R v Barber - [2005] SASC 378

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v BARBER
Judgment of The Court of Criminal Appeal
(The Honourable Justice Besanko, The Honourable Justice Vanstone and The Honourable Justice Layton)
30 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence - causing grievous bodily harm with intent to do grievous bodily harm - appellant sentenced to 15 years imprisonment with non-parole period of 9 years - whether sentence manifestly excessive - appeal dismissed.
Criminal Law Consolidation Act 1935, s 23, referred to.
Cameron v The Queen (2002) 209 CLR 339, considered.

R v BARBER
[2005] SASC 378
Court of Criminal Appeal: Besanko, Vanstone and Layton JJ

BESANKO J: In my opinion this appeal should be dismissed. I agree with the reasons for judgment of Vanstone J.
VANSTONE J: Christopher Michael Barber appeals against his sentence for causing grievous bodily harm with intent to do grievous bodily harm. No particular error is alleged in the sentencing process. Rather, the complaint is simply that the sentence is manifestly excessive.
The sentence imposed was 15 years imprisonment with a non-parole period of 9 years. It followed upon a trial in which the jury acquitted of attempted murder and convicted of the lesser alternative. I say “lesser”, but in fact both offences carry a maximum of life imprisonment. No case was presented at trial by the defence.
There is no challenge to the finding made by the learned sentencing Judge that this crime was at the higher end of the range of offences of its type. That finding was plainly open. Even so, it is argued that the sentence is more severe than many sentences for manslaughter, as well as being the longest imposed for this offence, according to counsel’s researches.
The facts of the matter are certainly grave. The victim was the appellant’s de facto wife of some four years and mother of two of his children. Their relationship was marked by excessive drinking of liquor and violence. The offence occurred at the home they shared with those children and with the victim’s older children. On the evening of 30 March 2004 both the appellant and victim were at home, drinking and smoking cannabis. They argued and then a fight erupted. The victim was abusive to the appellant. He pushed her hard against an outside wall of the house. She fell and hit her head. That occurred in front of two of the victim’s children. Crying, they ran across the road to a neighbour’s home and knocked on the door. The neighbours looked back to the house and observed that the appellant was kicking the victim to her head as she lay on the ground. The victim’s body was said to have lifted with the force of each kick. One neighbour said the kicks sounded like a car door shutting. The appellant took the unconscious woman inside and she was found, in that state, by police. She was later airlifted to the Royal Adelaide Hospital in a critical condition, having severe head injuries. She was finally discharged from rehabilitation into the care of her mother, almost a year after the offence. She has permanent brain damage. She is not expected to be able to live independently again. She is confined to a wheelchair and it is said that she does not recognise her two younger children.
The appellant is 29 years of age and an indigenous Australian. At the time of the offence he was subject to a domestic violence order imposed after conviction for an assault committed upon the victim. The offence also occurred against the background of further convictions for assault on other persons, one of them a woman, as well as offences of dishonesty.
The sentencing Judge had the assistance of a pre-sentence report. The Judge concluded from that report and other material that the appellant had failed to acknowledge full responsibility for what he had done.
The Judge acceded to a submission by defence counsel that he should give credit for a plea of guilty to causing grievous bodily harm (without specific intent) entered at the commencement of the trial. That is an offence against s 23 Criminal Law Consolidation Act 1935 and carries a maximum penalty of five years. The plea was entered before the jury but not accepted by the prosecutor. The Judge said that he reduced the head sentence by two years on account of that plea, the appellant’s “attempt to minimise the impact of the trial on others” and the appellant’s “contrition and remorse for the consequences of his conduct”.
I have some reservations about whether in these circumstances it was appropriate to make a reduction to that degree, or at all, on account of the appellant’s plea. It is in my mind doubtful whether that eleventh hour plea could properly be viewed as indicative of remorse, acceptance of responsibility or a demonstration of a willingness to facilitate the course of justice. (See Cameron v The Queen (2002) 209 CLR 339 per Gaudron, Gummow and Callinan JJ at 343.) That is so especially given the appellant’s statements to the writer of the pre-sentence report and in light of the fact that what followed was a seven day trial in which, not only was the appellant’s intention to cause grievous bodily harm in issue, but also, to an extent, was his conduct. The entry of the plea could be seen as amounting to admissions of having inflicted the injuries, of their grievous nature and as to unlawfulness. The plea resulted in the evidence of some witnesses being presented by way of the reading of their statements, saving them the need to appear. But in the circumstances of the matter the appellant could hardly have brought any of those elements into dispute. A further consideration in this regard is that the appellant offered no positive defence at trial. He simply put the prosecution to proof. In the circumstances it might be that the allowance made by the Judge was, at the least, generous. Nevertheless, the matter was not directly raised on this appeal and, accordingly, was not argued before us. In these circumstances I do not consider it appropriate to consider it further.
The head sentence of 15 years imposed by the Judge was certainly a severe one. Nevertheless the crime was, as the Judge described it, savage. There were really no circumstances of mitigation. In my mind the sentence was within the range of sentences appropriate to this crime. It cannot be overlooked that but for the availability of expert medical attention, the appellant would have faced a murder charge, and, on the verdict delivered by the jury, would have been guilty of it. On any view the non-parole period was a moderate one.
I would dismiss the appeal.
LAYTON J: I agree that the appeal should be dismissed and with the reasons given by Vanstone J.