R v Ward
[2003] QDC 5
•12 February 2003
DISTRICT COURT OF QUEENSLAND
CITATION:
R v. Ward [2003] QDC 005
PARTIES:
THE QUEEN (Applicant)
AND
ROBERT WILLIAM WARD (Respondent)
FILE NO/S:
400/02
DIVISION:
Criminal
PROCEEDING:
Application to re-open sentence
ORIGINATING COURT:
District Court
DELIVERED ON:
12 February 2003
DELIVERED AT:
Maroochydore
HEARING DATE:
6 February 2003
JUDGE:
Judge J.M. Robertson
ORDER:
Application dismissed.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – Applcn to re-open – def punched complainant in eye causing GBH – no evidence of permanent injury at sentence, but subsequently available – wh original sentence decided on “clear factual error of substance” – discretion to re-open
Cases Judicially Considered:
R v. Amituanai (1995) 78 A Crim R 588
Davis (1999) 109 A Crim R 314Statutes Judicially Considered:
Penalties and Sentences Act 1992, ss.9(4)(c), 9(4)(d), 188(1)COUNSEL:
A. Stark (Solicitor) for the Applicant
D.N. Murray for the Respondent
SOLICITORS:
Director of Public Prosecutions for the Applicant
Ryan & Bosscher for the Respondent
This is an application by the Director for a re-opening of a sentencing procedure pursuant to s.188(1)(c) of the Penalties and Sentences Act 1992 which is in the following terms:
“188(1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal –
…
(c)imposed a sentence decided on a clear factual error of substance;
the court, whether or not differently constituted, may reopen the proceeding.”
There is a preliminary point which can be disposed of quickly. Section 188(5) is in these terms:
“188(5) The court may reopen the proceeding –
(a) on its own initiative at any time; or
(b) for a reopening under subsection (1) – on the application of a party to the proceeding made within –
(i) 28 days after the day the sentence was imposed; or
(ii) any further time the court may allow on application at any time; or
(c) for a reopening under subjection (2) – on the application of the prosecution made at any time, whether or not the appeal period under the Criminal Code, section 671(2) has expired.”
The parties have agreed on a chronology of events relevant to s.188(5):
Date of sentence: 28.10.2002
Date of original application to re-open: 28.11.2002
The applicant is therefore three days out of time. The reasons for the delay are set out below. No objection is taken by Mr Murray for the respondent to the extension of time and I formally order that the time for making the application be extended until the 28th November 2002.
Introduction
The applicant submits that the sentence imposed on the 28th October 2002 was decided on a clear factual error of substance in that the complainant has in fact suffered a permanent disability as a result of the offence or is likely to suffer a permanent injury to her eye.
The respondent pleaded guilty to causing grievous bodily harm to the complainant before me on the 28th October 2002. The sentencing hearing transcript is annexed to these reasons. In summary, at the time of the offence on 27th March 2002 the respondent was 33 and the complainant 48. They had been in a relationship for some months until mid-February 2002; and had renewed contact on the 19th March 2002. On the evening of the 27th March 2002, he stayed at her unit. There were some arguments and in the morning, there was another argument as a result of which he pinned her on her back on the bed. He was angry, and abused her. He then punched her once in her left eye, which caused her immediate and intense pain. She was later treated at the Nambour Hospital for a compound blow out fracture of her left orbit.
The Issue
At the sentencing hearing, the applicant did not allege that the complainant had suffered or was likely to suffer any permanent injury. The extent of injury to the victim of violence is a relevant matter to penalty. In R v. Amituanai (1995) 78 A Crim R 588 Pincus JA said (at 589):
“[A]n offender will find that his punishment may depend on the extent of the damage the victim happens to sustain. That is, the risk that a blow which might by good luck have caused little damage in fact has catastrophic results, as it had here, is one which is shared by the victim and the offender.”
During the sentencing submission, the issue of effect on the victim was raised. At page 5 line 11, I asked Mr Stark if any victim impact statement had been provided. He responded:
“… I have not been provided with any material. Our office has contacted the complainant. I have no notes in respect of such contact.”
Mr Stark, who appears now for the applicant and appeared then on sentence, submits that the transcript is in error and should read:
“If our office has contacted the complainant, I have no notes in respect of such contact.”
In fact, Mr Stark did not know of any contact, and I accept that the transcript is in error.
During Mr Murray’s submission, I raised the issue again. At page 9 line 40, the following exchange took place:
“HIS HONOUR: All right. Well, on the basis of the material that’s been placed before me I couldn’t find that there’s any permanent disability.
MR MURRAY: Yes.
HIS HONOUR: There’s no up-to-date report. There’s no victim impact statement, so I’ll accept that.”
Mr Stark also made an oblique reference to the impact on the complainant in reply at page 11.
Mr Stark has now discovered that there was no contact between the victim services officer in the D.P.P. and the complainant prior to sentence, and nor was she aware of the hearing. It is not necessary for me to go into great detail, however apparently the complainant moved at or soon after the date of the assault to the Gold Coast, and correspondence to her Sunshine Coast residence was returned unclaimed. There was apparently a breakdown in communication between the D.P.P. in Maroochydore and the police officer which lead to her not being informed of the hearing. She heard about it from a mutual friend, and immediately contacted the D.P.P. on the 4th November 2002. She provided a victim impact statement which reveals a quite different scenario from the one which formed the basis of sentence. The lack of any victim impact statement, and the lack of evidence suggesting permanent injury were significant factors in determining the sentence I imposed. I said this:
“It is very fortunate for you that I have no evidence before me that she has suffered any permanent injury to her eye, otherwise I would send you to gaol, because Mr Murray referred to that authority of Amituanai, which is binding authority, and that is authority for the proposition that the gravity of the punishment will often be determined by the seriousness of the injury and the outcome to the victim. This lady has chosen not to provide a victim impact statement and apparently you have seen her recently and she appears to have recovered.”
The medical evidence
At sentence, a number of medical reports were tendered. Obviously, there was no issue that the injury sustained amounted to grievous bodily harm. The only report of significance to this issue is the report of Dr Aquilina dated the 17th May 2002. In part he said:
“She was seen on 2 April 2002 by Dr John Cosson, the on call maxillofacial surgery registrar, who noted she was a 48 year old lady who had an alleged assault one week previously, with a possible loss of consciousness at that time. Her history was also significant for continuing visual symptoms of blurred vision and diplopia and she had a numb upper lip on the left hand side. On examination Dr Cosson noted she had resolving periorbital haematoma in the left eye, the left pupil was dilated but reactive to light, but she was unable to open her eye voluntarily. She was able to look left and right but the globe was restricted in upward and downward gaze.
She was seen by the ophthalmologists at the Eye Clinic who noted she had a visual acuity of 6/5 in the right eye and 6/9 in the left eye with the possibility of a third cranial nerve lesion although they were not particularly confident of this diagnosis. She was then reviewed by Dr Sullivan, consultant ophthalmologist, who thought a third nerve palsy was unlikely and the mobility disturbance of her left eye was most probably related to entrapment of her extraocular muscles in the fracture.
I attended the patient on 8 April 2002 and took her to theatre where, under a general anaesthetic, we explored her orbital floor and reconstructed the orbital floor defect. At operation a large defect in the left orbital floor was noted and this was repaired with a Lactisorb sheet.
She made a good postoperative recovery and was discharged from hospital on 9 April 2002.
She was reviewed in the Maxillofacial Surgery Outpatients Clinic on 15 April 2002 where it was noted she was still complaining of diplopia and paraesthesia over the left maxilla in the distribution of the infraorbital nerve. It was also noted she still had ptosis of the left upper lid and diplopia on downward gaze but her eye movements appeared to be normal. She was brought back on 22 April 2002 for further review at which time she was still complaining of paraesthesia in the left maxilla and left upper lip but her ptosis of the left upper lid had improved. She still complained of diplopia in all gazes but her eye movements were essentially normal and it was thought this was likely to be a coordination problem. She was also referred for further ophthalmology review but at the date of dictation, this has not occurred.
The nature of this injury is that it would have left her with serious disfigurement and, if untreated, would have most likely caused a permanent injury, specifically enophthalmos and restriction in eye movements, resulting in continued diplopia.”
Since receipt of the complainant’s victim impact statement, the D.P.P. has undertaken further investigations and obtained up to date medical reports. The first of significance is the report of Dr Park dated the 21st November 2002. He sets out the complainant’s history subsequent to the events described by Dr Aquilina:
“This patient was referred to Dr Tim Sullivan’s Clinic on 28 June 2002 by Dr Lynham concerning her left orbital floor and medial wall fracture. This was the result of an alleged assault on 27 March 2002 when she presented to Nambour Hospital suffering from left hyphaema, mydriasis and a blow-out fracture of the left orbital floor and medial wall of the left orbit. She complained of difficulty on looking down due to double vision as well as a problem with enophthalmos.
She was seen by Dr Tim Sullivan in his clinic on 28 June 2002. Examination revealed 3mm of enophthalmos on the left side. Ocular movement examination revealed limitation of upgaze as well as downgaze. Left mydriasis was noted during examination. Binocular single vision testing revealed central binocular single vision which was reduced with diplopia outside central 30°. On forced duction testing there was some restriction in upgaze. Her visual acuity was 6/4-2 in the right eye and 6/6-1 in the left eye.
She underwent repair of the fracture of the left orbital floor and medial wall by Dr Tim Sullivan under general anaesthetic on 10 September 2002. During the operation it was noted that she had fractures of the orbital floor and medial wall of the orbit on the left side. Medpore plates were fashioned so that they could be placed into the fracture defect both inferiorly and medially.
Postoperatively she was reviewed in Dr Tim Sullivan’s Clinic on 4 October 2002 where she complained of no change in the diplopia. Examination revealed limitation in both upgaze and downgaze with binocular single vision present centrally. Exophthalmometry revealed resolution of the enophthalmos. Visual acuity was 6/6+1 in the right eye and 6/5-1 in the left eye. Dr Sullivan felt that there was improvement in the enophthalmos, but with the persisting small central binocular single vision it was decided to review her in 3 months’ time to assess her progress at that time.
Further time will be required to assess the restriction in eye movement and the diplopia. The injuries seen in this patient are consistent with an alleged assault.”
The final report is of Dr Tim Sullivan dated the 29th January 2003:
“Further to the note provided to your service by my Registrar, Dr. Joseph Park, on 21st November 2002 [the complainant] was reassessed at the Eyelid, Lacrimal & Orbital Clinic today. She has undergone two major surgical procedures to help correct the orbital fractures involving the medial wall (inner wall) and floor of the left eye socket. Preoperatively she was having problems with altered sensation on the left side of her face due to infraorbital nerve damage, double vision due to entrapment of muscles in the eye socket in the fracture sites and enophthalmos (which refers to a backwards displacement of the eyeball). The surgery performed under my care on 10th September 2002 demonstrated large residual fractures of the medial wall and floor with prolapsed orbital contents entering these fracture sites. Orbital contents were reposited into the orbital cavity and the fractures covered with porous polyethylene (Medpor) implants.
Since that time, she has had some resolution of the postoperative swelling and now complains of residual problems with altered sensation on the left side of the face, continuing headaches and difficulty with double vision, particularly in downgaze. She also complains of some difficulty with flashing lights in the left eye.
Examination today revealed a visual acuity of 6/5 (R) and 6/6 (L). Examination of her extraocular movements shows normal movement in the right eye with restricted movement in the extremities of gaze on the left. She also has a traumatic mydriasis where the left pupil is slightly larger than the right, presumably as a result of the trauma. Exophthalmometry (a measure of the forward protrusion of the eyeballs) demonstrates a very minor degree of residual left enophthalmos of probably less than 1mm.
Thus, she has had a good repair of restoring the eyeball to its normal position. She does however still have limitation of eye movements on the left and this results in her problem of double vision apart from in the straight ahead direction.
A formal field on binocular single vision was recorded today and this demonstrated single vision in the straight ahead position but double vision beyond 20° from the primary position in right gaze and below 15° in downgaze. One should be able to achieve a much wider field of single vision. Practically this causes her problems in reading, most simple walking tasks, especially stairs and judging depth. Given that her field of binocular single vision appears to have largely stabilised, it is unlikely she will obtain a further improvement. This means she will be left with a significant residual deficit in terms of function of the left eye, in particular co-ordinating with the right eye.
Examination of the rest of the eye demonstrated a small subconjunctival haemorrhage on the left nasal conjunctival tissue today. The significance of this is unclear. The rest of her examination appeared normal and she did not appear to have any retinal pathology to explain the flashing lights but this may need to be assessed formally by a retinal specialist for further comment on this area.
In summary, she still has significant problems with pain, headaches, double vision and altered sensation as a result of her injuries. She may require eye muscle surgery to help with her field of binocular single vision although this would need to be assessed by a strabismologist (eye muscle expert) and arrangements will be made for this. I have no doubt that this falls into the category of grievous bodily harm and hope that the court will take this into consideration.”
It follows that the complainant has in fact suffered a “significant residual deficit in terms of function of the left eye, in particular co-ordinating with the right eye.
There are two related issues for me to consider. Firstly, did I impose a sentence decided on a clear factual error of substance; and if yes to that question, should I in the exercise of the discretion conferred by s.188(1) re-open the proceeding.
The Law
Neither counsel was able to find any authority dealing with the issue raised on this application. Section 188(1) in its present form was inserted into the Penalties and Sentences Act in 1997. It was considered in Davis (1999) 109 A Crim R 314. As to what constitutes “a clear factual error of substance”, Thomas JA (with whom McMurdo P agreed) said (at 316-317):
“The use of the word “clear” suggests that the court should not act unless the error is clearly shown, and the words “of substance” suggest that this exceptional procedure should not be invoked in relation to pettifogging points or relatively minor mistakes. Those words suggest to me the need for something of sufficient importance as to be likely to call for some material alteration of the sentence.”
The only real issue in that case was whether or not the sentence imposed had been decided on a clear factual error of substance, so the judgments do not concentrate on how the discretion to re-open should be constrained in the event that the Court decides there was a clear factual error of substance. At page 317 of his judgment in Davis, Thomas JA said:
“The pursuit of perfection in a system run by human agents must be balanced against the desirability of finality of litigation and the undesirability of placing all offenders in a position where they have never finally been sentenced.”
In the circumstances here, particularly having regard to s.9(4)(c) and (d) of the Penalties and Sentences Act, the balancing exercise should also take into account the personal circumstances of the victim.
Conclusion
I am satisfied that in imposing sentence on the 28th October 2002 I did so on the basis of a clear factual error of substance; namely the extent of permanent disability suffered by the complainant as a consequence of the offence. However, I decline to re-open the sentence in the exercise of discretion.
The applicant could have pursued this important issue on the basis of the inconclusive nature of Dr Aquilina’s report dated the 17th May 2002 which was tendered at the sentencing hearing on the 28th October 2002. It did not need the victim impact statement to be alerted to the possibility at least of on-going problems for the complainant. It chose not to pursue these enquiries. Secondly, the applicant’s submission as to the appropriate sentence in the event of a re-opening is the same as its submission made at the original hearing where I proceeded on the incorrect factual basis that there was no permanent disability. I am not being critical of the applicant in saying that if it had thought my original sentence unduly lenient, it could have recommended an appeal to the Attorney-General. Finally, the Court report placed before me indicates that the respondent is performing extremely well under the stringent conditions of the intensive correction order. I do not place much emphasis on the delay. This has come about for a number of reasons. The applicant was obliged to undertake further medical investigation, and the intervention of the Christmas break, made it impossible to bring the matter on earlier. However, in that time the respondent has carried out his sentence with diligence and, in my opinion, that is a factor relevant to the exercise of my discretion not to re-open.
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