Jan 2021
- White Star Case: