R v Daley

[1999] QCA 332

99.332

COURT OF APPEAL
McPHERSON JA
THOMAS JA

DERRINGTON J

CA No 201 of 1999
THE QUEEN
v.

ASHLEY JOHN DALEY

BRISBANE
..DATE 18/08/99
180899 T02/AW20 M/T COA 196/99
DERRINGTON J: The appellant was 24 years of age when, on
the night of 17-18 November 1997, he committed a number of
offences. They were committed in two different events. In
the first he committed a house breaking and stealing from
premises, and in the second series of offences he committed
a burglary in the residence of the victim, upon whom he then
committed an assault occasioning grievous bodily harm with
intent to do grievous bodily harm. While escaping from that
incident he assaulted a person who came to that lady's
assistance.

In respect of the first two counts, that is the housebreaking and stealing, he was sentenced to one year and six months imprisonment and one year respectively. In respect of the other counts, that is the counts surrounding the charge of assault causing grievous bodily harm with intention to cause grievous bodily harm he was sentenced to four years imprisonment for the burglary, eight years imprisonment for the grievous bodily harm with intent and one year for the assault occasioning bodily harm.

In respect of the count of causing grievous bodily harm with intent he was also declared to be a serious violent offender. His appeal is now limited to the declaration that he was a serious violent offender in relation to that count.

He had previously been convicted in 1992 of dangerous
driving, in November of 1992 of unlawful assault and in June
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of 1993 of possession of property suspected of being
unlawfully obtained.
The circumstances of the relevant offences, and it is
desirable to cover the entire relevant period, are these.
On the night of 17 November having accompanied three friends
to Magnetic Island and booked into a resort he and his
friends were drinking. That night between 8 p.m. and
midnight he gained entry into the room of other guests by
breaking through a screen covering a window. In that room
he stole backpacks, cameras, clothing and personal papers
belonging to the two female occupants.

At about 10 p.m., having consumed further alcohol, he and his friends drove to the Coconut Resort for more drinks. At that resort was a lady named Farragher who retired to her dwelling in the resort grounds at about 11 p.m. She was an employee there.

Just after midnight a Mr Chadwick, who was occupying another
residence in the resort, was awakened by a series of regular
banging noises coming from Miss Farragher's residence. He
investigated and was attacked by the appellant who had
emerged from Miss Farragher's residence making growling
sounds. Mr Chadwick was struck on the side of the face and
the side of the head causing swelling and tenderness. That
is the basis of the count of assault occasioning bodily
harm.
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The appellant fled and was said to be rather agile in doing
that. Mr Chadwick went to Miss Farragher's residence and
found her severely injured on the floor of her residence. A
rock lay on the floor nearby. She was bleeding profusely
from numerous head and hand wounds. She was naked except
for a pair of panties hanging round her right ankle. When
spoken to she begged, "Please don't let him hit me again".

She was taken to hospital and found to have severe head injuries including deep lacerations to the scalp and forehead, lacerations to the face, a broken nose, gross swelling of the left eye, with a fracture of the eye socket, a fractured jaw, dental injuries including the loss of a tooth, and a compound fracture of a finger with disruption of the extension tendon and a subdural haematoma.

These injuries were consistent with her having been bashed with a rock. She underwent emergency surgery at the hospital and remained there for over a week. At the time of the sentence she was to undergo further reconstructive dental surgery which would cost about $6,000. In February of 1999 she still had an absence of feeling on parts of her face and head as well as pain in her fingers. She had permanent and prominent scarring to the face and considerable on-going psychological problems. These are graphically recounted in her victim impact statement.

The appellant was apprehended when he was identified by
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Mr Chadwick to the police on the following day as he was
boarding the ferry to return to Townsville. At first he
denied involvement in the matter and attributed the fresh
injuries on his arm to a swimming accident. One of his
companions, however, gave a statement incriminating him.

That was a Mr Clifford who said that he was at the vehicle which these people had and the appellant returned to it running down the hill. He jumped into the vehicle and said, "Quick, let's get back to Geoff's place. I just had a fight with some gooks and now they're after me". Clifford noticed that he had some fresh injuries to his arms.

In this appeal the appellant claims that those injuries occurred on rocks, and that may be true in that he may have suffered them while he was in the course of fleeing when observed by Mr Chadwick. The appellant pleaded guilty after the Crown agreed not to proceed on a charge of attempted murder.

There are a number of significant features about this. The
maximum sentence in respect of the counts of burglary and
grievous bodily harm with intent is life in both cases.
This was a savage attack with serious consequences on a lone
female in her home. It appears to be likely that it was
interrupted only fortuitously when Mr Chadwick intervened,
and of course he himself was assaulted in that process.
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The intent of the appellant in entering the dwelling remains
unknown but it appears to have been premeditated in that he
took a rock into Miss Farragher's residence with him and
used that to inflict these gross injuries upon her. Of
course it need not be emphasised that that lady has been
left with serious physical and psychological injuries as the
result of that attack.

The appellant has a relatively minor criminal history but he is certainly not of impeccable character and it is of importance to note that his criminal history includes an assault. However, His Honour accepted that his behaviour was out of character - that may have been somewhat generous to him - and also that his explanation which he advanced was that his actions were attributable to alcohol and drug consumption.

His Honour accepted that the appellant had been remorseful
and was shocked and ashamed, but again it should be noted
that the appellant gave to the police false accounts of his
involvement when he was first questioned about the matter.
His Honour took into account his guilty plea but indicated
that it would be unreasonable not to exercise his discretion
to declare this to be a serious violent assault. With
respect, that observation would appear to be absolutely
correct.
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The appellant's appeal is limited to that declaration but it
must be said that it would be an impossible result if His
Honour had failed to have made such a declaration, having
regard to the nature of the assault and the apparent
premeditation that was involved by the appellant's taking
the rock with him into the lady's residence. It is also of
some significance, one might think, that this event was part
of a series of misbehaviour of the appellant of a somewhat
like kind on that night, in so far as he had earlier broken
into other people's quarters.

He now claims that he had earlier that night suffered some head injury in a motor vehicle accident and that he had the experience of some periods of blackout in his recollection of the events of that evening. He claims that he had stated this to the police officer at an earlier stage but that the police had not taken it down. He states further that it was not mentioned later when the record of interview was taken, which was recorded.

He also claims that he told his solicitor and counsel about
it but that they did not mention it in the sentencing
procedure. It is true that no mention was in fact made in
the sentencing procedure and the question was not raised at
all. His present claim seems to be of little weight having
regard to the evidence of his friend Clifford, who was able
to tell the police of the appellant's return to the vehicle
and the way in which he behaved on that occasion. It shows
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no indication of his being involved in an episode during a
period of blackout.

Indeed his behaviour generally at the time seems to be inconsistent with that claim. Further, it might be added that in a lengthy pre-sentence report no mention was made of that feature. Assuming that he did instruct his solicitor and counsel to the effect that he had suffered a head injury, as to which he received no medical attention and as to which he apparently showed no external physical sign, it may well be that his learned counsel felt that it may have betrayed an absence of real remorse upon the appellant's part if learned counsel had presented that to the Court as a form of excuse.

He may well have felt that the appellant was not genuine in that respect and raising feeble excuses as a means of exculpating himself. In any event there is not material here upon which this Court could act in respect of an allegation of fact of that kind. In my opinion there are no grounds upon which the declaration that this was a serious and violent offence could possibly be set aside, and I would hold that the appeal should be dismissed.

McPHERSON JA: I agree. This was a very serious and unprovoked offence, committed on a victim who was asleep at the time, and having for her extremely serious consequences.

She was an unoffending and quite inoffensive young woman

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who was a visitor to Australia on a working holiday. She
has since returned to England and her victim impact
statement records, among other matters, that the smashing of
her face with a rock has caused the muscles to be damaged
and resulted in sagging of her face.

Needless to say, this causes her embarrassment in public, and among other matters she avoids being photographed. Such an injury is serious in anyone, but especially in the case of a young woman. She has undergone some change of personality, is afraid of men, and is afraid of being on her own. The fact is, as His Honour noticed, that on all the evidence she is likely to suffer permanently in her life in the future.

In the light of these factors all other circumstances pretty well pale into insignificance. The effective head sentence of eight years was within the proper limits for an offence or offences of this degree of seriousness, and the only real complaint that the applicant makes in what he has said to this Court is that he will be obliged to serve 80 per cent of the sentence of eight years imposed with respect to count three on the indictment, number 196 of 1998, for the offence of grievous bodily harm.

As to that, it seems to me, as it seems to Mr Justice
Derrington in the remarks he has just made, almost
impossible to see how the learned Judge could have avoided
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making a declaration that this was a serious violent
offence. I doubt whether, even if it were established that
the applicant had been suffering in some way from the
effects of a bump on the head or concussion before he
committed this offence, whether it could have made any
difference to the duty of the Judge to make the declaration
in question.

Once the declaration was made the Penalties and Sentences Act dictated the consequence that would follow, namely that 80 per cent of the sentence would have to be served before the applicant would become eligible for consideration for parole. The Judge had no power to avoid or avert that consequence by making any order to the contrary. In the circumstances I can see no basis on which we could interfere with the sentence in this case, which to my mind was a proper one.

THOMAS JA: I agree generally with what the other members of the Court have said. However, with respect to the declaration that this was a conviction of a serious violent offence I content myself with saying that His Honour was not in error in making that declaration. The sentences are not excessive overall. I would refuse the application.

McPHERSON JA: The order is that the application for leave
to appeal against sentence is dismissed.
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