R v Kirby & Attorney-General of Queensland

[1995] QCA 160

IN THE COURT OF APPEAL [1995] QCA 160

SUPREME COURT OF QUEENSLAND

C.A. No. 12 of 1995

[R v. Kirby]

T H E Q U E E N
v
GREGORY JOHN KIRBY

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Applicant)

Macrossan CJ

Byrne J White J

Judgment delivered on 05/05/1995

Judgment of the Court

O RDERS:

1. ALLOW THE APPEAL.

2.    SET ASIDE SENTENCE IMPOSED BELOW AND IN LIEU THEREOF IMPOSE A SENTENCE OF 18 MONTHS IMPRISONMENT.

3. SENTENCE IMPOSED IS CUMULATIVE UPON THE SENTENCES IMPOSED BELOW MADE PURSUANT TO S. 146 OF THE PENALTIES AND SENTENCES ACT 1992.

4.   RECOMMEND ELIGIBLE FOR CONSIDERATION FOR PAROLE ON 9 DECEMBER 1995.

CATCHWORDS: SENTENCE - Attorney-General's appeal against adequacy of sentence - grievous bodily harm - whether custodial sentence actually to be served should have been imposed - whether sufficient weight given to relevant factors.

Counsel:  P Rutledge for the applicant
Mrs K McGuiness for the respondent

Solicitors: Director of Public Prosecutions for the

applicant

Legal Aid Office for the respondent

Hearing date: 14 March 1995

REASONS OF THE COURT
Judgment delivered on 05/05/1995

The Attorney-General has appealed against the adequacy of the sentence imposed below. The respondent pleaded guilty on the morning of his trial, on 8 December 1994, to one charge of doing grievous bodily harm on 17 October 1993. The learned sentencing Judge imposed a sentence of 3 years upon the respondent which he wholly suspended for an operational period of 5 years. The sentence was a contested one going principally to the state of mind of the respondent when he inflicted the harm upon the complainant.

The respondent had been an invited guest at a party but in the course of disagreements was ejected. He returned later to the party to "square up" with someone who had been aggressive towards his wife earlier in the evening and to recover property left behind. He was accompanied by several friends and he himself was armed with a short billiard cue. A fight ensued in which the respondent was disarmed. He ran out of the house followed by the complainant, a 29 year old woman, and other attendees at the party. Some little way down the road the respondent bent down and picked up a glass on the side of the road, smashed its top and retained it in his hand. He turned to face his pursuers and called out that anyone who approached him would be hurt. The complainant by this stage had caught up with the respondent and seeing the glass (which she thought was a bottle) in his hand, turned away to avoid him. She was seen to be crouched over and turned away from the respondent when he stabbed her in the back a number of times. The respondent continued running away, picked up a taxi at the end of the road and returned to the residence to collect his companions. The police had arrived by then and he was detained.

There was some debate as to whether there were two stabs or four. The report from the Royal Brisbane Hospital noted that three lacerations were found over the left scapular region and one wound in the left arm. The skin, intercostal muscles and pleura were breached and a left-sided pneumothorax sustained which required the insertion of an intercostal tube. The Royal Brisbane Hospital report indicated that without treatment the complainant's injuries would have endangered her life. She appears to have fully recovered. The respondent denied that he knew that the complaint was a woman when he struck her.

The respondent was aged 21 years having been born on 11 February 1973. He had a bad prior criminal history. A conviction was recorded on 16 August 1990 at the age of 17 years for obscene language, unlawful assault and resisting the police.

Those offences occurred on 5 June 1990. He was convicted of stealing on 19 June 1990 for which he was given 12 months probation and community service. He was convicted of two earlier charges of assault on 20 August 1990 and was given probation for two years. He was convicted in the Southport Magistrates Court on 14 January 1991 of some property offences and two unlawful assault charges which had occurred on 1 December 1990. He was dealt with for breach of his probation orders in June and July 1991 and resentenced in respect of the first offence of stealing by a fine and ordered community service in respect of the breach to the second. He was dealt with for the breach of that community service order on 5 March 1993 by a discharge of that order and resentenced to two terms of imprisonment of six months and three months in respect of the original offences of unlawful assault concurrent upon each other and wholly suspended with an operational period of two years. Accordingly at the time of this offence he was in breach of the terms of his suspended sentences.

The learned sentencing Judge found that the respondent intended to inflict harm when he struck the complainant and commented that the respondent's criminal history "at first blush" made leniency difficult. However he made reference to an improvement in the respondent's present standard of living and thought that his long term prospects were good. He seems to have placed considerable emphasis upon the respondent's evidence that at the time that he struck the complainant he was scared or fearful and was attempting to make good his escape and preserve his own safety. His Honour was of the view that those two factors of being fearful and wishing to escape set this case apart in an important respect from other cases involving injury to another with broken glass as the weapon. He noted that the respondent was affected by alcohol which would explain the conduct during the evening as well as the conduct associated with committing the offence. His Honour concluded that the respondent's plea of guilty, the lateness of which he attributed to the need for proper legal advice, his rehabilitation and lifestyle improvement together with his age and the consumption of alcohol at the time indicated that a wholly suspended term of imprisonment was appropriate.

As this Court observed in Vickery C.A. No. 62 of 1992, an Attorney's appeal, "deterrence is an important factor in relation to offences involving brutal violence in which serious injuries are inflicted on the victim". The facts were that the respondent broke the glass which he was holding and struck the complainant in the face causing him serious injury because he was dancing with the respondent's former girlfriend. He had some previous convictions said not to be material, he co-operated with the police, pleaded guilty at an early stage and gave clear signs of contrition and remorse. He had custody of his six year old daughter. He was ordered to perform 200 hours of community service which he had completed at the time of the appeal. Even so the Court concluded that the sentence imposed was plainly inadequate and a sentence of "at least 18 months imprisonment was warranted" despite the circumstances that the act was spontaneous and the other favourable factors personal to the respondent. The Court found that there was no real alternative to a custodial sentence but because the respondent had completed community service imposed a period of imprisonment of 12 months. R. v. Collins C.A. No. 328 of 1989 was an Attorney's appeal where the respondent thrust a glass into the complainant's face in a bar causing him to lose the sight of one eye. He was imprisoned for six months with a recommendation that he be considered eligible for parole after serving six weeks of that sentence. The Court imposed a sentence in lieu thereof of 18 months with a recommendation that he serve 7 months before being eligible for parole.

There are virtually no redeeming features for the respondent in this case. He had a bad criminal history including convictions for assault and had consistently disregarded the chances for rehabilitation offered by probation and community service. The plea of guilty was on the morning of the trial and the offence was committed whilst he was serving a suspended sentence for earlier assaults for which sentence had been imposed after breaches of probation and subsequently breaches of community service orders. It seems to us that a custodial sentence actually to be served was required in those circumstances notwithstanding the improvement as found by the learned sentencing Judge in his lifestyle and his relative youth. It may be that the learned sentencing Judge was unduly influenced by the fact that the respondent was fearful for his own safety at the time when he attacked the complainant but the circumstances that she was turning away from him and was a woman make this less than compelling. His Honour mentioned the respondent's consumption of alcohol and whilst it may be an explanation for unlawful conduct it is not an excuse and it is impermissible to make it one: R. v. Rosenberger C.A. No. 375 of 1994.

Since this is an Attorney-General's appeal the question is whether the sentence below ought to be interfered with. In R. v. Melano C.A. No. 393 of 1994 the Court sought to establish a proper approach to Attorney's appeals following the High Court decisions in Everett v. The Queen and Phillips v. The Queen (1994) 68 C.J.R. 875. The Court noted at p. 7 of its judgment:

"Unless the sentencing Judge has erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or inconsistency, the sentence he or she has imposed will be 'proper': cf. Griffiths v. R. (1977) 137 C.L.R. 293, 310, 327, 329-330; Everett and Phillips, per Brennan, Deane, Dawson and Gaudron JJ. at p. 3. Variation by this Court will not be justified in such circumstances, unless, perhaps, in exceptional circumstances; for example, to establish or alter a matter of principle or the sentencing range which is appropriate: cf. Everett and Phillips per McHugh J. at p. 9."

The court having noted that there was nothing exceptional in the facts of the case continued at p. 9:

"Accordingly, the question for this Court is whether the sentence imposed is outside the scope of a proper sentencing discretion."

The facts in Melano are of some assistance here. After something of scuffle the respondent struck the complainant on the right side of the head with a beer glass causing it to shatter. The complainant sustained serious lacerations to the side of his head. The respondent then struck him a second, less forceful, blow. The respondent was aged 26 years with a minor criminal history. He was single and had a good work history. He was convicted after a trial and was sentenced to 15 months imprisonment suspended after three months with an operational period of three years. The sentencing Judge had been favourably disposed to the respondent and treated the dispute as aggression between young males who had been drinking and between whom there had been some previous ill-will. The Court observed that it did not follow that there must in all circumstances be a period of actual incarceration where there were acts of brutal violence accompanied by serious injury and concluded that the respondent was young, well respected, a good worker with excellent prospects of rehabilitation and "[a]lthough close to the border line [was] not persuaded that the sentence imposed was not, in all the circumstances, proper".

The Court again in R. v. Jackson C.A. No. 276 of 1994 commented upon the circumstances which will cause the Court to interfere on an Attorney's appeal. The Chief Justice commented at p. 2 of his reasons that:

"In other than exceptional cases the Court will not vary the sentence on Attorney-General's appeal unless that sentence has to be regarded as 'outside the scope of a proper sentencing discretion'."

In that case the respondent was a young man aged 18 years who struggled with a 58 year old taxi driver and demanded his money.
He seized the complainant's wallet and ran off but was apprehended shortly afterwards. The complainant was not seriously injured except for a painful right shoulder for which physiotherapy treatment was sufficient. The respondent had a minor domestic violence assault conviction but otherwise was of good character. He gave an indication of an early plea of guilty and had spent a week in detention in the watchhouse. He was sentenced to 240 hours community service and no conviction was recorded. Davies and McPherson JJ.A concluded that the sentencing Judge erroneously took into account the respondent's sporting prowess and appearance together with the extent to which he was affected by alcohol when he committed the offence.
They considered that were it not for the mitigating factors of youth and an early plea of guilty and the fact that the complainant was not seriously injured, that the seriousness of the offence together with the existence of an earlier conviction would have required the imposition of a custodial term. They concluded that the discretion did not miscarry in imposing community service rather than a custodial term.

We are of the opinion that the learned sentencing Judge gave too much weight to the effect of alcohol on the respondent's conduct and that he was running away from and fearful of the pursuers from the party. He gave insufficient weight to the respondent's criminal history including that he was in breach of suspended sentences imposed for unlawful assaults which had been imposed only some 7 months prior to these events. His Honour took too favourable view of the plea of guilty which came late in the day, and that he had a job and dependents and prospects of rehabilitation. We are of the opinion that the learned sentencing Judge ought to have imposed a period of imprisonment. He imposed a sentence which was outside the scope of a proper sentencing discretion.

We would allow the appeal, set aside the sentence imposed below and in lieu thereof impose a sentence of 18 months imprisonment.

It is necessary to mention that the following day his
Honour dealt with the breach of the terms of the suspended
sentence pursuant to s. 146 of the Penalties and Sentences Act.
He ordered that he serve the entirety of those suspended

sentences of 3 months and 6 months concurrently from 9 December 1994. The sentence which we have proposed with respect to this appeal ought to be cumulative upon the expiration of those sentences. Pursuant to s. 157 of the Penalties and Sentences Act we would recommend that he be eligible for consideration for parole on 9 December 1995.