R v Jack
[2025] QCA 26
•13 MARCH 2025
[2025] QCA 26
COURT OF APPEAL
BODDICE JA
BROWN JA
CROW J
CA No 214 of 2024
DC No 411 of 2024
DC No 491 of 2024
THE KING
v
JACK, Joseph Robert Walter Applicant
BRISBANE
THURSDAY, 13 MARCH 2025
JUDGMENT
CROW J: The applicant, Mr Jack, was sentenced to six years’ imprisonment for unlawfully doing grievous bodily harm. The applicant seeks leave to appeal that sentence on the basis that it was manifestly excessive, and on the basis of specific error, that the primary Judge proceeded on an error of fact in finding that the victim of the assault remained largely immobile at the time of his death, because of the injury suffered from the offence. The applicant submits that such a finding was not open to the primary Judge. In my view, on the material placed before the primary Judge, that finding was not only open, it was the only finding that was open.
The statement of agreed facts upon which the primary Judge sentenced the applicant established the following matters: (a) on 30 September 2023, the 56 year old complainant was smoking a cigarette in the outdoor smoking area of a licensed premises; (b) the applicant started yelling at the complainant from outside the venue, then jumped over a balustrade, approached the complainant, yelled at him, and punched the complainant in the head; (c) the complainant fell backwards, with his right leg contorting beneath him as he fell to the ground, causing the complainant’s right ankle to be fractured immediately, the complainant’s right ankle bone protruding from his leg; (d) the complainant suffered from a compound fracture dislocation of the right tibia and fibula, which required surgery on 1 October 2023 and 17 October 2023. Although the compound fracture dislocation was reduced, the complainant’s right saphenous vein was irreparably damaged; (e) the complainant remained in hospital for almost a month, until 28 October 2023, when he was discharged.
The victim impact statement established the following matters: (a) after the complainant was discharged from hospital, he was wheelchair-bound for about three months, from late October 2023, to early February 2024; (b) from early February 2024, the complainant, an electrician, had been rendered unable to work, unable to drive a vehicle, and unable to weight bear on his damaged right leg. He became quite depressed and suffered from, quoting from the victim impact statement of the complainant’s father, a total change in his life, which made it very hard for Anthony to cope; (c) the complainant struggled financially and did not submit medical certificates, so he missed out on payments from work and Centrelink. He required his family’s financial assistance for ordinary living expenses. He became very anxious and had trouble sleeping at night; and (d) the complainant passed away in April 2024 from unrelated liver cirrhosis.
The applicant’s complaint is that the evidence did not sufficiently support the factual finding the complainant was largely immobile as a result of the injury sustained. As it may be observed from above, the complainant underwent two operative procedures, and was discharged from hospital after a month. For the next three months he was confined to a wheelchair.
In the approximately three months between early February 2024 and his death in April 2024, the complainant could not weight bear on his damaged leg. For a 56 year old man, who was a trade-qualified electrician, and who’s duties included climbing ladders, the effect of the injury to his right leg transformed the complainant from a man who was extremely mobile, to a man who could not weight bear on one leg. In my view, it is reasonable to describe the alteration in mobility from a man who was fully mobile and able to use a ladder, to a man who could not weight bear on one leg, has been rendered largely immobile. A factual error has not been demonstrated.
In R v Eaton [2019] QCA 147, at [71], this court said, “In order to establish that the sentence was manifestly excessive, this Court must be satisfied that there ‘must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. The mere fact that the sentence imposed is different from other sentences, and even markedly different from other sentences, does not establish that it is manifestly excessive. As was said by this court in R v MCT, ‘To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’. Consistently with accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.’”
The applicant attempted to demonstrate that the sentence was manifestly excessive by reference to three Court of Appeal decisions: R v Ford [2011] QCA 208, R v Dietz [2009] QCA 392 and R v Green [2013] QCA 24. The first error in the applicant’s approach is treating any of those decisions as authoritative decisions on comparative facts. That submission must be rejected. Firstly, in each case leave to appeal was refused on the basis that it had not been demonstrated that the sentences were manifestly excessive. That is not akin to a finding that sentences were correct or approved by this court as correct; rather, it is a conclusion that those sentences were not manifestly excessive. The factual circumstances of each of those cases, and relevant antecedents for the offenders, are very significantly different from the applicant in the present case.
The applicant in Ford was 18 years of age, without any prior convictions, and with promising rehabilitation prospects, and otherwise of good character. The applicant here is of 34 years of age, and had prior convictions for serious offending, and in particular, recorded by the primary Judge, “On the 6th of June 2012, you were sentenced for offences involving a violent rape of a young woman, who was a stranger to you, as she was making her way home in the early hours of the morning at Port Douglas. You were then only 20 years of age. Ten days earlier you had accosted another young woman who, through her own strong wits, managed to avoid a more serious offending against her by you. You were sentenced, following a trial, to 10 years’ imprisonment, and I am told as a result of that sentence you remained in custody until the 25th of June 2019.”
After having been released on 25 June 2019, the applicant committed offences of violence, and breach of domestic violence order, which the primary Judge described as “objectively serious offending”. Whilst the injuries sustained by the complainant in Ford, of serious brain injury, are much worse than the injuries sustained by the complainant in the present case, the respective antecedents are so different, that it is not a comparable factual sentence at all.
I take the same view in respect of the Dietz decision, as in that case the offender was 20 years of age, with no criminal history, a good work history, and good prospects of rehabilitation. Dietz, like Ford, was a one-punch case, resulting in a severe brain injury. Accordingly, the six-year sentence imposed by the primary Judges in Ford and Dietz have no assistance in establishing that the applicant’s sentence was manifestly excessive.
Green’s case is factually different in that, although a one-hit case causing brain damage, the effects of the injuries were objectively less serious than in Dietz and Ford. Mr Green had a very disadvantaged upbringing, and a concerning criminal history, with offences of violence. Mr Green was sentenced to five years’ imprisonment, and that sentence was held to be not manifestly excessive. The applicant shares, with Mr Green, a disadvantaged background and concerning criminal history. The injuries suffered by the complainant in Green were objectively less than the effects of the injuries suffered by the complainant in the present application, in that although the complainant in Green suffered from a brain injury, he made a sufficiently good recovery to be able to return to work.
The applicant also relies on this court’s decision in R v Tom [2018] QCA 218. The decision in Tom is of some assistance insofar as Justice Bond, as he then was, with whom Justices Philippides and Boddice agreed, did consider that if the applicant Tom had been sentenced on a grievous bodily harm offence alone, four years would have been an appropriate sentence. As to antecedents, Tom was aged 21, whereas the applicant is 34.
Although Tom had some criminal history of wilful damage, obstruct police, assault police, an attempted armed robbery with actual violence in company, his criminal history is far less serious than the applicant’s. Tom’s unlawful conduct was more egregious than the applicant’s, insofar as Tom assaulted a 53 year old good Samaritan complainant, throwing rocks in her face, punching her twice in the face, and then causing her to fall over and suffer a serious leg injury. Tom then persisted with violence, lunging at the complainant, and persisted with punching two others, causing bodily injury to one, and common assault on the other.
The injuries suffered by the complainant in Tom, and the effects of the injury in Tom, were less than that sustained by the complainant in the present case. The complainant in Tom suffered from a fractured tibia, requiring 22 days in hospital and surgery. The complainant was discharged on crutches for eight weeks, but was able to return to walking, albeit when walking her dogs in the afternoon, she did suffer from knee pain. The significant differences in these salient features leads me to conclude that the decision in Tom is not a comparator to the applicant’s circumstances.
Analysis of the other cases does not support a conclusion that there must have been some misapplication of principle. The applicant argues the primary Judge mischaracterised the harm to the victim, in the sense of overestimating the level of relevant harm caused and failed to take into account the applicant’s prejudicial childhood, such that the combination of those two matters leads to the conclusion that there must have been some misapplication of principle.
As discussed above, I do not accept the primary Judge mischaracterised the harm to the victim, nor overestimated the relevant harm caused. As to the need to take into account the applicant’s prejudicial childhood, the primary Judge expressly recorded that he took into account the applicant’s background, and matters personal to the applicant, which the primary Judge said included as follows, “I accept that you have experienced a significantly disadvantaged upbringing. Your parents separated when you were young, and thereafter you witnessed and experienced violence within your domestic setting. You were passed around to other members of your family to care for you, and you have therefore been denied the opportunity of a stable home and the opportunity to avail yourself of a formal education in a meaningful way. I accept, therefore, that to some extent, you too are the product of circumstances not of your own making.”
In my view, the primary Judge has taken into account the applicant’s prejudicial childhood. As a result, I would order that the application for leave to appeal be dismissed.
BODDICE JA: I agree.
BROWN JA: I agree.
BODDICE JA: The order of the court is the application for leave to appeal is dismissed. Yes. Counsel are thanked for their helpful written and oral submissions. Adjourn the court.