R v Mlinarek & Ross

[1992] QCA 273

R v D F MLINAREK & ANOR	[1992] QCA 273
COURT: IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND BRISBANE Appeal No. 194 of 1992 Appeal No. 192 of 1992 [R v D F MLINAREK & ANOR] T H E Q U E E N v. DAVID FRANK MLINAREK and GREGORY ROSS (Applicants) __________________________________________________ Mr. Justice Davies Mr. Justice McPherson Mr. Justice Thomas _____________________________________________________ Hearing date: 13th August, 1992
#DATE: 27:08:1992

CWDS:

CATCHWORDS: Criminal law - evidence on sentence - grievous bodily harm.

JUDGE1:
Judgment delivered 27/08/1992
JUDGMENT OF THE COURT

MINUTE OF ORDER: Applications refused.

JUDGMENT OF THE COURT

Delivered the 27th day of August, 1992

These are applications for leave to appeal against sentences imposed in the

District Court. An application by Ross for extension of time to appeal against conviction was dismissed on 13th August, 1992.

Both were charged on the one indictment with doing grievous bodily harm to

David Dryden. Mlinarek pleaded guilty and Ross not guilty. Mlinarek was granted bail at various times during the trial, and immediately after the jury found Ross guilty of the offence he consented through counsel to be sentenced at the same time as Ross.

The sentencing plainly proceeded on the basis that His Honour would act on the evidence given in Ross' trial, subject of course to any further details or qualifications raised by counsel. There was nothing necessarily inappropriate in that course. Section 650 of the Code provides that the court may receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed or order to be made. It is the practice in Queensland to accept statements from the Bar table provided they are not controverted or put in issue by the opponent, and depositions or other statements of evidence may be received. (R. v. Clayton (1989) 2 Qd.R. 439).

It is of course an error for a sentencing Judge, in deciding a contested fact, to use a view of the complainant's credibility formed in a previous case in which allegations against the prisoner were not raised or tested (R. v. Jobson (1989) 2 Qd.R. 464, 469) but nothing like that occurred on this occasion. There was no contest on credit or on primary facts. Mlinarek through his counsel must be taken to have consented to the use of the trial evidence. He used the opportunity to reduce the impact of that evidence to the extent consistent with his instructions. Counsel expressly noted that "you have heard the evidence, Your Honour" and went on to cite mitigating factors such as initial provocative conduct by the complainant, the fact that when Mlinarek left the scene he did not realise that the complainant was badly hurt, the fact that Mlinarek had consumed a large quantity of liquor, and other circumstances. There is no reason to believe that any miscarriage of justice occurred from the procedure that was followed.

We turn to the question whether the sentences that were imposed were

manifestly excessive.
The complainant suffered serious brain damage. He was in a coma for twenty hours and in hospital for two weeks. His jaw was fractured and has required surgical repair. He will need further surgery in the future. His short term memory has been affected adversely. He has been forced to give up his employment in the export field and cannot do a labouring job because of his disabilities. His personality has changed; he lacks motivation and energy. His vision is impaired. His neurologist is pessimistic about the degree of his eventual recovery.

Mlinarek was sentenced to four years imprisonment with a recommendation for

consideration of parole after eighteen months; and Ross was sentenced to
three years imprisonment with a recommendation for consideration of parole

after twelve months.

There were eye witnesses, principally Mr. Ramplin and Constable Jobson.

Their evidence shows that in the early hours of Thursday, 14th February, 1991
a group of five people was seen to go onto the beach near Grundy's Overpass.
Two of them (who may be inferred to have been the complainant and Mlinarek)
took their shirts off and started to push and shove. Ramplin did not see the
next part of the fight, but there is other evidence of blows being struck to
the complainant, and of the fact that Mlinarek did not suffer any injury.
The next observation of Ramplin was when the complainant was on the ground
being held by another person (Ross) while Mlinarek struck the complainant's
face. The other members of the group had wandered away. Ross was holding
the complainant around the shoulder area whilst Mlinarek was striking him in
the face and chest with a closed fist. There were "a lot of punches". Ross
was essentially propping him up so that Mlinarek could punch him. He was
holding him "so he wouldn't go anywhere". When Ross let go Mlinarek stepped
in and kicked him. He did so a number of times, four or five at most, in the
upper chest and head area. Mlinarek then retrieved his own shirt and washed
his hands at a tap, while Ross went through the complainant's pockets. They
then walked away.Further details, some of them self-serving, appear in
statements made by Mlinarek to the police. These include the statement that
the complainant had been "hassling" him at the front of a night club and that
he, Mlinarek, had walked away. The complainant had followed him to the
beach. He admitted hitting him three times, and, in relation to the
allegation of kicking, replied "you know what it's like when you're fighting.
I kicked him. It was either him or me." This statement was not video
recorded, and, in the course of the video interview, he admitted to three
blows but denied kicking the complainant. However, in the end having regard
to the eye witness evidence of the kicking there is no doubt that Mlinarek
was the person responsible for kicking the complainant, whether or not he
admitted to it.

On behalf of Ross it was submitted that his role was minimal. However a reading of the evidence shows that submission to be without merit. It is true that his role was one of aiding the principal fighter, but it was a significant role in the middle stages of the incident.

At the time of sentence Mlinarek was aged 22 and his only previous

conviction was for possession of a utensil for smoking a drug. Ross was aged

23 and had convictions for stealing, possession of property and vagrancy.

The learned sentencing Judge was plainly aware of the relevant points of

mitigation that could be urged on behalf of Mlinarek, expressing them as

follows:-

"...there has been an early plea; apart from this and some minor

convictions he has never been involved in criminal conduct; it is quite out
of character, this offence; it is an appropriate case in which an early
recommendation may properly be made with regard to parole, having regard to
his personal circumstances which show a less than satisfactory upbringing
with his parents separating when he was 11, he pushing on with his education
while living apart from his family; he is almost fully qualified as a
carpenter; he is a family man and indeed has a four and a half year old
daughter which he supports and he is presently in work; he has references
from six people who speak highly of him which emphasises the fact that this
was out of character; there was provocation by the complainant which led to
this incident; he has co-operated with the authorities to the extent of
providing a written statement to the police during the trial of his
co-accused; he was unaware of how badly hurt the complainant was as a result

of his actions; and he had consumed a large quantity of liquor."

It is also true that Mlinarek was appreciably smaller than the complainant.

However, in our view the head sentence is well within a proper range for a conviction of grievous bodily harm resulting from sustained violence producing consequences as serious as those in the present case. His Honour gave effect to the above factors and circumstances by making an early recommendation for parole. In all the circumstances we are unable to see any basis upon which the sentence is excessive.

Similarly in relation to Ross, his less active participation has been taken

into account and there is no disparity having regard to their different

circumstances.

Both applications should be refused.

ORDER:

Counsel: S. Di Carlo for the appellant Mlinarek

P. Alcorn for the appellant Ross
D. Wright for the Crown

Solicitors: Michael Twohill, Solicitors for the appellant Mlinarek

Legal Aid Office for the appellant Ross
Director of Prosecutions for the Crown