SUPREME COURT OF QUEENSLAND

CITATION:	R v Keen [2015] QCA 97	
PARTIES:	R
v
KEEN, Tahu Sean
(applicant)	
FILE NO/S:	CA No 62 of 2014
DC No 125 of 2014	
DIVISION:	Court of Appeal	
PROCEEDING:	Sentence Application	
ORIGINATING COURT:	
District Court at Beenleigh – Unreported, 13 March 2014	
DELIVERED ON:	5 June 2015	
DELIVERED AT:	Brisbane	
HEARING DATE:	14 May 2015	
JUDGES:	Holmes and Gotterson JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made	
ORDER:	The application for leave to appeal is refused.	
CATCHWORDS:	Criminal law – appeal and new trial – appeal against sentence – grounds for interference – sentence manifestly excessive or inadequate – where the applicant was sentenced to eight and a half years imprisonment, with a serious violent offence declaration, for one count of deprivation of liberty and one count of malicious act with intent – where the applicant attacked the complainant with a Samurai sword, tied his neck and hands with zip ties and left him in a locked room – where the complainant sustained a number of serious injuries, including a severe traumatic brain injury – where the applicant committed the offences in breach of bail and two suspended sentences – where the applicant had a criminal history with relevant entries for robbery with actual violence, assault occasioning bodily harm and burglary –whether the sentence was manifestly excessive
R v Amery [2011] QCA 383, considered
R v Eade [2005] QCA 148, considered
R v Hasanovic [2010] QCA 337, considered
R v Holland [2008] QCA 200, considered
R v Janz [2008] QCA 55, considered
R v Mikaele [2008] QCA 261, considered
R v Thompson [1997] QCA 94, considered	
COUNSEL:	The applicant appeared on his own behalf
B J Power for the respondent	
SOLICITORS:	The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent	
[1]	HOLMES JA:  The applicant was sentenced to eight and a half years imprisonment in respect of one count of malicious act with intent, with a declaration that the offence was a serious violent offence, and another two years imprisonment, concurrent, on a further count of deprivation of liberty.  He seeks leave to appeal those sentences.
The circumstances of the offences
[2]	According to a statement of facts tendered in the sentencing hearing, the applicant and his co-accused, Peta-Renee Higgins, had been in a relationship.  In annoyance at some behaviour of the applicant’s, Higgins went to stay with the complainant.  When the applicant collected Higgins from the complainant’s house about a week later, she alleged the latter had raped her.  Surrounding circumstances suggest that that was untrue, but there is nothing to indicate that the applicant did not believe the allegation.  He contacted various friends, including a man named Palmer, about means of taking revenge on the complainant.  Palmer formed a plan to rob the complainant, in accordance with which Higgins telephoned him and persuaded him to come to Palmer’s house at Slacks Creek.  A friend of the complainant’s drove him there because he seemed affected by alcohol.
[3]	When they arrived at the Slacks Creek house, the complainant and his friend were met by Higgins.  They accompanied her to a room inside the house where they sat down with Palmer and another man.  Higgins went upstairs to inform the applicant that the complainant was below.  The applicant ran into the room, holding a Samurai sword with both hands.  He yelled “how’s it fucken going?”, and confronted the complainant, whom he struck to the face three or four times in a chopping motion.  The complainant’s friend tried to push his way out of the room while yelling at the complainant to do the same and trying to get him out also.  Palmer and the applicant pulled the complainant back into the room while the complainant’s friend was assaulted, and then put in a headlock by Palmer.  His calls for help drew the attention of neighbours and he was released.  He was able to call police, but they took over an hour to arrive.
[4]	Meanwhile, the applicant and Higgins went to a neighbouring house, leaving the complainant locked in the room in which he was assaulted.  The applicant informed the neighbour that they had “flogged” or “bashed” a man for raping his girlfriend.  He and Higgins removed their shoes and put them in a bin; the applicant’s shoes had the complainant’s blood on them.  They walked away from the area together.
[5]	The police, when they eventually attended, found the complainant on his knees in the room where he had been left.  He was described as being in distress, unresponsive, and bleeding heavily from the face and arms.  He had a zip tie around his neck with a rag at the front of it and two zip ties on each wrist.  There was blood on a chair and a tooth was lying on the floor.
The complainant’s injuries
[6]	The complainant was taken to hospital where he was placed in an induced coma for five days.  He had sustained bruising to his neck, lacerations to his right forearm and elbow, extensive facial fractures, an acute subdural haemorrhage, and a bilateral collapse of the lower lobes of his lung.  His arm lacerations were debrided and sutured and he underwent two courses of surgery involving internal fixation of his facial fractures.  He suffered post traumatic amnesia, aspiration pneumonia, and a severe traumatic brain injury.  When last reviewed medically, he was still reliant on memory aids, had difficulty with cognition, and suffered mood changes which affected his daily functioning.  He required support from his father to remain living in the community.
[7]	More current information was provided by the complainant’s victim impact statement.  He said that his facial bones were held together by staples, and his jaw by steel plates.  He had lost all but five of his teeth and would need dentures for the rest of his life.  He had lost feeling in the bottom right side of his face, which caused him to dribble when he ate or drank.  Forty per cent of the vision in his right eye was gone and he had suffered a loss of night vision.  His balance was affected.  He suffered short term and long term memory loss which, combined with a loss of feeling in his right hand, meant that he could no longer work in his trade as a mechanic.  He experienced difficulty in comprehension, had lost self-confidence and was no longer able to maintain a social life.  He had lost his means of earning an income, and was left in debt as a result of the time spent in recuperating.  He was no longer in a position to rent a dwelling, and would need Queensland Housing accommodation.
The applicant’s criminal history
[8]	The applicant was 23 years old when the offence was committed.  Nothing was put in mitigation other than that he had pleaded guilty and had spent some time in custody which could not be declared.  It was not suggested that he was remorseful or had any redeeming features; no references were tendered; and nothing was put about his background which might shed any light on his conduct.  His criminal history extended back to 2005, the year he turned 17, beginning with relatively low level offences of dishonesty for which he was generally convicted and fined or, in one instance after breaching probation, placed on a suspended sentence.
[9]	In February 2006, the applicant committed an offence of robbery with actual violence while armed and in company, for which he was sentenced in December 2006.  He was part of a group of four, the others younger than he, which confronted two teenagers and robbed them.  One of the group was holding an iron bar, and the applicant, a hatchet.  They demanded the complainants’ money and mobile phones, but did not physically harm them.  Apparently in the interests of maintaining parity with the sentences of the applicant’s juvenile co-offenders, the sentencing judge did not record any conviction against the applicant, instead placing him on orders for two years probation and 125 hours community service.
[10]	The applicant offended at a lower level for the next 18 months.  He was convicted of offences of possessing utensils and committing public nuisance, as well as being dealt with for a breach of suspended sentence, a breach of a probation order, and a failure to appear in accordance with a bail undertaking.  At the end of May 2008, however, he was dealt with for offences committed in 2006: two assaults occasioning bodily harm, and one count of burglary.  The first in time of the assaults involved the applicant’s punching a schoolboy in the face, for no other reason than that he was in a bad mood.  The later offences of assault and burglary involved his going to a neighbour’s house, forcing his way in, punching him ten times and biting him.  Those offences had been committed after he was dealt with for the armed robbery.  He had not complied with the probation order then imposed and had not completed any of the 125 hours community service.  The applicant was ordered to serve the whole of a two month sentence of suspended imprisonment imposed in mid-2006 for wilful damage, which the offences breached; the non-custodial orders made in respect of the armed robbery offence were set aside and a sentence of 18 months imprisonment substituted; and on each of the assaults and the burglary, he was sentenced to a further two years imprisonment, to be served cumulatively.  His parole eligibility date was fixed six months after the date of sentence.
[11]	It is not apparent from the record when the applicant actually received parole, but his offending re-commenced in November 2010 with a series of frauds and receiving tainted property offences.  In early 2011, he was given a sentence of six months imprisonment suspended for two years, of which he subsequently had to serve a month when he breached it.  In May 2012, he was sentenced to one month imprisonment, suspended for 12 months, on a charge of possessing property suspected of having been used in connection with the commission of a drug offence.
[12]	The offences in respect of which the applicant seeks leave to appeal were committed on 31 August 2012.  He was remanded in custody from 12 September 2012.  In October 2012, he was dealt with for a number of offences of fraud and receiving tainted property committed in 2011 and earlier in 2012.  (He had been arrested and given bail on the earliest of them in November 2011, so that he was on bail when he committed the present offences.)  He was sentenced to 12 months imprisonment and the 2012 suspended sentence was invoked.  He was given a parole release date of 9 February 2013.  The full time release date on that sentence was 9 October 2013.
[13]	The net result was that when the applicant was sentenced in March 2014, 162 days were declarable as having been served in respect of the present offences, while another eight months was time for which he might, but for them, have been released on parole.
The sentencing remarks
[14]	The sentencing judge remarked that when the offences were committed the applicant was on parole for matters dealt with in the Magistrates Court.  That in fact was not quite correct: at the date of the offending the applicant was on bail and was subject to both the 2011 and 2012 suspended sentences which were subsequently invoked, his parole release date being set subsequent to the offending.  The error is of little moment, however; what matters is that the applicant offended in breach of not one but three court orders.
[15]	His Honour detailed the injuries inflicted on the complainant.  He observed that the offence had commenced with the applicant’s use of a Samurai sword to strike the complainant, and that his involvement in what occurred after that could be inferred from the catastrophic range of injuries the complainant had suffered.  The offending was of such a serious nature that a declaration that the applicant was convicted of a serious violent offence was warranted.  His Honour identified as significant a number of features of the offending: the use of a weapon; the use of ties to bind the complainant; the nature of the injuries, including a brain injury as well as extensive facial injuries; the catastrophic outcome for the complainant; the way in which the events occurred; and the context of the applicant’s criminal history, including offences of violence.
[16]	The sentencing judge concluded that a head sentence of nine and a half years imprisonment was appropriate, notwithstanding the applicant’s youth.  However, giving the applicant the benefit of the eight months already served, his Honour reduced that sentence to eight and a half years, making the serious violent offence declaration which required that 80 per cent of the sentence be served.  The sentence of two years imprisonment imposed in respect of the relevant deprivation of liberty charge was to be served concurrently.
The applicant’s submissions as to the basis of sentencing
[17]	A number of the applicant’s submissions involved contentions that the statement of facts tendered below was wrong.  In particular, the applicant now maintains there is no evidence that a weapon was used and none was found.  That seems to overlook the account of the complainant’s friend, who witnessed the beginning of the attack.  (The complainant had no recall of the events.)  He also points out, no doubt correctly, that if the complainant were hit in the face with the sharp side of a Samurai sword he would have massive lacerations.  He assured the Court that he would not use the blunt side of a sword if he were assaulting someone, when that possibility was put to him.  I am in no position to assess the accuracy of that rather alarming statement, but I note that elsewhere in his submissions the applicant says that due to his use of ice and speed on the day in question he can remember only a very little of the day of the offending.  It does not seem, then, that the applicant is a reliable source of information as to how the assault took place.
[18]	In any event, the statement of facts, which included the description of the applicant’s delivering blows to the complainant’s face with a sword, was put before the court below without objection, and the applicant’s counsel specifically said that he had nothing to add to those facts.  The applicant now complains of what he says was his legal representatives’ failure to act on instructions.  He had told them that there was not enough evidence to prove that he had used a sword, and his counsel failed to put before the court the fact that he was a drug addict and under the influence of amphetamines on the day in question.  There was no evidence before this court as to what the applicant’s instructions to his legal representatives were, but as already observed, given his inability to remember events, it is unlikely he could have given positive instructions as to what occurred.  A submission that the assault was committed under the influence of amphetamines seems unlikely to have resulted in a more favourable view being taken of his offending.
[19]	The applicant was properly sentenced in accordance with the accepted statement of facts.
Comparable authorities relied on by the applicant
[20]	The applicant relies on three decisions as demonstrating that the sentence imposed on him was manifestly excessive: R v Thompson, R v Holland and R v Amery.  In Thompson, the applicant was sentenced to imprisonment for seven years after being convicted by a jury of wounding with intent to do grievous bodily harm.  He had been acquitted of attempted murder, and the sentencing judge took into account that he had indicated a willingness to plead to the lesser offence.  That applicant had previously been convicted of assault, deprivation of liberty and breach of a domestic violence order which his former wife had obtained against him, resulting in his being sentenced to an intensive correction order.  He was still subject to that order when he committed the wounding offence.  Although a domestic violence order was still in place, he and his wife were (apparently with her consent) in a vehicle with their children.  They argued; the applicant became upset and began punching her and stabbing her with a screwdriver, causing three puncture wounds to her head and one to her chest.  Bystanders intervened and ended the assault.  This Court refused an application for leave to appeal against sentence.
[21]	In Holland, the 43 year old appellant was convicted, after a trial, of grievous bodily harm with intent.  He was sentenced to five years imprisonment cumulative on an earlier sentence of 12 months imprisonment for assault occasioning bodily harm.  The appellant had been staying in a house where the complainant and some other people lived.  He accused the complainant of being a “pervert” because he believed he had watched him and a female friend while they were partially undressed.  Holland punched the complainant, who was smaller and older than he, several times and then kicked him three or four times around the neck, face and jaw with his heavy boots.  The complainant’s jaw was broken in a number of places and required surgery.  Keane JA observed that there was a range of sentencing in cases where “grievous bodily harm has been deliberately inflicted by the use of a weapon by a mature offender with a record of personal violence” of between four and seven years imprisonment.  The appellant’s boots were to be regarded as a weapon.  The sentence of five years imprisonment cumulative on the earlier sentence was well within the established range.  McMurdo P described the sentence as at the high end of an appropriate sentencing range bearing in mind the injuries, the absence of any weapon such as a knife or crow bar and that there had been some provocation from the victim.  However, the appellant had shown no sign of remorse, and it was fortunate that the complainant’s injuries were not worse.  Fryberg J endorsed those remarks.
[22]	In R v Amery, the applicant was, like the applicant in Thompson, subject to a domestic violence order when he argued with his de facto wife, angered by her laughing when he said he would not be able to see his daughter because of the order.  He obtained a 10 pound sledgehammer from the back yard and hit her head twice with it.  He then called the emergency number and told police he had assaulted the complainant.  She sustained two deep lacerations to her skull, a skull fracture and damage to two teeth.  She underwent surgery to remove bone fragments in her skull, and a dural tear was repaired.  Remarkably, she made a full recovery from her injuries.  That applicant was 47 years old and had a criminal history which included three armed robberies committed in his twenties.  After his release from imprisonment on the last of them, he had obtained employment in the building industry.  He had, however, committed a breach of a domestic violence order in 1997, a year after his release from prison, against the same complainant.  He had expressed remorse to her in respect of the current offence and she was supportive of him on sentence.  The sentencing judge accepted a somewhat questionable claim that the applicant was affected by an adverse reaction to medication at the time he committed the offence.  He was sentenced to eight years imprisonment with no declaration of a serious violent offence, but no parole eligibility date was set.  The sentence was varied only by reducing it to seven years seven months, to recognise a period of pre-sentence custody not taken into account by the sentencing judge.
Comparable authorities relied on by the respondent
[23]	The Crown relied on three cases which had been referred to at first instance – R v Mikaele, R v Janz and R v Hasanovic – and a fourth case, R v Eade.  Each of those cases involved a youthful offender who had pleaded guilty to grievous bodily harm with intent, having committed extremely serious physical injury.  The applicant in Eade was part of a group of youths driving around the streets of a provincial town who yelled abuse at two male pedestrians.  One of them approached the applicant’s vehicle and began to argue with the youths.  The other man, the complainant, seeing one of the group reaching for something under the seat, leant on the door of the applicant’s vehicle to try to stop the occupants from getting out, but dented the door.  The applicant attacked him with a hockey stick, inflicting repeated blows on his shoulder, torso and head, and then, with his friends, kicked him about the head.  His companion was also assaulted.  The applicant got back into his vehicle and reversed it over the complainant.
[24]	The complainant sustained a closed head injury, cerebral oedema, extensive facial fractures and a fractured jaw.  He was left with a loss of vision in one eye, scarring, cosmetic problems requiring further surgery and a misalignment of his jaw which caused him difficulty in eating.  He had worked in the construction industry but could no longer do so.  There is no suggestion, however, that he had suffered any enduring brain damage.  The applicant in Eade was 17 and had no criminal history.  He had a girlfriend and a small child.  He was from a dysfunctional background, and was said to suffer from a poly-substance dependence, and a mood disorder.  The offending was fuelled by ingestion of marijuana and alcohol; his blood alcohol concentration was .129 when he was breathalysed after the events.  This Court held that a sentence of 10 years imprisonment with the consequential automatic declaration of a serious violent offence was not manifestly excessive.
[25]	R v Mikaele also involved a 17 year old applicant.  He was part of a group of five youths which attacked a man leaving a train station at night, stealing his mobile phone.  Others punched the victim and kicked him in the head when he fell.  The applicant admitted to kicking the man a number of times, particularly in his head, and punching him.  After the group had moved away and he lay unconscious, the applicant returned and attacked him again, stomping on his head.  The victim suffered a closed brain injury and a blood clot in his lung.  He suffered post traumatic amnesia over a three week period.  At the time of sentencing, he was still suffering from memory and concentration deficits.  His family had suffered from his inability to work for a period as a result of his injuries.  The applicant had cooperated with the police, made full admissions and entered an early plea of guilty.  He was sentenced to nine years imprisonment with a declaration that the offence was a serious violent offence.  At the same time he was given concurrent sentences of five years imprisonment for three offences of robbery.
[26]	On appeal, the applicant in Mikaele submitted that the declaration should not have been made.  The offence was not unusual; the complainant’s injuries were the result of a joint attack which the applicant had not initiated; the assault was spontaneous, not a premeditated act of revenge; and it did not involve weapons.  Rejecting that submission, Mackenzie AJA, with whom the other members of the Court agreed, observed that the applicant’s behaviour, in joining in the assault and returning to inflict more injuries after the others had ceased, demonstrated an extraordinary degree of callousness and a disregard for the prospect of the victim’s being seriously injured.  The nature of the attack warranted the appellation of a serious violent offence.
[27]	In Hasanovic, the applicant, another 17 year old, pleaded guilty to a number of offences which included five burglaries and stealing, fraud and entering premises with intent and half a dozen robbery charges, one of them an armed robbery, and two attempted armed robberies, in company.  Significantly for present purposes, he was charged, with co-offenders, with grievously bodily harm with intent and wounding.  They had been told by one of their number that his sister had been raped by a student at a high school.  The applicant armed himself with a meat cleaver and, with seven other members of a street gang to which he belonged, went to the school.  They approached a group of year 10 students.  The appellant swung the meat cleaver, striking one boy on the cheek and causing him a wound which required 60 stitches and plastic surgery and left him with facial scarring.  When another boy attempted to flee, the applicant struck him in the back with the meat cleaver, causing lacerations close to his spine.
[28]	That applicant was a Bosnian refugee whose family had undergone considerable loss and hardship, including the death of his father.  He had undergone physical abuse at the hands of his step-father.  He had had difficulties at school because he could not speak English, and had left school early.  The sentencing judge started from the position that the appropriate sentence for the count of grievous bodily harm with intent was eight years; treating all offences globally, he imposed a sentence of nine years imprisonment, with a declaration that the offence of grievous bodily harm with intent was a serious violent offence.  On the applicant’s application for leave to appeal, this Court was referred to Mikaele and Eade.  Having regard to those cases, it concluded that the sentence as a whole was in an appropriate range and that the serious violent offence declaration was warranted.
[29]	In R v Janz, the applicant sought an extension of time within which to appeal a sentence of ten and a half years imprisonment for grievous bodily harm with intent.  He was 19 at the time of the offence and suffered from cerebral palsy.  He was sharing a unit with another sufferer of the condition who was confined to a wheelchair.  Because of some disagreement, he procured an acquaintance to hurt the complainant, envisaging that that might involve serious life threatening injury.  The acquaintance cut the complainant’s throat and stabbed him in the back three times.  The complainant nonetheless was able to obtain assistance.  His vocal cords had partly been severed, leaving him with difficulty using his voice.  He lost a good deal of his existing independence as a result of the attack.  This Court concluded that although the sentence was a lengthy one, it was not manifestly excessive; the application for an extension of time was refused.
Discussion
[30]	The sentencing judge identified many aspects of the present offending which pointed to the need for strong personal as well as general deterrence.  He did not include, but could have, the fact that the attack on the complainant was premeditated, planned and protracted.  That feature contrasts with the spontaneous character of the violence inflicted in the cases on which the applicant relied; and in none of those cases was the victim left with the kind of continuing, major and disabling physical damage which the complainant here has suffered.  The applicant’s violence was not entirely gratuitous, in that he perceived the complainant to have wronged Higgins, but his response was entirely unjustifiable.  The complainant was given no opportunity to defend himself, verbally or physically.  Catastrophic injuries were inflicted on him, after which he was left tied up in a locked room, with the applicant evidently indifferent to whether he lived or died.
[31]	In the applicant’s favour were his youth and the fact that he had pleaded guilty.  His plea saved the justice system the expense of a trial, but the case against him was strong: the complainant’s friend had identified him, Higgins had given a statement about the background to the offending, the complainant’s blood was found on his shoes, and he had made an admission (in the form of a boast) to the neighbour about bashing or flogging the complainant.  He had not (and has not) demonstrated any hint of remorse, notwithstanding the life-altering injuries inflicted on the complainant.  Although young, he had amassed a record of offending with instances of mindless violence, and court orders plainly did not deter him from further offences; which suggested poor prospects of rehabilitation.  The cases relied on by the respondent demonstrate that sentences of similar proportions to that imposed by the sentencing judge have been imposed on much younger offenders involved in crimes of similar savagery.
Conclusion
[32]	The sentence imposed was not lenient, but it was not manifestly excessive.  I would refuse the application for leave to appeal.
[33]	GOTTERSON JA:  I agree with the order proposed by Holmes JA and with the reasons given by her Honour.
[34]	BODDICE J:  I have read the reasons for the judgment of Holmes JA. I agree with those reasons and proposed order.