A-G’s 2nd bite of the cherry

R v Brown; ex parte A-G (Qld) [2009] QCA 342

The Attorney General appealed the sentence imposed on a plea of guilty by the sentencing judge who ordered six years concurrent imprisonment on each count of unlawful wounding and lesser concurrent terms of imprisonment in respect of the remaining offences.

The indictments were for burglary and stealing on 20 April 2005; unlawfully supplying the dangerous drug cocaine on 17 April 2007; stealing on 8 July 2007; falsely representing himself to be a police officer with intent to defraud on 8 July 2007; and three counts of unlawfully wounding a 10 year old child on unknown dates between 30 April and 4 July 2007. Brown also pleaded guilty to two summary offences: failing to take reasonable care and precaution in respect of a syringe or needle on 8 July 2007; and possessing a dangerous drug, flunitrazepam, on 8 July 2007.

The appeal was filed before the decision in R v Lacey; ex parte A-G (Qld) )[1]. The court had opportunity to review Lacey, which it did and dismissed the appeal primarily on the basis the sentence imposed was in terms of the prosecutor’s submissions on the plea before the sentencing judge.

Her Honour McMurdo P delivered the judgment, with whom Muir and Fraser JJA concurred as follows:

[37] The judge asked the prosecutor to find comparable cases involving the wounding of a child by an adult, even if there were none involving an adult injecting a child with drugs. The judge invited the prosecutor to demonstrate that a sentence of four to five years imprisonment was appropriate for the wounding offences and that, taking into account the remaining offending, a global sentence of only six years imprisonment should be imposed. The prosecutor stated that she had consulted “with a senior member of the office”. The judge added that she was “concerned that the behaviour is punished appropriately”, explaining that cases of unlawful wounding were normally dealt with in the District Court. The judge expressed her desire to be sure that, when she exercised her sentencing discretion, she did so in an informed way. She stood the matter down to allow counsel to find helpful cases.
[38] When the court resumed, the prosecutor referred to some cases which she accepted were not comparable and which related to the offence of aggravated supply (an adult supplying a dangerous drug to a minor) where the maximum penalty was 25 years imprisonment.[3] The prosecutor submitted that in setting the sentence in this case, the judge should have regard to the general range of offences of unlawful wounding. Those involving “pub glassings” were from 18 months to up to three years imprisonment. Sentences of up to four years were imposed where the injuries sustained were both serious and involved a knife. In R v Henry & Attorney-General of Queensland,[4] the Attorney-General unsuccessfully appealed against a three and a half year term of imprisonment imposed on the 39 year old Henry. He both assaulted causing bodily harm to and wounded an eight month old baby in his care after he had been drinking throughout the day. Henry punched the baby to the face causing him to fall to the floor. That conduct constituted the assault occasioning bodily harm. He then pulled and prodded the hair of the baby until another person present intervened and struck Henry. The baby went to sleep but woke up crying. Henry smashed a beer bottle on the floor and used a piece of broken bottle to slash at the baby’s face. The baby suffered a laceration to the eyelid and cheek. There did not seem to be any permanent harm to the baby although there was a chance of some scarring. Henry had a lengthy criminal history but this offence was out of character. This Court noted that, in the absence of mitigating factors, a five year sentence would have been appropriate. The three and a half year sentence, although at the lower end of the scale for such an abhorrent crime, was within range.

 

[42] The judge ultimately determined to impose a global sentence which took into account the seriousness of the totality of the criminal behaviour to which Brown had pleaded guilty, and to impose that sentence on the wounding counts, with lesser concurrent sentences on the remaining counts. Had it not been for the submissions made by Brown’s counsel, the judge would have seriously considered imposing a higher sentence than that proposed by the prosecution. Her Honour sentenced Brown to six years imprisonment on each of the wounding counts with lesser concurrent sentences on the remaining counts. Parole eligibility was fixed after two years (or one-third of the global sentence).

 

[46] As the High Court in GAS v The Queen[8] and this Court in KU[9] recognised, the prosecutor cannot shift the burden of responsibility for imposing a proper sentence from the sentencing judge if the sentence requested by the prosecutor would amount to a judicial failure to appreciate and give sufficient weight to the offending conduct. Despite the submission of the prosecutor at first instance, this Court should reflect the seriousness of Brown’s multiple offending by substituting a sentence of seven years concurrent imprisonment on each count of unlawful wounding, and each of those counts should be declared to be a serious violent offence.
[47] The Attorney-General’s appeal in this case was exercised consistently with this Court’s direction in Lacey:[10] “sparingly … and not merely for the purpose of having a ‘second bite at the cherry'”. The fact that the prosecutor at sentence asked for the very sentence imposed by the primary judge is a consideration which is outweighed by the need in this case for condign punishment for the dreadful offending.

[57] Although there were three separate offences of unlawful wounding, the context in which they were committed warranted a concurrent sentence on each wounding offence. The judge was entitled to impose a global sentence on the most serious offences, the wounding offences, to reflect the criminality involved in all offences. When Brown’s other offending, some of it whilst on bail, is also taken into account, that global sentence should have been at or near the maximum for the unlawful wounding offences: six to seven years imprisonment. This conclusion is supported in a general way by the sentences imposed in R v Ottaviano[21] and Henry.[22] Adopting the approach taken by this Court in McDougall and Collas,[23] tends to support the making of declarations that the wounding offences were serious violent offences. But other relevant considerations discussed in McDougall and Collas do not support the making of declarations. Despite the stomach-churning and heartbreaking nature of the three wounding offences, Brown had no prior convictions for violence. He pleaded guilty in circumstances where the prosecution would have had difficulty in otherwise obtaining convictions as it considered the child was an unreliable witness. He suffered from schizophrenia and heroin addiction but had promising rehabilitative prospects. His troubled background suggested a need for an extensive period of community support and control under a lengthy parole order, rather than the much shorter period of parole available to him if the offences were declared to be serious violent offences.[24] In those circumstances, the decision not to declare the wounding offences serious violent offences was an unexceptional exercise of discretion. Weighing the competing considerations to which I have referred, I am not persuaded that the global sentence of six years imprisonment with parole eligibility after one-third, imposed in conformity with the prosecutor’s request, was so inadequate to warrant this Court’s intervention.

I refer to an earlier posting in respect of Lacey and the decisions which followed of:

R v Riseley; ex parte A-G (Qld)

R v Watson; ex parte A-G (Qld)

 

Brisbane Barrister – David Cormack

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