R v Moore

[1994] QCA 294

IN THE COURT OF APPEAL [1994] QCA 294

SUPREME COURT OF QUEENSLAND

C.A. No. 145 of 1994

Brisbane

[R v. Moore]

T H E Q U E E N

v.

ANTHONY MICHAEL MOORE

(Applicant)

Davies JA
McPherson JA

Ambrose J

Judgment delivered 15/08/1994

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - indecent assault - grievous bodily harm - significant consumption of alcohol prior to offences - complainant spat in face of applicant - excessive violent reaction - applicant older and larger than complainant - previous criminal offences - guilty plea.

SENTENCE - 5 years imprisonment - not excessive.

Counsel:	Ms K McGinness for the appellant Mr P Callaghan for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing Date:1 August, 1994

JUDGMENT OF THE COURT

Judgment delivered : 15/08/1994
This is an application for leave to appeal against sentences imposed on 6 April 1994 on the ground that they were manifestly excessive.
The applicant pleaded guilty to one count of indecent assault and a second count of unlawfully doing grievous bodily harm to a 17 year old girl whom he had met at a party, which they both attended and which continued on into the early hours of the morning.
The applicant and the complainant had apparently engaged in "some limited romantic interludes at the party" before they left together at 2 a.m. or 3 a.m. They then proceeded to a garage where apparently they engaged in some sort of sexual activity, one with the other, until after being fondled in a way which did not appeal to her the complainant spat in the face of the applicant. The applicant reacted by hitting the complainant about the face and head and also by punching her in the region of her vagina.
The applicant then returned to the party where he admitted that he "gave the complainant three or four king hits". He explained that he had hit her because she spat in his face in the course of their encounter which had apparently commenced with her consent.

Another guest of the party later came upon the complainant crouching in bushes and totally naked. She appeared then to be severely injured. Upon a medical examination both eyes were closed and grossly bruised. There were fresh bruises covering each of her cheeks. Both lips were swollen and to the right of her mouth was a bruise approximately 7 cm by 2 cm. On the angle of her left jaw there was another bruise 12 cm by 10 cm. Her mouth appeared to be misshapen. She sustained a bilateral fractured mandible. She underwent an operation and her fractures were reduced. She has been left with paraesthesia of the left mental nerve distribution. She will always have permanent numbness to her chin and below her lip on the left hand side of the face.

The complainant was also examined by a gynaecologist. He found no abdominal bruising, but the genitals showed bruising around the lower vulval area with some swelling around the carunculous. There was old blood discovered along the entire vaginal length. There was tenderness found on moving the cervix and some tenderness to the left pelvic adnexa.

In the course of police investigation into the circumstances of the complainants injury the applicant initially denied any involvement, asserting that he hardly knew the complainant and had no dealings with her. Ultimately, however, the applicant admitted his guilt. He was arrested and spent about six months in custody before being sentenced.
The complainant has been left with problems in the mouth and jaw area. Her capacity to eat has been affected and she experiences pain whenever she eats anything that is not soft. She has suffered psychological trauma as the result of the injuries inflicted upon her by the applicant in the course of their sexual encounter which, at least at the outset, was consensual.

The complainant at the time of the offences was a slightly built girl 17 years of age. She weighed about 56 kilograms.

The applicant at the material times was 28 years of age and significantly bigger and stronger than the complainant. He had a significant history of criminal offences prior to the commission of this offence. Included in those offences were convictions for assault: one related to an assault in February 1990; the next three related to offences on 26 May 1991; the last two related to offences in February 1992.

In the course of imposing concurrent sentences upon the two charges, the learned sentencing judge observed:

"I impose the one sentence with respect to both offences. It seems to me, the two offences are parts of the one series of actions which occurred after the young woman had rejected any further sexual involvement with you."

The sentences of imprisonment for five years were then imposed, the learned judge declaring that the period spent by the applicant in pre-sentence custody in relation to the charges was to be treated as service in part of the imprisonment then imposed.

The learned sentence judge recommended that while in custody the applicant receive appropriate treatment and counselling having regard to the offences in respect of which imprisonment was imposed, in particular he indicated that the prison authorities take necessary steps to ensure that the applicant was suitable for release before he was released to perform or to take part in a community based program.
For the applicant it was conceded that having regard to other sentences imposed for similar offences the appropriate range for the offences to which he pleaded guilty was between 3 and 5 years.

It was contended that both applicant and complainant had consumed significant quantities of alcohol prior to the offences. They had left the party and engaged in consensual sexual activity and the violence which the applicant accorded to the complainant resulted directly from her spitting in his face.

It was contended on behalf of the applicant that his attack upon the complainant was not premeditated, but rather occurred on the spur of the moment and should be regarded as an over- reaction to the insult the complainant offered him by spitting in his face, and that while undoubtedly his reaction went far beyond what was excusable, nevertheless, it warranted a term of imprisonment only at the lower end or middle of the range of from 3 to 5 years.

The learned sentencing judge took into account that the applicant's plea of guilty made it unnecessary for the complainant to give evidence about the matters that had caused her so much physical pain and psychological damage. It also saved the state the expense of a trial.
In imposing the sentence, the learned sentencing judge said that the period of imprisonment imposed was intended to act as a deterrent to the applicant and to others who might contemplate the commission of similar offences.

The sentence imposed upon the applicant was certainly at the upper limit of the range of sentences for offences of this kind. The force applied to the head of the complainant and as well to the area of her genitals was very significant. Stated shortly, the offences involved brutality on the part of the applicant, a mature man 28 years of age, to a 17 year old girl who was much smaller than him. Although both the applicant and the complainant had consumed very significant quantities of alcohol preceding the commission of the offences, that circumstance, while perhaps explaining the events which led up to the offences, does not reduce the applicant's culpability for the excessive force he applied to the complainant. That force is consistent only with a willingness to inflict upon her serious injuries out of all proportion to the insult she offered him by spitting in his face in the course of whatever were the sexual advances he was then making to her. Although at the upper end of the range of appropriate sentence for this type of offence it has not been demonstrated that the sentence imposed is manifestly excessive.

The application for leave to appeal against sentence is therefore refused.