R v Rosenthal

[1997] QCA 81

[1997] QCA 081

COURT OF APPEAL
MACROSSAN CJ
DAVIES JA

McPHERSON JA

CA No 508 of 1996
THE QUEEN
v.

LINDSAY JAMES ROSENTHAL Applicant

BRISBANE

..DATE 25/02/97

JUDGMENT offences occurring in May of 1996, the more serious one being robbery with personal violence. What can be described as the lesser offence was one of breaking, entering and stealing for which the applicant was sentenced to a term of imprisonment of nine months to be served concurrently with the major matter. For the robbery the sentence imposed was one of six years' imprisonment, and there was no recommendation for consideration for parole given. The fact that the lesser offence was dealt with at the same time has some, but of course not a great deal of significance in considering this application which relates to the major penalty alone.

The facts that were involved were dealt with fairly fully by the learned sentencing judge in his remarks. He was concerned with the applicant who was 25 years of age at the time the offence was committed. The complainant's version of events - and the complainant did not have a very exact recollection of the total episode - was one that was at some variance with that given by the applicant.

Turning to the applicant's account then, the judge sets this out: he said that the applicant met the complainant somewhere in the area of the Valley in Brisbane. The two of them entered into an arrangement whereby the complainant, who was a male, would have sex with him for the payment of $100. This transaction was carried out, but the applicant says that the complainant then refused to pay for the sexual services provided. The applicant pursued the complainant down Brunswick Street, caught him and assaulted him. He did this

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by hitting him over the head with a rum bottle and then
punching him in the face four or five times and kicking him
in the face five or six times while he was on the ground. It
is not suggested that the complainant offered any resistance
to the applicant's attack. The applicant then took the

complainant's wallet containing $30 and his watch.

The complainant was very seriously injured. The sentencing
judge says the photographs, Exhibit 2, which this Court also
has seen, graphically depict the nature and extent of the
complainant's injuries and he said the photographs speak for themselves. The judge summarised the effect of the injuries that appeared in the photographs and that otherwise were
described in the medical report by saying that the complainant

was brutally and severely assaulted in the region of the face

and head. He experienced these injuries: he had a laforte -
that is not exactly explained - 1 and 2 with bilateral
stigmatic facial fractures. That is as quoted in the remarks
below. He was taken to the operating theatre. Multiple
facial incisions were made with the object of reducing the injuries using mini plates, and without that treatment the injury, according to the report, would have caused permanent
injury to health as the malocclusion concomitant with this
type of injury would have precluded normal eating. The report

ends up saying, "A permanent alteration of contour to this

patient's face has resulted."

The sentencing judge said that the applicant at first tried to avoid detection but he was located, and after an initial denial agreed to be interviewed, and in the course of that

a record was taken which included full admissions. The

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applicant also said that he got from the complainant after
the attack the complainant's keycard PIN number, but
apparently what he got was a number that was false and
inoperative. The applicant was unable to use it, although

he attempted to use it to his advantage.

The applicant is a long-term drug addict in accordance with
the judge's description. It was said he was under the
influence of drugs on the night in question. He has had a
troubled marriage but he is back with his wife. He has a
criminal history which commences in the Children's Court in
Cairns. One need not delay too much about that in the first
entry or so, but we do see that in February of 1996
in the Magistrates Court at Brisbane the applicant was dealt
with for unlawful assault, and for wilful and unlawful
destruction of property. It is indicated in the record that
the assault on that occasion consisted of a threat rather
than actual violence applied to the person, but on that
occasion the applicant was sentenced to a term of
imprisonment of three months to be suspended after one
month. One feature that is relevant is that the sentence on

that occasion, in February of 1996, which dealt with events of February of 1996 was just some few months before the principal offence with which we are concerned.

Over the years the applicant has thus had the benefit of a
suspended sentence and earlier than that of a community
service order. The criminal history also shows a fine option
order which was breached, and accordingly the history had some

relevance for the sentencing judge in this case. There were

other charges for which he was dealt with in the District

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Court, but although those other offences I now refer to
occurred prior to the date of the present offences, he was not

dealt with for them until 24 June 1996.

The judge in sentencing summarised matters by saying that the
assault was of a most brutal and savage nature; that one of
the worst features of the case was the applicant's leaving the

complainant for dead, as it were. Here the judge referred to

the applicant's fear later expressed to the police, or made
apparent to the police, that the complainant's life might have
been endangered by the applicant's actions.

The judge said he was making every allowance for the mitigating factors which existed, including his eventual cooperation with the police and his early plea, but he thought, nevertheless, that the appropriate sentence was one of six years' imprisonment, unaccompanied by any recommendation for early parole. He imposed, as I have already said, a sentence of nine months for the breaking and entering offence, which fell to be dealt with on the same occasion and that was made concurrent. The order then made due allowance for the period spent in custody arising out of the current proceedings.

It is not particularly relevant to mention, but for
completeness it can be added that the applicant was in breach
on the suspended sentence, the one to which I have already
referred, and it was ordered that that suspended period of two
months should be enforced, once again in a term which would be

served concurrently.

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We were referred to a number of comparative sentences in the course of the submissions made by counsel for the applicant. In the end, as is always the case, the particular case itself
on its own facts has to be considered. Having listened

carefully to what counsel for the applicant has submitted, I

have to say that I am not left with the impression that it
can be asserted that the sentence imposed in the present case
was manifestly excessive or called for interference. The
savageness of the attack and the grossness of the injuries
inflicted, as well as the existence of some criminal record,
clearly called for the imposition of a substantial sentence
and the judge was within limits, in my opinion, in imposing

the sentence that he did and I would refuse the application.

DAVIES JA: I agree.

McPHERSON JA: I agree.

THE CHIEF JUSTICE: The application is refused.

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