R v Kynuna

[1992] QCA 306

COURT OF APPEAL  [1992] QCA 306

MACROSSAN CJ
PINCUS JA
MOYNIHAN J

CA No 210 of 1992

THE QUEEN

v.

GREGORY DAVID KYNUNA  Applicant

BRISBANE

..DATE 08/09/92

JUDGMENT

080992 D.1
THE CHIEF JUSTICE:  The applicant applies for leave to appeal against his sentence, he having pleaded guilty to a charge of unlawfully doing grievous bodily harm to a named person, a woman.

He was sentenced to a custodial term of five years.  The learned sentencing Judge in ordering that period of imprisonment said that he took into account the period that the applicant had been in custody and he added a specific recommendation that the applicant receive treatment of the kind referred to in a pre-sentence report.

The period in custody attributable, apparently, to the present offence, was six months.  Taking this into account in the usual way would mean a custodial term, in effect, of some six years was imposed.

The woman who was assaulted and suffered the grievous bodily harm was someone who was known to the applicant previously.  The facts are outlined in the submissions put before the Court on behalf of the applicant.

The applicant went to this woman’s house at about 11 pm.  He had previously had a relationship with her which had broken up.  He gained entry to her house;  went to the room where she was then sleeping, and commenced his assault upon her.  He punched her with his fist to her face, then later he continued the assault with a stick.  He struck her around the head, face, back and body.  She was knocked to the ground and the accused kicked her.  At one stage it is said that the applicant remarked, "I’m going to kill you, Patsy.", addressing the woman

Her injuries were serious and they appear in the appeal record.  They were extensive and involved a number of areas of the woman’s head, face, left forearm, shoulder and chest.  Selecting from a lengthy list, amongst other things, we see that she suffered a perforated right ear drum and quite a number of cuts and lacerations.  there was extensive bruising.  When she was conveyed to hospital she had a critical blood loss and needed a transfusion of 3 units.

Her left arm was broken in severe fashion, and she had to be operated on twice.  If the arm had not received that treatment it is said that she would have been left with a very significant permanent disability.  Even with treatment it is obvious that she was very severely injured.

Counsel appearing for the applicant points to the applicant’s guilty plea entered at an early stage, and as well, drew the Court’s attention to the mental condition of the applicant.  It is said that the applicant suffers from an organic brain syndrome.  This can be assessed by reference to the reports which were before the learned sentencing Judge, a pre-sentence report from a departmental officer, and in addition reports from a consultant psychiatrist, a further psychiatrist and a consultant neurologist.

The sentencing Judge was accordingly in a good position to assess the extent of the mental condition of the applicant, and to arrive at a conclusion as to how he should act in consequence of that.

For the Crown, it is emphasised that any relationship that had existed between the applicant and the complainant had been finished for some time.  The complainant was asleep at the time that the applicant gained entry to her room, and carried out his assault.  It would seem that the applicant was in an argumentative mood, determined to cause mischief when he called at the complainant’s house.  The last matter seems obvious enough.

Certainly, it is a significant custodial term which has been imposed, but then the assault in question causing grievous bodily harm, as it did, was a severe one - indeed, a savage one, it could fairly be said.

The applicant has had a number of previous convictions.  It is not a short criminal history by any means, and included amongst it in a list of offences starting in the year 1983 which there appear, we see not only various offences of dishonesty and some relating to prohibited plants, but assaults as well.

In 1987, having broken and entered a house - a dwelling house in the night-time with intent, he carried out an unlawful assault of a sexual nature on a female under the age of 17 in that house.  He was sentenced to 3 years imprisonment with hard labour in respect of the breaking and entering with intent, and 18 months in respect of the assault of a sexual nature on the female.  There was apparently more than one assault;  they were multiple assaults, in fact.

Again, in December of 1990, he was fined for what is described as an aggravated assault on a female, and in January 1991, for an assault occasioning bodily harm on a female he was sentenced to 4 months imprisonment.  This was then a significant prior criminal history which the learned sentencing Judge had to take into account.

The applicant is 27 years of age.  We have looked also - our attention having been directed to them - at the reports which had been placed before the sentencing Judge.  In my opinion, the nature of the assault and its circumstances were such that it could not be said that the sentence imposed was manifestly excessive, although it was undoubtedly a heavy sentence.

Taking into account the additional matters which appear in the reports to which I have just referred, there is no reason to conclude they assist the applicant in any particular way, relevant for present purposes.  It seems from those reports that the applicant is, indeed, likely to re-offend in a somewhat similar way, whatever his circumstances.  The interests of society would not seem to call for a reduction in what would otherwise be an appropriate sentence to pass upon the applicant.

I note, once again, that the sentencing Judge recommended that the applicant receive treatment of the kind referred to in the pre-sentence reports which were before him.  For myself, I would emphasise the desirability of that, but so far as the application for leave is concerned, in the circumstances I would refuse it.

PINCUS JA:  I agree.

MOYNIHAN J:  So do I.

THE CHIEF JUSTICE:  The application is refused.