R v Collie - [2007] SASC 293

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLLIE
[2007] SASC 293
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
9 August 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appeal against sentence - appellant convicted by jury verdict of wounding with intent to do grievous bodily harm - appellant sentenced to a term of imprisonment of three years and four months with a non-parole period of eighteen months - whether sentence was manifestly excessive considering appellant's antecedents and personal circumstances - whether sentencing Judge erred in not suspending the sentence - Held: appeal dismissed - offending was a grave and vicious assault in a public place - circumstances give rise to a need for the sentence to reflect both general and personal deterrence - sentence imposed by the Judge and the decision not to suspend were well within her discretion.
Criminal Law Consolidation Act 1935 (SA) s 21, referred to.
R v Makevits [2006] SASC 73, considered.

R v COLLIE
[2007] SASC 293
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J. In my view the appeal should be dismissed for the reasons given by Gray J.
GRAY J.
This is an appeal against sentence.
The appellant, Bradley Michael Collie, was convicted by jury verdict of the crime of wounding with intent to do grievous bodily harm, contrary to section 21 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is life imprisonment. The appellant was sentenced to a term of imprisonment of three years and four months. A non-parole period of eighteen months was fixed. The sentence was not suspended.
On the evening of 13 May 2005 the appellant attended with his brother, Corrie John Collie and his brother’s girlfriend, Jodie Sparrow, at a tavern in a northern Adelaide suburb. The appellant had been drinking beer before he arrived at the tavern and had more to drink at the tavern. The appellant and his party stayed at the tavern until about 4:00 the following morning.
The victim of the offence, with others, was also drinking at the tavern and had been consuming alcohol during the evening. He was not known to the appellant.
Shortly prior to 4:00 am the victim inadvertently bumped Ms Sparrow. This led to her abusing the victim and he responded by swearing at her. Following the initial interaction the Ms Sparrow pushed the victim. At that point the appellant intervened and struck the victim to the right side of his face with a pint glass containing beer.
A bar supervisor was in close proximity and witnessed the incident. He described the appellant as walking toward the victim from the victim’s “blind” side. The bar supervisor saw the appellant raise his right hand to about shoulder height, that he was holding a pint glass, and that he swung his hand and the glass directly into the victim’s face. The bar supervisor was aware of smashing glass and a spray of beer. The victim was holding his hands to his face and falling to the ground. The bar supervisor observed the victim on the ground, hunched over and facing the floor. He then observed the appellant kick the victim.
Another bar attendant described the blow with the hand and glass in similar terms. This witness saw the appellant kicking the victim while on the ground a number of times. The kicking had the effect of moving the victim’s body quite violently. While the victim was on the ground, this witness saw the appellant punch the victim a number of times. This was being done in combination with the kicking.
The learned sentencing Judge observed:
Your response to what you observed occur between Sparrow and [the victim] was as appalling as it was dangerous. No doubt all three of you had had far too much to drink. Even so, that is no excuse for your conduct. On the contrary, such wanton aggression as yours seems to be a feature of prolonged drinking sessions such as this and in that sense is all the more serious.
The victim was taken by ambulance to the Lyell McEwin Hospital. On arrival he was semi-conscious and was bleeding from facial wounds. A CT scan revealed a depressed fracture of the right anterior maxillary antrum. There was no intracranial injury. The wounds to the right side of the face were sutured. In all, 24 sutures were inserted. The injuries have left permanent scarring to the right side of the victim’s face, around the right cheek and under the right eye.
The appellant was aged 20 years at the time of the offence and 22 years at the time of sentencing. He had no prior convictions in an adult court. However, in June 2002 he was before the Youth Court for a number of offences including the offences of aggravated serious criminal trespass, common assault and two counts of assault occasioning actual bodily harm. He was convicted of the two counts of assault occasioning actual bodily harm and placed on a nine month detention order. That order was suspended on his entering into a good behaviour bond for 12 months.
The sentencing Judge made the following observations about the appellant’s personal antecedents:
You have been working as a concreting labourer for Adelaide Kerbing and you have done that for about three years. You are well thought of by that firm.
…
I am told that you have a partner of some four years standing. Later in 2005, after this incident, your partner became pregnant and last year gave birth to your son. That child is now eight months old. I am told the pregnancy was unplanned. I accept these things, but they have only a limited role to play in your sentencing. I am told that you are contrite and I have letters from your mother and partner which speak of a change in you since this event. That bodes well for your future. I accept that what happens to you today deeply affects your family as well as you.
The sentencing Judge declined to exercise her discretion to suspend the sentence. In that respect her Honour observed:
I have given careful consideration to all these submissions. In a matter such as this the penalty to be imposed must act as a deterrent both to you and to the wider public. Incidents such as this occurring at licensed premises where the participants are fuelled by liquor and other drugs are unfortunately common. There is absolutely no justification or excuse for conduct such as yours. No doubt [the victim] acted extravagantly, but I refute any suggestion that he made any physically aggressive movement such as might have caused you to apprehend violence to yourself or anyone else.
The sentencing Judge then concluded:
It must be brought home to you and other persons minded to behave as you did that attacks on other patrons in licensed premises, whether provoked or not, and the use of weapons in such attacks will not be tolerated. In my mind, even having regard to your relative youth and steady work record, a sentence of no less than three years and four months imprisonment must be imposed. I propose to fix a non-parole period of 18 months.
As I said, I have considered the matters put on your behalf by way of mitigation. I have brought them to bear both in relation to the head sentence and the non-parole period, and furthermore have considered them again in the context of whether good reason can be found to suspend the sentence.
I consider that this incident, although brief and although lacking premeditation, was so serious and had the potential to cause such tragedy that no good reason can be found to suspend the sentence.
On appeal, counsel for the appellant submitted that the sentence imposed was for too long a term and should in the circumstances have been suspended. It was contended that the sentencing Judge gave insufficient weight to the appellant’s youth, his prospects for rehabilitation, and the fact that the sentence imposed was his first immediate custodial sentence. Emphasis was placed on the absence of any adult criminal record. Counsel pointed out that the appellant had been in employment since leaving school. At the time of offending he had been employed by the one employer for three years. It was contended that he had shown an increasing maturity, especially since his partner’s pregnancy and the birth of their first child. His improvement, it was contended, was “so vast” that he was allowed to run his own team of workers at his place of employment. Counsel further submitted that the offence was impulsive rather than premeditated, and clearly the result of the appellant’s inability to appropriately control his temper.
Counsel for the appellant submitted that the appellant’s future may be finely balanced as a result of the sentence imposed, and the fact that it was not suspended. It is possible, it was said, that he will lose his employment, and with it the stability in his life. For those reasons, it was submitted, it was in the community’s interest, as well as that of the appellant, that a sentence be suspended, and that the appellant be given a chance to preserve his future, and that of his young family.
Counsel for the Director of Public Prosecutions (DPP) submitted that the appellant’s conduct had been properly described by the sentencing Judge as a wanton act of violence and that it was necessary for the courts to be vigilant to deter such criminal conduct. It was said that the sentence imposed reflected an appropriate balance between the competing considerations of deterrence, punishment and rehabilitation.
Counsel for the DPP submitted that there were a number of serious aggravating features to the appellant’s crime. These included the fact that the appellant intentionally used a weapon - a glass - to injure the victim in the vulnerable area of his face and right eye, and the fact that the appellant, having struck the victim to his face, then participated in a further assault upon the victim with others. This further assault, as the learned sentencing Judge found, included kicking the victim while he was defenceless and lying on the ground. Further aggravating features were that the victim, as a result of the attack, received serious injuries including a facial fracture and lacerations the entire way through the wall of his right cheek which have resulted in permanent physical scarring. Counsel submitted that the appellant’s conduct was in reality unprovoked and as the sentencing Judge concluded without justification or excuse. The conduct involved gratuitous violence. Finally, the assault took place in public and on licensed premises; and as such it was submitted by counsel for the DPP that a deterrent sentence was appropriate and inevitable.
Counsel for the DPP submitted that in all these circumstances the sentence imposed was well within the sentencing Judge’s discretion and that it was open to conclude that there was no good reason to suspend.
Counsel for the DPP drew attention to the observations of Layton J in Makevits.[1] When dealing with the offence of wounding with intent to do grievous bodily harm, her Honour observed in terms relevant to the present appeal:[2]
Both counsel for the DPP and counsel for the respondent referred the Court to sentences imposed in other cases for the offence of wounding with intent to do grievous bodily harm. As the Court has observed on previous occasions, such comparisons are of limited assistance. The circumstances of the offending vary greatly. The personal circumstances of the offender also vary significantly. There is no standard punishment for this offending. In cases such as this in which a knife is used with intention to do grievous bodily harm, a lengthy custodial sentence must be considered. Sentences will vary according to the circumstances of the case such as the wounding, the use of a weapon, the type of weapon and the injury sustained.
[1] R v Makevits [2006] SASC 73.
[2] R v Makevits [2006] SASC 73 at [44].
The offending in the present case was grave. Without justification, the appellant struck the victim in the face with a glass. Unsurprisingly, serious facial injuries resulted. The fracture to the skull is an indication of significant force. It was an aggravating feature that when the victim was defenceless on the floor the appellant kicked and punched him with considerable force. This was a vicious assault.
The circumstances in the present case give rise to a need for the sentence to reflect general deterrence. The offending occurred in a public place in circumstances where there may be a considerable number of people affected by alcohol in close proximity. Conduct such as that engaged in by the appellant must be generally deterred.
Although this was the appellant’s first offending as an adult, he had earlier been convicted as juvenile of two counts of assault occasioning bodily harm. On that occasion, he received an order of detention but that order was suspended. This history demonstrates that the appellant has a considerable problem with anger management and a propensity to violence. The problem was acknowledged by his counsel on the hearing of this appeal. Accordingly, the prior offending does have a relevance, notwithstanding that it occurred at a time when the appellant was dealt with in the Youth Court. There is in this case a need for personal deterrence.
Notwithstanding the personal circumstances of the appellant, his conduct called for a significant custodial term. The wanton violence, the general circumstances of the crime, and the need for general and personal deterrence called for an immediate custodial term. The sentence imposed by the Judge was well within her discretion, as was her decision not to suspend the sentence.
This appeal should be dismissed.
KELLY J. I agree that this appeal should be dismissed for the reasons given by Gray J.