R v Amituanai

[1995] QCA 80

[1995] QCA 80

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 524 of 1994.

Brisbane

BeforePincus J.A.

Thomas J.

White J.

[R v. Amituanai]

T H E QUEEN

v.

TIMOTHY BRIAN AMITUANAI

(Applicant)

Judgment delivered : 28/03/1995

Joint reasons delivered by Thomas J and White J.  Separate reasons by Pincus JA.  All concurring as to orders made.

APPEAL DISMISSED

CATCHWORDS:     CRIMINAL LAW - APPEAL AGAINST SENTENCE - grievous bodily harm - one kick to head brain injury - previous good character - sentencing options - whether mitigating circumstances given sufficient weight by trial Judge

Counsel:  Mrs K McGuiness for applicant
  M J Byrne QC for Crown

Solicitors:       Legal Aid Office for applicant
  Director of Prosecution for Crown

Hearing Date:  24 February 1995

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 28/03/95

I have read the reasons of Thomas and White JJ. and agree with their Honours' conclusion.

The danger of a heavy blow to the head, illustrated by the consequences which ensued here, is evident enough;  but the possibility of such consequences may not be present to the minds of young men who are angry and have been drinking alcohol.  A purpose of attaching sanctions to such blows is to increase the chance that a person minded to attack in this way may restrain himself. 

No doubt it often happens that heavy blows which are struck cause no permanent injury.  Here, unfortunately, that was not so;  the victim suffered serious brain damage.

It is the extent of that damage which is the principal 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.  I have noted that the policy involved has been commented upon in a slightly different context in Pettipher (1989) 11 Cr.App.R.(S) 321.

Special considerations may arise where a blow is struck which produces consequences of a kind which are quite beyond the range of reasonable expectation. That is not this case, for here the damage was caused by a kick to the head administered by one skilled in martial arts and either that kick or the consequent fall or both directly brought about a significant head injury;  that was by no means an unforeseeable result.

No-one could read the references which have been furnished on behalf of the applicant without a heightened sense of regret that it is necessary that he go to prison.  But it must be kept in mind that he is not the only one who has to suffer because of this incident.  The applicant may well, having served a period of imprisonment, leave the whole affair largely behind him;  the victim can never do so and his prospects of a happy and useful life are gravely and permanently impaired.

I have noted that, although there was a plea of guilty, the case was at one stage listed for trial.  Nevertheless, considering the extent of the applicant's remorse,  and that although the victim had done absolutely nothing to provoke the attack upon him, the applicant had been injured by another person, the sentence imposed does not appear to me a light one.  But I have come to the conclusion that it is not at such a level as to justify reducing it.  I would dismiss the application.

JOINT REASONS FOR JUDGMENT THOMAS AND WHITE JJ

This is an application for leave to appeal against sentence.  The applicant was convicted on his own plea of guilty in the District Court at Brisbane on 2 December 1994 of one count of doing grievous bodily harm.  He was sentenced that day to a term of imprisonment of three years with a recommendation that he be eligible for release on parole after serving nine months of that sentence. 

The applicant is a 26 year old New Zealander of Samoan decent who, at the time of the offence, had just completed his final examinations for the degree of Public Administration at the University of Queensland.

The applicant and a group of friends had been at the Royal Exchange hotel from early in the afternoon on Friday, 26 November 1993 celebrating the end of exams.  He had consumed a number of beers, but there is no suggestion that he was grossly intoxicated.  At about 12 midnight, closing time, he and his friends, who together made up a group of five, left the hotel and went to premises nearby called Super Chicken in Sherwood Road before walking to a taxi rank located in front of the Woolworths' car park further up the road. 

Another group of young men, also five in number, had left the Royal Exchange hotel and gone to the chicken shop before making their way to the taxi rank at about the same time.  Two people unconnected with these two groups of young men were already waiting at the taxi rank.  Next in line was the group of which the applicant was a member and behind them the group containing the complainant.  A member of the complainant's group, one John Stephens, made a comment to the effect that "the next cab is ours" which comment was directed towards the applicant's group.  Someone in the applicant's group named Mirisich observed "I can feel a bit of trouble brewing here."  There were some mutual remarks exchanged between the members of the two groups and someone from the applicant's group said, in a sarcastic tone, that the complainant's group could have the next cab, but it is clear that it was not seriously intended nor, it would seem, seriously received.

A taxi pulled up and the people at the head of the queue were offered the cab, got into it, and were driven away.  Shortly afterwards another taxi cab arrived and one of the complainant's companions opened the back door of the taxi and attempted to get in.  At the same time the applicant opened the front door of the taxi saying "This is our cab", to which the person getting into the back said "You've got to be joking.  You've said that we could have the cab". 

The applicant grabbed that person by the shirt and pulled him away from the cab saying "No mate", and a struggle then developed between them during which the other person called the applicant a "black cunt".  At about the same time, Stephens struck the applicant a severe blow on the side of the face fracturing the right side of his jaw and damaging a lower right wisdom tooth, which subsequently had to be removed.  Stephens ran off chased by two of the applicant's companions.  The complainant, who remained, was heard to say "No mate, we don't want any hassles.  Just leave it at that." 

The applicant then pursued Stephens up Sherwood Road towards Jephson Street with members of both groups running after them.  The applicant lost Stephens somewhere in the Woolworths car park at the rear of the Westpac Bank while the complainant ran off ahead of his companions and disappeared into the car park.  For about 30 seconds both the complainant and the applicant were lost from sight to the other participants and then a member of the complainant's group named Westwood saw the applicant kick the complainant in the head causing him to fall backwards.  Mirisich, who was with the applicant, described what he saw as "a round‑house kick" twice directed at the complainant, the first missing but the second connecting with his head.  In his record of interview given later that night the applicant maintained that he administered one kick only in the chest area and that the complainant then fell backwards.  The sentence proceeded upon the basis of one kick to the head. The applicant admitted to the police that he had some proficiency in the martial arts.

Upon being struck, the complainant fell backwards hitting his head heavily on the bitumen road surface.  It would seem that it was not generally appreciated immediately just how badly injured he was.  However, fairly quickly it was noted that he was unconscious and breathing in a strange way with a great deal of blood about his head.  Thereupon the confrontation between the two groups eased.  Immediately the applicant gave assistance to the complainant by turning him on his side to the recovery position, taking off his leather jacket and covering the complainant with it.  He immediately expressed regret at what he had done.  When the police arrived at the scene the applicant admitted his actions, apologised and was seen by the police to be visibly shaken and upset and, indeed, began to weep. 

The complainant was taken deeply unconscious to the Royal Brisbane Hospital where was noted to have a large occipital haematoma.  He was intubated and ventilated prior to a head scan which revealed a right front parietal temporal subdural collection of blood up to one centimetre in depth with inferior frontal contusions.  He was taken to theatre to evacuate the haematoma.  The complainant made a very slow recovery, his main problems being a decreased level of consciousness which gradually improved.  By 7 January he was able to walk unassisted and his speech slowly improved.  He was discharged on 12 January to the Princess Alexandra Hospital head unit.

Statements from the complainant, his grandmother and his sister were tendered to the learned sentencing Judge variously dated about the time of the proceedings below.  The complainant stated that he has no memory from just before the assault until after Christmas 1993, and his short term memory is poor.  He has been left with some paralysis down his right side and has difficulty using his hands for activities such as shaving and picking things up.  He has lost his sense of smell, has a black spot in both eyes and his balance is poor.  As at November 1994 he could not drive his car but it seems to be anticipated that he will be able to do so in due course.  He no longer feels physical pain but suffers mental anguish and depression at his physical deficits and consequent dependence upon his parents.  It seems that his mother has given up her employment to care for him.  The complainant obtained an associate diploma in applied science - Animal Production/Horticulture at Dalby Agricultural College and at the time of the assault was employed as a buyer with a company named "Today's Harvest".  He does not expect to return to that work.   He has expressed great bitterness at his plight and towards the applicant.

In his police interview the applicant said that at the time that he kicked the complainant he did not realise that he was not the person who punched him.  That is not correct as he went on to say:

"...It was a fit of rage.  It was all part of my retribution.  It was like I was angry.  I thought at the time that he was part and parcel of the party that was involved in the whole incident and I vented off my frustration with - through him and I did not mean what I have done."

The applicant came to Australia from New Zealand with his mother and siblings in 1981 at the age of 13 years.  His parents were separated.  He completed his schooling in Brisbane where he achieved well academically and in sport.  After he left school he went to Western Samoa and spent some two years living with his father, an accountant.  He completed two years of the degree of Bachelor of Political Science and Public Policy at the University of Wellington in New Zealand and was able to transfer with credit to the University of Queensland when he rejoined his mother in about 1992.  His family is close and involved in church and community activities.  References tendered on his behalf before the learned sentencing Judge from his former University of Queensland lecturer, from an officer with Street Art, from a pastor from the applicant's church, from a community project worker with the Brisbane Samoan Advisory Council and from the Co‑ordinator of the Samoan Polynesian Cultural Group attest to his good character, his active involvement in community affairs, his good employment prospects in the field of public administration or social welfare and his usual non-aggressive conduct.

The applicant pleaded guilty and intimated through his counsel below that he desired to be in a position to compensate the complainant financially for the losses which he has sustained.

A number of cases referred to by counsel demonstrates the wide range of sentencing options which have been utilised in grievous bodily harm cases.  R. v. Foley [1988] 1 Qd.R. 570 was an Attorney's appeal from a sentence imposed of 240 hours community service in respect of two charges, one of grievous bodily harm to one person and the other of assault to another. After closing time at a leagues club an altercation occurred outside the entrance to the club. There were a number of fights but the one that gave rise to the charge against the respondent occurred when he and other men joined in kicking the complainant, (who had been an earlier assailant), when he was on the ground. The respondent admitted delivering one kick to the complainant's head and the learned sentencing Judge dealt with him on that basis. He said that he was satisfied that it was a severe kick but was not prepared to impose the blame for all the kicking and all the injuries sustained by the complainant which were serious. The second offence occurred in the same incident and was not the focus of the appeal. The respondent had made a timely plea of guilty, had no previous convictions for that type of offence and had withdrawn from the company of the undesirable elements with whom he was associating on that evening. Although he had considered imposing a very heavy fine, the learned sentencing Judge came to the conclusion that the respondent's finances should be conserved so that he could pay an award for criminal compensation which would inevitably be made against him. The offender was 21.

Kelly SPJ, with whose reasons Williams and Ryan JJ agreed, observed that it was relevant to consider not only that the attack was cowardly involving kicking the victim about the head when he was on the ground and contributing to his serious injuries, but that it was committed in company, however his Honour was not prepared to say that he was in substantial disagreement with the sentence imposed and dismissed the appeal.

R. v. Laban (C.A. No 200 of 1985, 8 October 1985) was another Attorney's appeal.  The respondent's dog, of which he was particularly fond, was enticed from the respondent's property by the complainant dog catcher for the Gold Coast City Council and placed in the dog catcher's van.  The respondent remonstrated with the complainant and struck him a blow described as "a small blow" with his fist, but it was violent enough to knock the complainant to the ground.  He suffered a broken jaw and a haemorrhage in his brain which formed a clot which later had to be removed.  He suffered temporary vision and it was not clear at the time of the appeal whether his brain damage was likely to be permanent.  The respondent was at once repentant and endeavoured to assist the complainant and went to the police.  He pleaded guilty and was co-operative.  He had no previous history of violence and indeed only one prior minor drug conviction and had been in regular employment.  He was fined $400, in default six months' imprisonment.  On appeal the Chief Justice observed that the circumstances provided no type of defence to the respondent but that they were relevant to punishment.  A factor which he considered relevant was that an application for compensation had been made but had then not been brought to a conclusion.  The Court did not find itself in substantial disagreement with the learned sentencing Judge and dismissed the appeal.

R. v. Brooks (C.A. No 108 of 1990, 19 September 1990) was an appeal against conviction and sentence.  The complainant had gone to the aid of a handicapped person who was beset in the city mall by a group with which the appellant had chosen to associate himself whereupon the appellant head‑butted him, kicked him in the shins and then in the testicles.  The complainant underwent surgical treatment for the latter injury with the ultimate consequence that his fertility was reduced. The evidence available to the sentencing court was that considerable force was required to inflict an injury of that kind in that part of the body.  The appellant was sentenced to imprisonment for three years.  The appellant had a criminal history of no great consequence and was a young man.  The attack was described as a cowardly assault and "mindless violence" by McPherson J (as his Honour then was) and Moynihan J regarded it as the sort of activity which the Court ought to discourage taking place in the city in the circumstances where a person, who was rightly to be regarded as an innocent bystander went to the aid of someone who was being set upon.  The sentence of three years was thought not to be excessive. 

Reference was made to R. v. Roberts (C.A. No 75 of 1986, 26 June 1986), and to R. v. Bulmer (C.A. No 158 of 1986, 3 September 1986).  However we do not think either of these matters has sufficient relevance to the present matter to warrant discussion.

R. v. Collins (C.A. No 328 of 1989, 5 February 1990) was an Attorney's appeal against the imposition of a term of imprisonment of six months' with a recommendation for parole after serving six weeks on a charge of grievous bodily harm.  The matter went to trial.  The respondent's evidence was that he was in an airforceman's bar and, on being approached by the complainant with his fists clenched, by reflex action struck out at the complainant with the glass which he was holding.  The glass broke in the complainant's face causing him to lose the sight of an eye.  The learned sentencing Judge concluded that the jury must have rejected the spur of the moment reflex action explanation by its verdict and sentenced him on the basis that he had had an opportunity to act in a less drastic fashion.  His Honour did accept that the action was largely unpremeditated and that earlier the respondent had been spoken to in an aggressive fashion by the complainant.  The respondent was a young man who had been convicted in the same year of two charges of assault occasioning bodily harm. On appeal the Chief Justice observed, making all due allowance for the circumstances in which the encounter took place, that the learned sentencing Judge had imposed an unduly lenient sentence.  The Court allowed the appeal and ordered that the respondent be sentenced to a term of imprisonment for 18 months and, because of his youth, that he be eligible for parole after serving seven months of that sentence.  McPherson J (as his Honour then was) noted that the sentence imposed appeared to fall well short of penalties commonly imposed in matters of this kind.

The Attorney appealed in R. v. Logan (C.A. No. 310 of 1991, 2 April 1992) against the imposition of a sentence of six months' imprisonment and probation for three years for the offence of grievous bodily harm.  A second offence of assault on a female complainant to which the respondent was sentenced to a concurrent term of one month was also involved in the offending behaviour.  The respondent was aged 19 at sentence and had a previous conviction of assault occasioning bodily harm on a female.  The circumstances of the offences under appeal were that a fight commenced outside a nightclub in the early hours of the morning between the male complainant and the respondent concerning the female complainant.  On appeal the Chief Justice observed that an exchange had occurred between the male complainant and the respondent which might be regarded as provocation.  In the course of the fight the respondent got the better of the male complainant and knocked him to the ground and there kicked him causing severe injuries.  The complainant suffered a fractured skull in the region of the occipital bone at the back of the head and sustained a rupture of the right ear canal leaving him with permanent partial deafness.  He also suffered lacerations and multiple contusions to his face and a possible fracture of the nose.  The female complainant suffered a relatively minor bruising injury when she attempted to intervene to protect the male complainant.  The Chief Justice, with whom the other members of the Court were in substantial agreement, considered that the learned sentencing Judge was unduly influenced by the youth of the respondent, and did not take sufficiently into account the serious features of the assault together with the respondent's previous relevant conviction for assault.  The Court of Appeal allowed the Attorney's appeal and ordered that the respondent be sentenced to a term of imprisonment of 2½ years recommending that he be considered eligible for parole after serving one year.

Although counsel did not refer to R. v. Davis (C.A. No. 336 of 1990, 28 February 1991) in this application, the Court in Logan considered that it was indicative of an appropriate approach to sentences in grievous bodily harm cases.  In that case the respondent aged 17, pleaded guilty to doing grievous bodily harm on 2 March 1990 and to an assault occasioning bodily harm on 4 March 1990.  In respect of the first offence he was ordered to carry out 240 hours unpaid community service and in respect of the second, he was placed on probation for three years with special conditions that he not consume alcohol and that he stay away from nightclubs.  The Attorney appealed.  The respondent to the appeal had prior convictions for stealing, receiving, for disorderly conduct and for dangerous driving, and each of those convictions had attracted a fine.  The offences under consideration were committed in a nightclub in Innisfail.  The respondent ought not to have been on those premises because of his age.  In the course of the evening he assaulted a man who was dancing with his former girlfriend and mother of his child.  He claimed that the complainant was being too familiar with her but she had not sought any assistance from the respondent and the learned sentencing Judge had concluded that the assault was inspired by jealousy.  The respondent punched the complainant in the face with a closed fist delivering two or three blows, fracturing the floor of the complainant's left eye socket leaving him with permanent double vision.  The respondent was said to be sober at the time of that assault.  Some three weeks later he was in the same nightclub and became involved in breaking up a fight.  In the course of so doing he punched a man in the head breaking four teeth and fracturing his nose which required corrective surgery.  The respondent was said to be drunk on that occasion.             The learned sentencing Judge had adopted a sympathetic attitude towards the respondent in view of his age and mentioned the high spirits of young persons affected by alcohol.  On appeal de Jersey J noted the serious nature of the complainant's injuries and their permanent consequence to the first victim, that the offences occurred over a three week period and that the respondent had a criminal record, the most recent offence having been before a court two weeks before committing the first offence.  His Honour noted the need to deter such cowardly crimes.  The Court allowed the appeal and ordered that the respondent be imprisoned for 2½ years in respect of each offence to be served concurrently and in view of the sentencing Judge's opinion that the respondent would benefit from counselling and supervision, recommended that he be eligible for parole after serving nine months of each term. 

The final case to which the court was referred was that of The Queen v. Mlinarek and Ross (C.A. No 192 and 194 of 1992, 27 August 1992).  Sentencing took place after the jury had returned a verdict against Ross, Mlinarek having pleaded guilty.  It appears that in the early hours of the morning a group of five people including the complainant and Mlinarek walked onto the beach.  The complainant and Mlinarek took their shirts off and started to fight.  An independent witness observed the complainant on the ground being held by Ross while Mlinarek struck the complainant's face a number of times.  When Ross finally released the complainant, Mlinarek stepped in and kicked him four or five times in the upper chest and head area.  He then retrieved his own shirt and washed his hands at a tap while Ross went through the complainant's pockets.  They both then walked away.  The complainant suffered serious brain damage.  He was in a coma for 24 hours and in hospital for two weeks.  His jaw was fractured and required surgical repair.  His short term memory had been adversely affected and he was unable to continue with his work in the export field.  His personality was said to have changed in that he lacked motivation and energy; his vision was impaired and his neurologist was pessimistic about the degree of his eventual recovery.  Mlinarek was sentenced to four years' imprisonment with a recommendation for parole after 18 months and Ross was sentenced to three years' imprisonment with a recommendation for parole after 12 months.  There was some suggestion in statements made by Mlinarek to the police that the complainant had been "hassling" him at the front of a night club and had followed him to the beach.  Although it was submitted on behalf of Ross that his role was minimal, the Court of Appeal concluded that although he was aiding the principal fighter it was a significant role in the middle stages of the incident.  At the time of sentence Mlinarek was 22 with a previous minor drug conviction and Ross was aged 23 with convictions for stealing, possession and vagrancy. The learned sentencing Judge noted Mlinarek's early plea, his previous non‑criminal conduct and that the offence was out of character, his unfortunate childhood, his hard work to qualify himself and the numbers of favourable references tendered on his behalf. He noted some provocation by the complainant which had led to the incident and his co‑operation with the police which gave rise to the early parole recommendation.

The Court of Appeal concluded that the head sentence in each case was well within a proper range for a conviction of grievous bodily harm resulting from sustained violence producing consequences as serious as had occurred in that case. 

We find it impossible to reconcile all the above decisions.  In particular it is difficult to see how the non-custodial sentences in Laban and Foley are reconcilable with what seems to be a more consistent sentencing pattern in Collins, Logan, Davis, Brooks, Mlinarek and Ross.  The mean average sentence in the last mentioned six cases is a little over two-and-a-half years imprisonment with a recommendation for parole after a little over twelve months.

The present applicant has more impressive antecedents than any of those offenders, and he has very strong circumstances of mitigation including immediate remorse and care for the victim.  On the other hand in none of the six mentioned cases were the effects upon the victim as destructive and devastating of those upon the present victim.

There can be no doubt that the application presently before the Court is a tragic case.  The complainant has suffered a head injury, the consequences of which have blighted his life and caused loss and grief to his family.  There is no suggestion that he engaged in provocative words or behaviour at the taxi cab rank.  He was in the group which contained the original aggressor and thereby became the object of the applicant's anger. 

The applicant's life too has been irrevocably damaged by the events of that night.  He was at the end of his university studies and could reasonably have been looking forward to a worthwhile career and to making a valuable contribution to his own people and his adopted community in Brisbane.  He had been grossly provoked by Stephens and was, no doubt, in considerable pain from his broken jaw.  He was angry and gave expression to that anger by kicking the complainant whom he knew to have done him no harm.

This application has caused us some concern.  There is a need to deter loutish brawling in the streets by intoxicated young men, the consequences of which have been so serious for the complainant who had done no wrong, and to express disapproval at the use in this way of the fighting skills acquired by the applicant which, had he been capable of sober reflection, he must have known had an obvious potential for doing serious harm.  On the other hand there is little benefit in imposing a crushing sentence upon one whose life had been relatively blameless and who has a contribution to make to the community.

Whilst it would have been possible for a sentencing judge to have given a greater effect to the mitigating factors and antecedents, we have concluded that it would not be right to interfere with the sentence.  It lies well within the limits of exercise of a sound discretion.

Since preparing these reasons we have noted the proposed reasons of Pincus JA and agree with his Honour's analysis, including the observation that generally speaking when one inflicts serious violence to the head of another the risk of catastrophic results must be shared by the offender as well as the victim.  An appropriate sentence must be one that will discourage and deter such resorts to violence.  It must also bear in mind that vindication is one of the many functions of the sentencing process, and it is an evident matter in the present case.  Unless courts are seen to inflict real punishment, victims and their families may be tempted to exact their own form of revenge.  That is not to say that cases may not arise in which this factor will be outweighed by the benefits of rehabilitation.  However we have concluded in all the circumstances of this unfortunate case that this court should not interfere with the sentence.  The application should be refused.