Attorney General successfully appeals GBH sentence .
On Tuesday 19 January 2021, the Queensland Court of Appeal upheld an Attorney’s Appeal against a sentence of two and half years with an immediate parole release for a 26 year old man charged with Grievous Bodily Harm. In upholding the Appeal the Court has signified that even for young offenders with limited history and good prospects of rehabilitation a deterrent sentence is called for GBH charges.
Justice Boddice, with whom Justices Morrison and Henry agreed, allowed the appeal and set aside the original sentence to the extent that Mr Chitty’s parole release was effectively fixed after 8 months.
Sentencing of relatively young offenders generally gives rise to the importance of considerations of rehabilitation. However, for some time Courts have recognised and stressed the importance of deterrence, both general and personal, in the sentencing of young men for serious acts of public violence upon innocent members of the community.
Justice Boddice R v Chitty; Ex parte Attorney General (Qld) [2021] QCA 2
Antecedents:
Chitty was aged 26 at sentence and 25 at the time of the commission of the offence. He had a criminal history containing one entry. This was an 11 February 2013, conviction in the District Court of Brisbane for an offence of affray. He was sentenced to 12 months probation and 120 hours community service. No conviction was recorded.
The sentencing Judge accepted that the respondent had had dysfunction in his upbringing. He had a promising sporting career cut short by injury. He was by all accounts, a highly valued and respected employee. At the time of sentence Chitty was in the midst of a relationship breakup, and had responsibility for the care of his children.
He had been operating under the challenges of unmedicated and untreated medical conditions. These fitted the criteria of:
- major depressive disorder;
- generalised anxiety; and
- panic disorder.
The respondent had been receiving psychological treatment. He showed good prospects of rehabilitation.
GBH Offence:
The offence of grievous bodily harm (GBH) was committed on 6 August 2019. The complainant, a 39 year old male, had been drinking with friends at a venue in Cairns earlier that evening. The respondent had also been drinking.
Shortly after 11 pm, the respondent and his friend entered a McDonald’s restaurant and purchased food. There was some conversation between the men and words were exchanged. The incident was captured on CCTV and it appeared that there was an invitation to ‘step outside’.
As the respondent opened the door, the complainant turned towards the respondent’s friend. The camera footage depicted the respondent take two steps back towards the complainant and punch the complainant once in the face.
The complainant fell to the ground, striking the back of his head. He lay motionless. The respondent turned to open the door and left the store with his friend. The respondent made no effort to assist the complainant lying on the
The Complainant, a pilot, suffered facial injuries and a broken jaw, which required surgery.
GBH sentence at first instance
The sentencing Judge accepted the comparable decisions provided some guidance that GBH charges would ordinarily attract a period of imprisonment. The respondent’s offending was distinguished as it did not involve gratuitous street violence, nor was it an assault on emergency services officers. The respondent also had good prospects of rehabilitation. Whilst he had a past criminal history, that occurred when he was 18 years of age and in circumstances where it may well be that his mental health had some aspects of similarity.
Sentencing Principles
The Court of Appeal in R v Chitty; Ex parte Attorney-General (Qld) [2021] QCA 2 accepted that this was not a case of gratuitous street violence, but the violence could instead be described as disproportionate.
The consequences to the Complainant were quite significant. His injuries included:
- a broken jaw in three places, necessitating surgery;
- repair to his teeth.
- ongoing vestibular dysfunction,
- regular headaches; and
- vertigo.
These conditions materially affected his career as a professional airline captain. His loss of income and medical expenses were said to amount to in excess of $140,000.
It is the extent of that damage which is the principle justification for the sentence imposed below. One could perhaps defend a legal system in which the particular consequences for the victim of such a blow are treated as of little significance and the court is required to focus solely on the circumstances of the blow itself. But that is not our system; for reasons which are evident enough, the 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.
Per Pincus J, R v Amituanai (1995) 78 A Crim R 588 at 589
The need for deterrence, both general and personal, was particularly warranted having regard to the respondent’s prior conviction, which related to a single punch (although charged as an affray).
The offending conduct constituting the GBH and the consequences may have justified a head sentence significantly higher than two and a half years’ imprisonment, however it was accepted that the head sentence fell within a proper exercise of the sentencing discretion.
Principle
The Court of Appeal has affirmed the position that in all but unusual circumstances actual periods of imprisonment are applicable. This applies even where it is a single punch from a youthful offender.
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