R v Chapman

[1993] QCA 209

IN THE COURT OF APPEAL [1993] QCA 209

SUPREME COURT OF QUEENSLAND

C.A. No. 65 of 1993

Brisbane

[R. v. Chapman]

T H E Q U E E N

- and -

STEPHEN JOHN CHAPMAN

(Applicant)

PINCUS J.A. DAVIES J.A.

Judgment delivered 09/06/1993
REASONS FOR JUDGMENT - THE COURT

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED. DIRECT THAT REASONS FOR JUDGMENT OF THIS COURT BE FORWARDED BY THE REGISTRAR TO THE QUEENSLAND COMMUNITY CORRECTIONS BOARD DRAWING ATTENTION TO THE FINAL PARAGRAPH THEREOF.

CATCHWORDS:	CRIMINAL LAW - SENTENCE - Applicant sentenced to 14 years for robbery in company and seven years for grievous bodily harm, cumulative on two and a half years for an assault occasioning bodily harm in company that occurred seven months earlier - individual sentences not excessive given prior criminal record and vicious and cowardly nature of attacks - whether entitled to make sentences for second and third offences cumulative on first - few connecting factors between first offence and later offences
Counsel:	P. Callaghan for the Respondent P. Alcorn for the Applicant
Solicitors:	Director of Prosecutions for the Respondent Legal Aid Office for the Applicant
Hearing Date(s):	5 April 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 65 of 1993

Brisbane
Before Mr Justice Pincus

Mr Justice Davies

[R. v. Chapman]

T H E Q U E E N

- v -

STEPHEN JOHN CHAPMAN

(Applicant)

REASONS FOR JUDGMENT - THE COURT

J udgment delivered 09/06/1993

The abovenamed applicant was convicted on his own plea on 8 January 1993 of three offences. The first was assault occasioning bodily harm in company on or about 27 September 1991. The second and third were robbery in company and grievous bodily harm, both on 30 April 1992. On 24 March 1993 he was sentenced to two and a half years' imprisonment on the first of those offences, 14 years' imprisonment on the second, and seven years' imprisonment on the third, the terms of imprisonment in respect of each of the second and third offences being cumulative on that imposed on the first offence. He was thus sentenced to an effective term of 16½ years.

At the time of the above offences the applicant was 23 years of age and was 24 by the time of sentence. He had an extensive criminal history dating from 1986, including a number for offences involving dishonesty and, more importantly, several involving actual violence. Indeed, counsel for the respondent pointed out that a series of offences which the applicant committed in 1986 involved, like the offences here, attacks to the heads of his victims. The remarkably consistent history of this sort of thuggery, on the part of the applicant, appears from the reasons of the Chief Justice on the occasion of the applicant's sentencing on 11 February 1987 (C.A. No. 141 of 1986).

The first and third of the offences in this case involved vicious and cowardly attacks. As to the first, the applicant and a man named Logan, who also had a record for offences of this kind, were observed by police in the Brunswick Mall at about 12.40 a.m. repeatedly kicking the face of the complainant, who was lying on the ground. They were chased and subsequently apprehended. The applicant's co-offender, who had a slightly worse criminal history than the applicant, had, by the time of imposition of the above sentences, been sentenced to three years' imprisonment with a recommendation for parole after four months.

We do not think that the sentence of two and a half years imposed on the applicant for this offence was excessive. Indeed, Mr Alcorn, who appeared for the applicant, did not assert that it was. Nor did he assert that the sentences of 14 years' imprisonment imposed for the robbery in company, or the seven years imprisonment imposed for the grievous bodily harm, were excessive. His complaint was that the totality of the sentences was nevertheless excessive.

On the day of the second and third offences the complainant, a 23 year old self-employed boatbuilder, was in possession of $2,000 in cash, which he had borrowed to purchase a boat on the following day. On his way to work that evening he stopped at Jimmys on the Mall in Queen Street near its intersection with Albert Street to buy dinner. Unfortunately for him, he opened his wallet in front of the applicant and his co-accused, Bailey.

At the applicant's instigation he and Bailey then followed the complainant to a boat on which he was working which was then moored under the Riverside Expressway to the east of the Victoria Bridge. When the complainant was alone in the boat the applicant and his co-offender boarded the boat and inflicted severe injuries to the complainant's head, apparently with a rock later found at the scene covered in blood. The applicant took the leading part in the bashing of the complainant.

The injuries inflicted to the complainant were severe. They included depressed skull fractures, an acute right subdural haematoma with an underlying right parietal intracerebral haematoma, and fractures to his cheekbone, jaw and nose. He was left unconscious and bleeding and was in a coma for 10 days. As a result of his injuries, he has decreased senses of smell and taste, decreased movement of his left hand, slight memory problems, weakness of his right leg, a cosmetic deformity of the left orbit, mood changes, fatigue and loss of a tooth.

This callous crime was planned by the applicant and his co- accused and, though his Honour gave him credit for some remorse by admitting to the offences, although initially denying them, there is no evidence of remorse in his conduct immediately after the robbery, during which he lavishly spent the substantial proceeds of his crime.

One could hardly imagine a more serious example of the combined crimes of robbery in company and grievous bodily harm. Though these were, of course, separate offences for which separate terms of imprisonment were imposed, the nature of the conduct in each affects the sentence imposed in the other, the offences being so closely interrelated. As we have said, Mr Alcorn, who appeared for the applicant, did not suggest that the sentences imposed were excessive. The second is a heavy sentence, but the applicant has shown himself to constitute a real danger to the community.

The only serious question then is whether the learned sentencing judge was entitled to make the sentences for the second and third offences cumulative upon that imposed in respect of the first. Though the second and third offences were, as we have said, closely interrelated, neither had any relationship with the first. They were separated in time by more than seven months. They were at different locations and involved different co-accuseds. Indeed, the only connecting factor between the first offence on the one hand and the second and third offences on the other is in demonstrating the applicant's propensity for vicious attacks upon the heads of his victims. There is therefore no reason, on orthodox principle, why the sentences imposed in respect of the second and third offences should have been made concurrent with that imposed for the first.

Neither party was able to point to any closely comparable previous decision. Those decisions which were cited to us at first sight gave the impression that the totality of the sentences in this case was high. But none of them involved the combination of factors to which we have already adverted. And, in any event, the only challenge to the sentences was that to which we have just referred. We would therefore refuse the application.

We add that, although the question of parole is one for the relevant authorities, we think these reasons should be taken carefully into account when any application for parole is considered. We direct that these reasons be forwarded by the Registrar to the Queensland Community Corrections Board, drawing attention to this paragraph.