Hayes v The Queen
[2003] WASCA 230
•25 SEPTEMBER 2003
HAYES -v- THE QUEEN [2003] WASCA 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 230 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:20/2003 | 12 SEPTEMBER 2003 | |
| Coram: | MURRAY J PARKER J MILLER J | 25/09/03 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | JEREMY NIGEL HAYES THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Grievous bodily harm Very serious injury Previous offences of violence Dispute on application for leave as to facts of case Whether sentencing Judge erred in assessment of facts Allegation that victim provoked commission of offence Sentence of 5 years imprisonment upheld |
Legislation: | Nil |
Case References: | Langridge v The Queen (1996) 17 WAR 346 R v Olbrich (1999) 199 CLR 270 Gallegos v R [1999] WASCA 191 Lowndes v R (1999) 195 CLR 665 Munmeri v R, unreported; CCA SCt of WA; Library No 8746; 1 March 1991 R v Hodges [1999] WASCA 278 R v Kerr, unreported; CCA SCt of WA; Library No 970402; 15 August 1997 R v Rowe (1996) 89 A Crim R 467 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HAYES -v- THE QUEEN [2003] WASCA 230 CORAM : MURRAY J
- PARKER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Grievous bodily harm - Very serious injury - Previous offences of violence - Dispute on application for leave as to facts of case - Whether sentencing Judge erred in assessment of facts - Allegation that victim provoked commission of offence - Sentence of 5 years imprisonment upheld
Legislation:
Nil
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Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr P J Urquhart & Mr S F Rafferty
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Langridge v The Queen (1996) 17 WAR 346
R v Olbrich (1999) 199 CLR 270
Case(s) also cited:
Gallegos v R [1999] WASCA 191
Lowndes v R (1999) 195 CLR 665
Munmeri v R, unreported; CCA SCt of WA; Library No 8746; 1 March 1991
R v Hodges [1999] WASCA 278
R v Kerr, unreported; CCA SCt of WA; Library No 970402; 15 August 1997
R v Rowe (1996) 89 A Crim R 467
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1 JUDGMENT OF THE COURT: This application for leave to appeal was presented by the applicant in person. He was, however, represented by very experienced counsel at the hearing at first instance in the District Court. He was charged with doing grievous bodily harm to his wife. Under the Criminal Code, s 297, in circumstances such as this case, that offence is punishable by 10 years imprisonment. The Chief Judge of the District Court, Hammond CJDC, sentenced the applicant to 5 years imprisonment with eligibility for parole. He now seeks leave to appeal against that sentence, asserting in the notice of application that the sentence should be reduced to one of 3 years imprisonment.
2 Although counsel settled the original grounds of application, they have been abandoned. On 27 May 2003, Barker J gave the applicant leave to substitute his own grounds. It is convenient to deal immediately with the first of them, which arises in this way. The applicant first appeared in the District Court and pleaded guilty on 28 January 2003. During the course of the sentencing proceedings which followed there was reference to the applicant's criminal history. When the applicant committed this offence and at the time that he came before the District Court he was a 50-year-old man. His relevant convictions were all of offences committed against his wife. They were common assault in May 1992, common assault in March 2000, (for which a community based order was made), and common assault again in October 2000, for which he was sentenced to 4 months imprisonment suspended for 18 months. On the same date he was convicted of assault occasioning bodily harm and a like sentence was imposed.
3 He committed the offence which brought him before the District Court some 2 years later on 22 October 2002. When he was first brought before the Court of Petty Sessions there were some delays and it appears that the prosecution did not immediately have available the necessary papers. The plea when made in the Court of Petty Sessions on 13 December 2002 was accepted to be part of the process of expedited committal provided in the Justices Act 1902 (WA) – the fast track.
4 On that date the applicant was also before the Court charged with another offence of assault occasioning bodily harm, again upon his wife, an offence committed on 15 September 2002. For that offence, on 13 December 2002, the date of his committal to the District Court for the offence of grievous bodily harm, the applicant was sentenced to 5 months imprisonment backdated to 22 October 2002, the day upon which he had been taken into custody and since when he had been remanded in custody.
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- That sentence therefore allowed for all the time spent in custody on remand to that point.
5 The applicant told us that what Hammond CJDC was told were the facts of the assault occasioning bodily harm was incorrect. He says it contained aggravating material which was wrong and which he had had deleted from the statement of facts during the sentencing proceedings in the Court of Petty Sessions on 13 December. We note that the facts said to be wrong do not substantially detract from the seriousness of that offence of assault occasioning bodily harm, but, as will appear, it is perhaps significant that at the Court of Petty Sessions the applicant negotiated the removal of those facts with the prosecuting police officer before confirming what he accepted the facts to be for sentencing purposes. He tells us that, having pleaded guilty and heard the facts read, he objected to their accuracy. There was an adjournment. He and his wife discussed the matter with the prosecuting officer, amendments were made to the statement of facts which were then stated to the Court afresh before sentence was passed.
6 It is sufficient for present purposes to note that the applicant had gone to his wife's home during a period of separation from her. She and her four children were present. The applicant was denied entry, but he forced his way in, took hold of his wife by her hair and threw her into a wall, cutting her and causing bruising and swelling to her forehead. He shouted at the children to go to their rooms, before again assaulting his wife by pushing her into a bookcase and slapping her face. They then went to a bedroom where they argued before the applicant pushed his wife onto the bed, grabbed her by the hair and dragged her to the floor. When she stood up he took hold of her with both hands around her neck and squeezed. The statement of facts noted that the applicant appeared to be heavily intoxicated when the police arrived. The Court was told, as is the fact, that he is a big man of heavy, solid build, whereas his wife is a smaller, slightly built woman who was, at the time, 6 weeks pregnant (there was no mention that that was the case when the grievous bodily harm offence was committed on 22 October 2002).
7 We return to the point taken by the first ground. The term of 5 months imprisonment imposed on 13 December 2002 was still being served when the applicant appeared before the Chief Judge on 28 January 2003. With remissions, that term expired on 30 January 2003. It is clear from the exchange between his Honour and defence counsel that the Judge intended to backdate the sentence to the date of the expiry of the previous term. His Honour overlooked doing so when he imposed the
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- sentence of 5 years imprisonment on 5 February. There is therefore a period of some 5 days during which the applicant was in custody on remand, which has not been allowed for in the sentence imposed.
8 It is trite to observe that this Court will not interfere with a sentence unless it appears that by reason of some error in principle, or for some other reason, the sentencing discretion his miscarried to the extent that the sentence imposed can be seen to be manifestly excessive or inadequate. If the Court so concludes and thinks that a different sentence should have been passed, leave to appeal will be granted and the appeal allowed to enable the applicant to be resentenced. We would not allow the appeal merely for the purpose of making the very minor adjustment of backdating the term from 5 February to 31 January.
9 The second ground of the application complains that in relation to the grievous bodily harm charge, the applicant was not privy to the information contained in the depositions of the witnesses or the statement of material facts provided by the police when he pleaded guilty before the Court of Petty Sessions, participated in the process of expedited committal and repeated his plea of guilty in the District Court. He says that the facts stated to Hammond CJDC by the prosecutor took him by surprise and in material respects they were wrong. They presented the case against him in a far worse light than it ought to have borne and led the sentencing Judge into error.
10 In a case such as this, which could not be dealt with summarily, by s 100 of the Justices Act, at an early stage of the defendant's appearances in the Court of Petty Sessions the case is adjourned so that the prosecution may file with the Clerk of Petty Sessions and serve upon the defendant a statement of material facts, any confessional material emanating from the defendant and notice of any videotape recording made by the defendant. The appeal books do not contain this statement of the material facts, but it is by that document that the defendant is informed of the nature of the prosecution case.
11 When the proceedings before the Court of Petty Sessions are next brought on, the defendant is given the opportunity to plead: s 101, and if he pleads guilty he is committed for sentence. This is the process of expedited committal and at this stage there may be no documents supporting the prosecution case other than the statement of facts to which s 100 refers. Of course, it goes without saying that although it may be upon the basis of the original statement of material facts that the plea of guilty is made before the Court of Petty Sessions, the document's purpose
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- is served once it provides that information and the plea of guilty is not made to a specific set of facts, but to the charge formulated in the complaint.
12 In this case, a more extensive prosecution brief was provided. It contained a statement of material facts dated 27 December 2002 and therefore prepared after the applicant was committed for sentence. The brief also contained the written statement of Mrs Hayes, dated 7 November 2002, and apparently signed by her shortly after she was discharged from hospital. The document is not particularly informative. It refers to an argument between the two of them and her lack of memory of the details of the attack upon her, as a result of which she suffered grievous bodily harm. She says only that she recalled at one stage being on her back with the applicant above her and "his foot was coming down on top of me. I remember feeling his foot hitting me in the middle of my stomach. The next thing that I remember I was in the bedroom."
13 The index to the brief says that it contains, in handwritten and typed form, statements by two of Mrs Hayes' children, Elley and James. The material in the appeal books contains only an unsigned, typed form of Elley's statement. Mrs Hayes says James and Elley are two of her five children, aged 12 and 10 respectively. They are stepchildren of the applicant. The only one of Mrs Hayes' children of which he is the father is the youngest, who was 3½ when Mrs Hayes made her statement. Four of her five children (not including the oldest child) were living with the applicant and Mrs Hayes.
14 Elley's statement is again not particularly informative. She talks of being in bed and hearing shouting and argument between the two adults. She and her younger sister, with whom she shared a room, were obviously worried. The 3½-year-old came in and spoke to them, as a result of which all the children went out onto the landing of the stairs. Elley's statement says that she saw her mother lying on pillows on the lounge room floor, shaking, with the applicant standing over her, with one foot "over mum's tummy, ready to step on her." She then says that the applicant looked up and saw them, put his foot down and picked Mrs Hayes up. The children ran back to their rooms.
15 James' statement is provided in typed and handwritten form and in that form it is dated 23 October 2002. He describes going to the stairs with the other children. He says he could see into the lounge room and he continues:
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- "I could see Jeremy was standing up. Mum was laying on her back, half on some cushions. I could see that Jeremy was stepping on mum's stomach. Jeremy was banging his foot onto mum's stomach really hard. Mum was groaning and trying to get up. Jeremy wasn't saying anything. Jeremy stopped and turned around and saw all of us standing at the top of the stairs. Jeremy then started to act all normal and helped mum up."
16 The brief contains statements by investigating police officers, who responded to the 000 telephone call made by the complainant, which brought police and ambulance to the house. The applicant provided little information as to what had occurred. Their evidence would suggest that he was intoxicated when spoken to. The statement of material facts adds that he was interviewed on video on 23 October 2002 and made no admissions.
17 The brief contains medical reports. The first is by a doctor who was on duty at the emergency department of Swan Districts Hospital when Mrs Hayes was brought to the hospital in the early hours of the morning of 23 October 2002. She was diagnosed as having suffered severe abdominal trauma. Her condition was thought to be serious. It was thought probable that she was bleeding internally. Her life was in danger. She was resuscitated and taken from the Swan Districts Hospital to Royal Perth Hospital by ambulance where the surgical registrar, Dr Edyvane, reported that she was admitted, the internal bleeding was confirmed and emergency surgery was undertaken. A complete division of the pancreas was found and there had been substantial bleeding into the abdominal cavity. The operation to repair the pancreas took some 4 hours. Dr Edyvane expressed the opinion:
"There is no doubt that this assault and the damage inflicted upon Mrs Hayes was life-threatening. Had she not sought emergency medical attention she would have lost her life, either from blood loss in the short term (hours – days), or from serious complications of severe pancreatitis (days – weeks)."
18 As we have said, the applicant complains that he saw none of this material before he pleaded guilty in the District Court. There is nothing from his solicitor to confirm that that is the case, but he was represented throughout and so his solicitor and counsel would have the opportunity to determine if the factual material provided by the prosecution was substantially accurate, having regard to the instructions of the applicant. The facts of the case for sentencing purposes are those stated aloud to the
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- Court by the Crown after the plea of guilty is entered: Criminal Code, s 617A.
19 In this case, that statement of facts was quite evidently taken from the statement of material facts provided as part of the prosecution brief. No part of the statement of facts is unsupported by the other evidence contained in that brief. None of it was put in issue by defence counsel. Had that been done, any facts of an aggravating nature relied upon by the Crown but contested by the applicant would have to be proved, on a trial of the issue in question, beyond reasonable doubt: Langridge v The Queen (1996) 17 WAR 346; R v Olbrich (1999) 199 CLR 270. However, no point of that kind was taken (as might have been expected from the applicant's earlier behaviour in the Court of Petty Sessions) and in our opinion Hammond CJDC was entitled to make his factual findings about the case, as his Honour did, on the basis of the statement of material facts made orally by the Crown prosecutor and supported by the written material placed before the Court.
20 The applicant says, in essence, that the matter was dealt with as having a severity which was entirely greater than the true facts merited. He argues that in passing sentence his Honour failed to give proper weight to his wife's provocation which he says is to be found in her refusal to stop arguing with him, no doubt, he says, because of her intoxicated condition, and in her behaviour earlier in subjecting him to what the applicant describes as "verbal and physical abuse", including at his business premises.
21 He also says that there was, in truth, no repeated stamping on his wife and that the offence was not committed in front of the children; nor he says did he behave callously towards her after the event, leaving her to fend for herself despite the severity of her injuries.
22 As to the question of repeated stamping on his wife's abdomen, he says that he kicked her once, stamped on her once and then saw the children as he lifted his foot. He immediately desisted and left the room. He says that nothing more could have been seen by the children. We have referred to Elley's statement, but even that would not accommodate the applicant's attempts to minimise the nature of the physical altercation between him and his wife. She talks of hearing noises of argument and thumping sounds. Certainly the statement made by James would not support the applicant's version of the events now offered for the first time to this Court. No doubt, however, it was the fact that the applicant
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- observed the presence of the children which caused him to cease his attack.
23 We were disturbed to note that Mrs Hayes, who continues since the applicant was sentenced to support him, has apparently, after the applicant was sentenced, asked the children to provide her with their accounts of what they had seen. She obtained two brief typewritten statements, one from Elley and one from James, and got both children to sign them. Given the ages of the children, we think this was quite inappropriate, although Mrs Hayes allegedly says, in an unsigned, typewritten document dated 24 February 2003 with which the children's statements were provided, that she made no suggestion to either child as to what was to be said and merely asked them "to say how it was, in their own words." Neither child, in these documents, provides the detail in the statements taken by investigating police.
24 As to any assistance which the applicant might have rendered to Mrs Hayes or any concern which he might have had for her, we note that Mrs Hayes in her statement said that after the incident, in her bedroom, with the applicant in bed, she was in agony. She asked the applicant to take her to the doctor, but he said:
"There's nothing wrong with you. You've drunk too much. Go to the doctor in the morning."
25 The applicant says he thought this was the problem and when his wife said she felt that she might be ill, he brought a pot from the kitchen for her to vomit in, returned to bed and fell asleep. She managed to get downstairs where she appears to have lost consciousness on at least one occasion before she managed to make the emergency telephone call. The police officers notified of the emergency were at a local police station. They were quickly at the house and arrived there just after 11.30 pm. While Mrs Hayes was being attended to by ambulance officers, the police officers went to the main bedroom where they found the applicant so heavily asleep that they were unable to wake him, even by shaking him. Only after Mrs Hayes had been taken by ambulance from the house was one of the constables able to wake the applicant.
26 He says that the emergency call was made shortly after 11 pm, by which time he had been asleep for some 2 hours. He was not behaving callously, he says, because he genuinely thought his wife was ill as a result of the alcohol she had consumed. He adds that he could not have driven her anywhere in any event, because of his state of intoxication.
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27 As we have said, the findings of fact made by Hammond CJDC were amply supported by the evidence before him. His Honour described the assault as brutal and he found that it involved "stomping on the complainant's lower abdomen while she was lying on the floor." On any view of the facts there was evidence to support that conclusion. Most importantly, his Honour found that the nature of the injury inflicted by the applicant upon the complainant was life-threatening. She would have died had she not been able to obtain emergency hospital treatment. His Honour accepted that there had been a heated discussion to which Mrs Hayes had contributed, as well as had the applicant. It was obviously correct that when he attacked her physically there was noise and shouting. Elley, in her statement, says that she heard her mother pleading for him to stop. It was certainly appropriate that his Honour considered it to be a circumstance of aggravation that the assault was carried out in the presence, if not at all times in the sight, of the children.
28 His Honour was correct on any version of the facts to say that the applicant behaved callously towards his wife, "whereby the severely injured woman was left to fend for herself". Even on his version of the events, after providing her with a receptacle in which to vomit, he went so deeply asleep that not even two police officers could wake him.
29 His Honour dealt appropriately, in our opinion, with the fact that he had been informed that Mrs Hayes had forgiven the applicant his behaviour and sought a non-custodial disposition so that he might return to her and they might continue their marriage. His Honour was not persuaded that this was a mitigating factor and he was undoubtedly correct to take that view.
30 His Honour is not said to have overlooked any of the personal circumstances of the applicant about which he was informed. His Honour paid appropriate attention to the record of the applicant and noted that in all of the assault cases, the victim was his wife. The offences, his Honour said, were increasing in seriousness and the penalties so far applied had had no effect in deterring the applicant. The Judge described the record as a "truly appalling record of violence against his partner". The early plea of guilty was the only significant mitigation available to the applicant. His Honour on that account reduced by 30 per cent the sentence that he would otherwise have imposed. That was a generous discount.
31 The sentencing Judge had available a pre-sentence report and psychological report. Both documents attributed his offending behaviour to his over-consumption of alcohol and the volatile nature of his domestic
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- situation. He expressed remorse and a growing understanding that if he wished to preserve his marriage and stop his offending behaviour he must cease the excessive consumption of alcohol and continue a process of counselling concerned to amend his behaviour. He placed before us evidence that he had, since being sentenced, undertaken in prison a program offered by the authorities entitled "Building Better Relationships". It appears that he has made some progress and it is recommended that he continue to take advantage of professional services "to improve the quality of his family relationships."
32 However that may be, we were concerned that the applicant did not appear to be truly contrite for his behaviour. He continued, in presenting his application, to attempt to minimise the seriousness of the offence and to shift, to some degree, the blame to the victim by his reliance upon what he described as provocation, behaviour of his wife which could, in truth, justify no degree of physical violence towards her.
33 Importantly, however, it seems to us that the primary consideration in the sentencing process was the seriousness of the offence. No matter how the grievous bodily harm was inflicted it was, in all the circumstances, serious in the extreme. Severe punishment was the appropriate response by the Court proportionate to the seriousness of the offence, for the purpose not only of deterring the applicant from future such offences, but for the purpose of deterring others who, under the cloak of a domestic situation, might be tempted to behave towards an annoying partner in a violent manner.
34 In our opinion, not only can it not be said that the sentence of 5 years imprisonment was manifestly excessive it was, in all the circumstances, a well-justified sentence. No ground exists for its reduction. We refuse the application for leave to appeal.
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