Criminal law and procedure - Crown appeal against sentence - Assault occasioning grievous bodily harm - Unprovoked single punch causing permanent disability - Sentence of community based order with requirement of community service manifestly inadequate - Sentence of 2 years' imprisonment substituted
Legislation:
Nil
Result:
Appeal allowed Sentence imposed by District Court on 3 August 1999 set aside Sentence of 2 years' imprisonment with eligibility for parole substituted
Representation:
Counsel:
Appellant: Mr M Mischin
Respondent: Mr M E Herron
Solicitors:
Appellant: State Director of Public Prosecutions
Respondent: Chilvers Marshall
Case(s) referred to in judgment(s):
McLaughlan v The Queen, unreported; CCA SCt of WA; Library No 950252; 26 May 1995
Munmeri v The Queen, unreported; CCA SCt of WA; Library No 8746; 1 March 1991
R v McCarthy (1995) 16 Cr App R (S) 1038
R v O'Neil, unreported; CCA SCt of WA; Library No 960172; 29 March 1996
Case(s) also cited:
Drage v The Queen, unreported; CCA SCt of WA; Library No 990098; 8 March 1999
R v Jacobs, unreported; CCA SCt of WA; Library No 930610; 29 October 1993
R v O'Malley, unreported; CCA SCt of WA; Library No 980715; 9 December 1998
R v Webb, unreported; CCA SCt of WA; Library No 930524; 1 October 1993
JUDGMENT OF THE COURT: This is a Crown appeal against sentence. The respondent pleaded guilty to an indictment in the District Court at Karratha charging him with the offence of unlawfully doing grievous bodily harm on 31 January last. He was sentenced to a community based order for two years with a requirement to complete 120 hours of community service. The appeal is essentially on the ground that the sentence was manifestly inadequate.
The facts are that the respondent had been drinking heavily at the Wickham Sports Club in Karratha. When the club closed at about 2.30 am the victim, who was a friend of the respondent, offered to drive him home. The respondent got into the back seat of the vehicle with the victim's girlfriend, the front passenger seat being occupied by another acquaintance of the victim, who was asleep. As they were driving, the respondent commenced to make sexual advances to the victim's girlfriend. She angrily resisted them and the respondent began to verbally abuse her. Eventually, the victim stopped the car and he and his girlfriend told the respondent to get out. At first he refused to do so, but ultimately he did get out of the car. By this time, the victim was also out of the car and there was a verbal exchange between them. The respondent indicated that he wished to fight. The victim and his girlfriend were urging the respondent…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Hodges [1999] WASCA 278
Case
[1999] WASCA 278
Decision Date
CaseChat Overview and Summary
In this appeal, the Crown sought to challenge the adequacy of the sentence imposed on the respondent for an offence of grievous bodily harm. The respondent, having pleaded guilty to the charge, was sentenced to a two-year community based order with a requirement to complete 120 hours of community service. The Crown's appeal was predicated on the contention that the sentence was manifestly inadequate. The case originated from an incident that took place at the Wickham Sports Club in Karratha, where the respondent, heavily intoxicated, engaged in inappropriate behaviour towards the victim's girlfriend. After being asked to leave the vehicle, a verbal altercation ensued, leading to the respondent delivering a single, unprovoked punch to the victim's face, causing severe injuries. The victim suffered a fractured skull, swelling and bruising to his brain, and remained unconscious for several days, followed by a lengthy period of rehabilitation. The victim's long-term disabilities included impaired speech, loss of taste and smell, significant memory loss, fatigue, and an inability to engage in physical activities or certain jobs.
The legal issue before the court was whether the sentence imposed was manifestly inadequate in the circumstances. The Crown argued that the sentence failed to reflect the gravity of the offence, particularly the unprovoked nature of the assault and its severe consequences for the victim. The court considered the principles of sentencing, focusing on the need for punishment, deterrence, rehabilitation, and denunciation. In assessing the adequacy of the sentence, the court took into account the severity of the injuries inflicted, the impact on the victim, and the respondent's lack of remorse. The Crown contended that a custodial sentence was necessary to achieve the appropriate balance between punishment, deterrence, and denunciation. The court agreed that the sentence imposed was manifestly inadequate, as it did not adequately reflect the seriousness of the offence and its impact on the victim. The court substituted the original sentence with a term of imprisonment of two years.
In light of the above, the court allowed the Crown's appeal and substituted the original sentence of a community-based order with a requirement of community service with a sentence of imprisonment for a period of two years. The court emphasised the need for a sentence that appropriately reflected the gravity of the offence and its consequences, and that adequately served the purposes of punishment, deterrence, and denunciation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
MURRAY J
JUDGMENT OF THE COURT: This is a Crown appeal against sentence. The respondent pleaded guilty to an indictment in the District Court at Karratha charging him with the offence of unlawfully doing grievous bodily harm on 31 January last. He was sentenced to a community based order for two years with a requirement to complete 120 hours of community service. The appeal is essentially on the ground that the sentence was manifestly inadequate. The facts are that the respondent had been drinking heavily at the Wickham Sports Club in Karratha. When the club closed at about 2.30 am the victim, who was a friend of the respondent, offered to drive him home. The respondent got into the back seat of the vehicle with the victim's girlfriend, the front passenger seat being occupied by another acquaintance of the victim, who was asleep. As they were driving, the respondent commenced to make sexual advances to the victim's girlfriend. She angrily resisted them and the respondent began to verbally abuse her. Eventually, the victim stopped the car and he and his girlfriend told the respondent to get out. At first he refused to do so, but ultimately he did get out of the car. By this time, the victim was also out of the car and there was a verbal exchange between them. The respondent indicated that he wished to fight. The victim and his girlfriend were urging the respondent to get on his way. Suddenly, the respondent struck the victim a heavy blow to the face with a clenched fist. The force of the blow and its immediate consequences were described in the girlfriend's deposition as follows:"I was looking back and as I turned around I saw Stacey king hit Mort to the face with a clenched fist.…Mort flew back out [sic about] 2 metres and landed flat on his back.I heard the crunch of his head hit the ground. He was immediately unconscious." Thereafter, as the victim lay unconscious, the respondent commenced to physically assault and abuse the girlfriend. Separate charges were preferred in respect to the offences committed on the girlfriend and the respondent has been sentenced on those charges. It is, however, relevant to the circumstances surrounding the gravity of the offence now under consideration to know that he took the girl by her hair and dragged her a short distance by her hair and then punched her to the jaw with his fist, causing bruising to her lips and cuts to the inside of her mouth. The victim was seriously injured. He suffered a fractured skull and sustained bruising and swelling to his brain. In the medical report, the injury was described as life‑threatening. He was in a coma for two weeks and spent about six weeks in a rehabilitation centre. In his victim impact statement, he described his residual disabilities as including the following:"a)my speech is now very slow and slurred at times;b)I have lost my sense of taste and smell except that I can smell garlic and chilli;c)significant loss of memory;d)I tire very easily and after two or three hours of any type of activity I need to rest and sleep;e)I cannot do physical activities that I did before such as swimming, jogging, tai chi. I cannot even cut meat at the dinner table nor can I drive. I have lost a stone in weight and cannot do work working, welding and any handyman jobs that I was fond of doing before the accident."