R v Hegarty

[1994] QCA 40

IN THE COURT OF APPEAL [1994] QCA 040

SUPREME COURT OF QUEENSLAND	C.A. No. 482 of 1993
Brisbane
BeforeMr Justice Davies Mr Justice Pincus Mr Justice Thomas
[R. v. Hegarty]

T H E Q U E E N
v.

RUSSELL JAMES HEGARTY (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND (Appellant)

_______________________________________________________________

DAVIES J.A. PINCUS J.A.

THOMAS J.

Judgment delivered 11/03/1994
REASONS FOR JUDGMENT - THE COURT
APPEAL AGAINST SENTENCE ALLOWED.
SET ASIDE SENTENCE IMPOSED BELOW.
SUBSTITUTE A SENTENCE OF THREE AND A HALF YEARS WITH A
RECOMMENDATION THAT THE RESPONDENT BE ELIGIBLE FOR PAROLE AFTER
SERVING SIX MONTHS OF THAT TERM.
THE DATES BETWEEN WHICH THE RESPONDENT WAS HELD IN PRE-SENTENCE
CUSTODY ARE 20 NOVEMBER 1992 AND 3 FEBRUARY 1993, A PERIOD OF 75
DAYS.
DECLARE THAT PERIOD TO BE IMPRISONMENT ALREADY SERVED UNDER THIS
SENTENCE.

_______________________________________________________________

CATCHWORDS:CRIMINAL LAW - Attorney-General's appeal against
sentence - respondent convicted of offence of
causing grievous bodily harm to former de facto
- sentence of imprisonment imposed wholly
suspended - whether sentence manifestly

inadequate - bad history of violence - whether

deterrence necessary - mitigating factors

Counsel:Mr Butler for the Appellant

Mr Rafter for the Respondent

Solicitors:Director of Prosecutions for the Appellant

Legal Aid Office for the Respondent

Date(s) of Hearing:4 March 1994

R EASONS FOR JUDGMENT - THE COURT

Judgment delivered 11/03/1994

The respondent was convicted in the District Court on 30 November 1993 of grievous bodily harm on 20 November 1992. He was sentenced to three and a half years' imprisonment wholly suspended for five years. A period of two and a half months spent in custody prior to sentence was declared to be taken into account in imposing the sentence.

The Attorney-General appealed against that sentence on the ground that it was manifestly inadequate.

The offence was committed during the course of an assault committed by the respondent on his former de facto wife. They had lived together for about seven years, the relationship having terminated in January or February 1992. It had been a violent relationship involving numerous assaults by one upon the other. In December 1989 the respondent had been convicted of an offence of assault occasioning bodily harm while armed with an offensive weapon and sentenced to two months' imprisonment with three years' probation. That assault, which was committed in 1987, was also upon the complainant in this offence. In consequence of the 1987 assault she suffered multiple bruising and lacerations to her limbs and trunk and fractures to a rib and upper right tibia. On the sentence hearing in this matter the respondent, who gave evidence on his own behalf, showed the learned sentencing judge a number of scars which, he said, resulted from assaults committed on him by the complainant.

On the afternoon of 20 November 1992 the respondent and the complainant were together at an hotel in Murgon. There was an altercation followed by some violent physical contact between them. There were conflicting versions of what occurred, particularly as to who initiated the physical contact, but that conflict was not resolved by the learned sentencing judge and need not be resolved by us. During the course of that episode the complainant struck the respondent with a beer glass, cutting his head sufficiently badly to require ten sutures.

That evening the respondent, without warning, entered a house in Cherbourg where the complainant was watching television with relatives and punched the complainant in the head from behind. When she turned she saw that he was holding a piece of wood about 40 centimetres in length which, as it happened, was the leg of a chair or a coffee table. She ran from the house pursued by the respondent who caught her, dragged her back onto the roadway and beat her with the piece of wood whilst she was lying on the roadway. He beat her around the head, body, legs and arms. She begged him to stop but he continued. She managed to get up, run into the house and lock herself in a bedroom.

Soon after this episode a doctor saw her. He noted extensive lacerations to her head and bruising to her left cheek, left temporal area, right wrist, right forearm, left hand, left forearm and to the shoulder blade region. An artery had been split in the head. Without treatment it would have resulted in death. The laceration to her head required 16 sutures and further sutures were required to stem bleeding.

The events of 20 November 1992 should be placed in the context of events which had occurred during the period between January or February 1992, when the respondent and the complainant separated, and that date. Both lived in the Cherbourg community. The respondent's work required him to ride a bike around the community delivering appointment cards for the hospital, his employer. According to the respondent, whenever the complainant would see him she would call out abuse or "talk filthy things" just to embarrass him. This humiliated him greatly. He would, in consequence, walk with his head down. If he spoke back her to her, she would say "You touch me, you are going to jail", a reference to the jail sentence he had served in 1989 for assaulting her. Also, if he went to the canteen to drink with friends and she was there, as she often was, she would throw beer or a glass at him and he would have to leave. He complained to the police but they did nothing about it.

It is also necessary to put the assault in the context of the respondent's previous criminal history. Over the period since 1973 he had been convicted on six occasions, including the occasion in December 1989 referred to above, of assault. In August 1973 he was convicted of assaulting a female and sentenced to two months' imprisonment which was wholly suspended. In April and again in September 1979 he was convicted of assaults occasioning bodily harm and on each occasion fined. Then came the December 1989 conviction. And finally in August 1992 he was convicted to two offences, one of assault occasioning bodily harm and one of aggravated assault on a female, for both of which he was fined. One or both of these involved an assault on another de facto wife, apparently the woman he had taken up with after he and the complainant had separated.

The offence on this occasion, and no doubt some of the others, were associated with the respondent's drinking problem. He described himself as a "binge drinker". He did not drink every day; he would sometimes go for months or a year without drinking but when he started he found it difficult to stop. At least after the commission of this offence he realised he needed help with his problem. He was in jail from 20 March 1992 to 3 February 1993 but upon his release he went to the Cherbourg Rehabilitation Centre for treatment and was still undergoing treatment there at the time of sentence.

This long history of violence, particularly violence towards women is an important factor in determining the term of imprisonment to be imposed on the respondent and, importantly, whether he should be required to serve part of that term. And it is of some relevant that he was still on probation for the offence for which he was convicted in December 1989 when he committed this offence.

The respondent pleaded guilty at an early date. However, it should be mentioned that the delay in bringing the matter on for sentence was not suggested to be the fault of the prosecution. It was at least in part caused by difficulties which the respondent had in obtaining representation.

There appear to be three main factors which the learned sentencing judge took into account in wholly suspending the sentence of imprisonment which he imposed. They were the period of time spent in custody on remand, the two and a half months referred to above; the prompt plea of guilty; and references which indicated high regard in which the respondent was held by members of the Cherbourg aboriginal community. He was apparently a good worker and generally reliable.

No doubt each of the above matters was a relevant factor for his Honour's consideration. We also think it was proper for his Honour to take into account, as he no doubt did, the extent to which the complainant, by her conduct over a quite extended period, had publicly humiliated the respondent; and that the respondent's attendance at the Cherbourg Rehabilitation Centre for his drinking problem indicated some prospect of his rehabilitation.

Nevertheless the respondent has a bad history of violence as the previous convictions to which we have referred testify, and the punishments so far imposed - fines, a suspended sentence, a short term of imprisonment and probation - have not had the effect of deterring him from committing offences of this kind. We therefore think that the learned sentencing judge's discretion miscarried in failing to require the respondent to serve some part of the term of imprisonment which he imposed. Whilst we would not interfere with the sentence of three and a half years imprisonment, deterrence both of the respondent and of others who may be likeminded requires, in our view, that the respondent serve part of that term. On the other hand, the mitigating factors to which we have already referred justify a recommendation that the respondent be eligible for parole after only a relatively short period. Accordingly, we propose to order that he be eligible for parole after serving six months. He will, of course, be given the benefit of the time spent in pre-sentence custody.

Accordingly, we make the following orders:
1.Allow the appeal.
2.Set aside the sentence imposed below.

3.Substitute a sentence of three and a half years with a

recommendation that the respondent be eligible for parole
after serving six months of that term.

4.The dates between which the respondent was held in pre- sentence custody are 20 November 1992 and 3 February 1993, a period of 75 days.

4.Declare that period to be imprisonment already served under

this sentence.