Hamilton, Gavin Raymond v The Queen
[1998] TASSC 24
•2 April 1998
24/1998
PARTIES: HAMILTON, Gavin Raymond
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 47/1997
DELIVERED: 2 April 1998
HEARING DATE/S: 3 March 1998
JUDGMENT OF: Cox CJ, Crawford and Slicer JJ
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Parity - Generally - Correction by Court of sentence which is unduly above the range.
Aust Dig Criminal Law [835]
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Application to reduce sentence - When granted - Particular offences - Offences against the person - Generally - Assault - Whether fifteen months' imprisonment wholly suspended and $500 fine is manifestly excessive.
Lowe v R (1984) 154 CLR 606, Griffiths v R (1976 - 1977) 137 CLR 293, applied.
Aust Dig Criminal Law [1010]
REPRESENTATION:
Counsel:
Appellant: T J Ellis
Respondent: D G Coates
Solicitors:
Appellant: Clarke & Gee
Respondent: Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: 24/1998
Number of pages: 6
Serial No 24/1998
File No CCA 47/1997
GAVIN RAYMOND HAMILTON v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
CRAWFORD J
SLICER J
2 April 1998
Orders of the Court:
Appeal allowed.
Sentence quashed.
Substitute a sentence of six months' imprisonment wholly suspended on condition that the appellant be of good behaviour for a period of two years from this day.
COX CJ
The facts of this appeal are stated by Crawford J, whose Reasons for Judgment I have had the advantage of perusing in draft. I agree that this appeal should be allowed because, in my view, a sentence of fifteen months' imprisonment, albeit that its execution was suspended for a period of three years upon condition that the appellant be of good behaviour during that period, together with a fine of $500, is significantly beyond the range of sentences crimes of this nature generally attract and can be said in the circumstances of the case to be manifestly excessive. I find myself, however, unable to agree that a wholly suspended sentence of six months' imprisonment is an appropriate penalty for the appellant's offence.
The attack was unprovoked by the complainant who was the hapless victim of the appellant's drunken resentment at having been ejected by others from the hotel where they had been drinking. The injuries sustained by him were not minor and affected him for a substantial period of time. At the time of sentencing, some 3½ years after the incident, the evidence indicated that there was no long term residual effect from the assault and the Court must therefore sentence on this basis, but the partial loss of sight in the right eye in the first twelve months after the incident and the other disabilities he suffered, both before and after that first year, indicate that the injuries were of considerable severity.
The learned sentencing judge was persuaded to suspend the sentence he imposed, mainly by the fact that through no fault of the appellant, the matter had not been reported to the police for 3 years nor come to trial for 3½ years and the material before him indicated that the appellant had put his unruly past behind him and was now in a stable domestic and work situation. The total suspension of a term of imprisonment does have a tendency to rob the penalty of much of its effect as a deterrent. While the sentence remains one of imprisonment and puts the offender in jeopardy of having to undergo it in full if he fails to observe the conditions on which it is suspended, the fact remains that even where there is a breach, the Court retains a discretion whether or not to put it into execution in whole or in part, and provided the appellant is of good behaviour, as every citizen is required to be, throughout the period of suspension, he will not suffer incarceration at all. In these circumstances the imposition of some other punishment from the Court's sentencing armoury may be a salutary reminder to the offender that his offence comes at an immediate price. With respect, I think in the circumstances of this case the combination of a fine with a suspended sentence of imprisonment was an ideal way of marking the unacceptability of this kind of cowardly attack without destroying the progress towards decent citizenship the appellant had apparently made since the commission of this somewhat stale offence but nonetheless imposing some immediate penalty upon him. The combination of a sentence of that duration with a fine was, however, too much of a departure from a sentence within an appropriate range. I would substitute a sentence of eight months' imprisonment, wholly suspended for two years from today, and impose in addition a fine of $500.
CRAWFORD J
The appellant was indicted on one count of causing grievous bodily harm contrary to the Criminal Code, s172. Particulars of the charge, as contained in the indictment, were that, at Devonport on 27 November 1993, he caused grievous bodily harm to Anthony John Flannery by punching him to the head, thereby fracturing his cheek bone and causing loss of sight from injury to the right eye. He pleaded not guilty. The identity of Mr Flannery's assailant was the main issue at the trial. On the second day of the trial, on 22 May 1997, the jury found the appellant not guilty of causing grievous bodily harm, but guilty of assault. On 23 May 1997, the learned trial judge sentenced him for the assault to fifteen months' imprisonment and fined him $500. The imprisonment was wholly suspended for a period of three years upon condition that the appellant be of good behaviour during that period of time.
The appellant has appealed from the sentence, his complaint being essentially confined to the length of the wholly suspended term of imprisonment. The grounds of the appeal are that the sentence was manifestly excessive and "more accurately reflected" the sentence which would have been appropriate if he had been convicted of the crime of which he was acquitted, that of causing grievous bodily harm.
In the early hours of 27 November 1993, the appellant was involved in a melee at the Tamahere Hotel in Devonport. A number of people, including him and his brother, were ejected from the hotel by security and other staff, via a storeroom and alley to the street. The complainant was in the hotel with his wife. He was in no way involved in the melee and had no altercation or disagreement with the appellant. His evidence was that he went into the alley to relieve himself. He could recall little of the assault. He felt one blow to the left side of his head near the eye and several other blows. A witness, Mr Darkiewicz, gave evidence that he saw the appellant, his brothers and some other people being ejected. When he was in the alley, he thought everything had died down when the appellant "came running through, and clocked" the complainant who fell to the ground. The appellant then "followed him down and drove a couple more into him". Mr Darkiewicz said that he then grabbed the appellant by the hair and pulled him up. The appellant took "a couple of swipes" at him. Mr Darkiewicz got him in a headlock and, with assistance, put him back out again. Later, when Mr Darkiewicz thought that everything had settled down, he went to the front door of the hotel to go home and the appellant and his brother were outside, yelling out obscenities and wanting Mr Darkiewicz to come out and "continue on with things". Mr Darkiewicz apparently retreated inside.
Both of the complainant's eyes were blackened by the assault. Next morning the right side of his face ballooned when he blew his nose. He was admitted to the Mersey General Hospital at Latrobe for a night and later that week to the Burnie Hospital. Some form of facial fracture had taken place. In an operation on 1 December 1993, a metal plate was inserted and six days later he was discharged. Due to an infection in his right cheekbone, he underwent further surgery on 6 September 1996, when the plate was removed. The information before the learned judge at the time of sentencing did not allow for a complete understanding of the extent of any remaining disability at that time. When he was discharged from the Burnie Hospital in December 1993, he was found to have limited eye movement and partial loss of sight in the right eye and a specialist believed that condition lasted for about twelve months. In the course of his evidence at the trial, the complainant said that following the operation in December 1993, he lost quite a considerable amount of vision in his right eye. He said that a little bit came back in the next twelve months. The learned judge then asked him a leading question, "so it is still affected badly is it?" The complainant replied with "yes" and added that it was "just out of focus ... and light mainly affects it, it just feels like a sort of — or it is half closed". He was not cross-examined about those matters and that is explainable, for the precise nature of his remaining disability would not have affected the issue of the appellant's guilt. However, following the verdict, counsel for the Crown referred to the September 1996 operation, in which the metal plate was removed, and informed the learned judge that the surgeon had stated that the complainant had made a full recovery from all his disabilities. The only residual disability the surgeon thought might be suffered in the next few months would be some tenderness and aching to the right side of the face due to the re-opening of the wound in that operation. The surgeon regarded it as a possibility that the injuries could lead to chronic sinusitis, but that condition had not arisen yet. Counsel for the Crown said that it was certainly the case that for the first twelve months following the assault, the complainant had focusing problems, but there was no medical evidence to support his claim in the witness box that such problems still existed. Counsel for the appellant submitted to the learned judge that other than some aching and pain, there was no indication of a long term residual effect from the assault. The contrary was not established beyond reasonable doubt. See Nash v Haas [1972] Tas SR 1 at 2, 3; R v Turnbull (1994) 4 Tas R 216; R v Storey (1997) 89 A Crim R 519.
It was not until almost three years after the assault that the complainant first reported it to the police. The reason for the delay was not explained, but counsel for the Crown accepted that there was an inordinate delay before the complaint was made. The appellant's counsel advised the learned judge that the appellant had no idea of any consequences from the incident for three years, through no fault of his own.
The appellant was 23 years old at the time of the assault and 26 when sentenced. His record of court appearances suggests that for a period of his life he may have been drinking excessively and behaving in an unruly way when affected by alcohol. In 1989 he was fined for disturbing the peace. He committed this assault in November 1993. On 17 July 1994, he committed two offences, engaging in disorderly conduct and resisting arrest, for which he was also fined, in March 1995. He had no other material record. His counsel explained to the learned judge that in August 1994 the appellant entered into a de facto relationship and had kept out of trouble since. Counsel referred to him as a devoted family man, a hard worker who had put all his past and his hotel drinking behind him. Counsel asked the learned judge to have regard to the fact that the assault was committed in heated circumstances and should not be considered as a cold blooded attack on the street on a passing stranger. The appellant and the complainant were known to each other.
In his comments on passing sentence, the learned judge said that the reason for the assault remained a mystery, noting that the appellant had been drinking alcohol over a fair period of time and, on his own admission, he was not a good drinker. His Honour also noted that the appellant was angry at the time and thought that perhaps he had mistaken the complainant for someone else. His Honour referred to the complainant suffering severe injuries to his right eye, requiring two operations. That was not completely accurate, as the operations concerned the complainant's cheekbone and not his eye. His Honour accepted that the inordinate delay in the proceedings should be taken into account in mitigation and accepted that during the period since the assault, the appellant had altered his lifestyle and had settled into a stable de facto relationship, as a result of which he had assumed parental responsibilities. It was noted that he had no previous convictions for serious violence. The learned judge thought that the verdict of the jury may have been explicable on the basis that the jury was unable to infer that the appellant had the requisite state of mind to justify a verdict of guilty of causing grievous bodily harm. For that purpose, it would have been necessary for the jury to be satisfied beyond reasonable doubt that the appellant realised that if he struck the complainant, it was likely that grievous bodily harm would be caused. His Honour continued:
"That you have been convicted of the lesser offence must properly be recognised in the penalty which I impose, of course. But I must advise you that had you been convicted of causing grievous bodily harm I would not have hesitated to impose an immediate gaol term of substantial duration. As it is there is a clear tension in the sentencing process which I must confront. You committed an assault consisting of several blows to the head. The first blow appears to have been in the nature of a king hit. It was delivered without warning, Mr Flannery was intoxicated and did not retaliate. It was a cowardly attack and significant injuries were caused. The immediate consequences were severe.
Assaults of this nature require a sentence calculated to deter violent behaviour of this kind. Patrons should be entitled to attend hotel functions without running the risk of serious injury. In my opinion a prison sentence is the only proper response to barbaric violence of this kind. In normal circumstances such a sentence should not be suspended as to do so means that its general deterrent message is reduced or nullified. Although it took 3½ years for the matter to come to trial, you did not contribute to that delay. On the other hand, until September last year, you had no real reason to anticipate that you would be prosecuted. In other words, there is no reason to think that you have been living with the apprehension of punishment hanging over your head like the sword of Damocles during the whole of the intervening period. Nonetheless, the delay is an important consideration, and this has been properly conceded by Crown counsel, Mr Coates.
After anxious consideration overnight, I have concluded, not without a good deal of hesitation, that a partly suspended sentence would not be inappropriate."
It is my opinion that the sentence of fifteen months' imprisonment, coupled with the fine of $500, was manifestly excessive, notwithstanding that all of the term of imprisonment was suspended. I am satisfied that the term of imprisonment was far greater than experience and sentencing records reveal would have been expected from judges of the Court. Consistency in punishment is a fundamental element of sentencing. Lowe v R (1984) 154 CLR 606 at 610 - 611; Griffiths v R (1976 - 1977) 137 CLR 293 at 310. A sentence of fifteen months' imprisonment for a single count of assault is an unusually long one. That is not to suggest that such a term will not be appropriate in particular cases, but a sentence of that severity has only been imposed in the past for assaults in very bad cases. I would place in that category some cases of extended violence or multiple counts, other cases of particularly appalling violence, cases where permanent and significantly disabling injuries resulted and cases where the offender had a significant record for violence. The learned judge's description of this case as one of a cowardly attack causing significant injury was correct, but a sentence in the range of six to nine months' imprisonment would have been within the expected range for a case such as this and adequate to express, on behalf of the public, condemnation of the assault, at the same time having regard to the fact that the appellant had not previously appeared before a court for a crime or serious offence.
I would therefore allow the appeal, set all of the sentence aside and impose in its place a sentence of six months' imprisonment. Like the learned judge in this case, I would suspend all of that sentence upon condition that the appellant is of good behaviour. I would express the period of that suspension as two years from today. There are signs that the appellant has changed his habits to the benefit of those with whom he comes into contact and also for his own benefit. The sentence I have determined as appropriate should be sufficient to ensure, as far as reasonably possible, his rehabilitation, at the same time acting as a punishment of general deterrence. There is no particular reason why a fine should also be imposed.
SLICER J
I have read in draft form the judgment of my brother Crawford J. I agree with both his reasoning and conclusion and have nothing useful to add. I would allow the appeal, set the sentence aside and impose in its place a sentence of six months wholly suspended for a period of two years.
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