SUPREME COURT OF QUEENSLAND CITATION: R v Sambai [03] QCA 42 PARTIES: R v SAMBAI, Lucas Londe (applicant) FILE NO/S: CA No 352 of 02 DC No of 02 DIVISION: Court of Appeal PROCEEDING: Sentence Application Application for Extension (Conviction) ORIGINATING COURT: District Court at Brisbane DELIVERED EX 3 March 03 TEMPORE ON: DELIVERED AT: Brisbane HEARING DATE: 3 March 03 JUDGES: McPherson JA, Fryberg and Muir JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: Application for leave to appeal against sentence refused Application to extend time to appeal against conviction dismissed CATCHWORDS: COUNSEL: SOLICITORS: CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION Appeal and new trial Appeal against sentence Appeal by convicted person Application to reduce sentence When refused Offences against the person Assault occasioning bodily harm whilst armed Imprisonment for three years suspended after 2 months for an operational period of four years Not manifestly excessive R v Kazakoff [998] QCA 459, followed R v Burnham and McLean [999] QCA 099, considered The applicant appeared on his own behalf S G Bain for the respondent The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
McPHERSON JA: Justice Fryberg will give the first judgment in this matter. FRYBERG J: The applicant in this matter originally lodged an application for leave to appeal against sentence. That was 0 last year. On the 2 of March this year, the Deputy Registrar received from him a letter enclosing an application for an extension of time within which to appeal against his conviction and a draft notice of appeal against conviction. The material did not include any affidavit material, nor any substantial supporting material of any description. When the matter was called on today, the applicant handed to the Court some unsigned documents, which set out under the heading, "Affidavit", a version which the applicant wishes to give in support of the application. It must be remembered that this is a case where in the Court below, the applicant pleaded guilty. The problems which confront a person who has pleaded guilty are substantial. There must be sworn evidence supporting an application for leave to change the sentence and the material before us, simply is not adequate for that task. The applicant, in order to pursue the belated application, would need to put together proper material, proper evidence, by way of affidavit, setting out a ground for being given the leave which he seeks. 2
The circumstances are not propitious, since the material put before us seems to indicate that he has very little memory of the events of the night in question. I need not pursue that matter on the merits, however, because 0 without properly sworn affidavits, the application for leave to appeal against conviction cannot succeed today. In my view, that application must be dismissed, simply on the ground that there is no proper affidavit evidence before the Court, deposing to the circumstances which would support such an application. I move now to the applicant's application for leave to appeal against sentence. The applicant pleaded guilty on the 4 of October last year, before Judge Dick, in the District Court at Brisbane, to two counts of assault occasioning bodily harm while armed. He was sentenced to imprisonment for three years, such imprisonment to be suspended after he had served a period of 2 months, with an operational period of four years. A declaration was made in respect of 8 days spent in custody, between the 25 of October 0 and the 4 of January 02. His application for leave to appeal against sentence prepared by his then solicitors incorrectly records the offences of which he was convicted as two counts of assault occasioning bodily harm in company, but that is of no consequence. Before this Court he appears unrepresented. 3
The victims of the assault were two young backpackers who were staying at the Palace Backpackers' Hostel in Ann Street, Brisbane. In the small hours of 24 of October 0, they left a nearby nightclub, walked down a laneway to a sheltered area and engaged in some sort of amorous activity. Unfortunately 0 for them, the applicant was asleep in the laneway. He later told police he had been drinking at the Casino and missed the last train home, presumably from the nearby Central Station. The victims' activities annoyed the applicant, because of what he claimed was a public display of immorality. He picked up a rock somewhat larger than a man's hand and attacked them. He hit the male backpacker at least twice on the head, knocking him unconscious. Subsequent CT scanning of his head, showed a fracture in the right occipital bone with slight depression. There were two five centimetre lacerations to different parts of his head and a contused swollen area, with abrasions and a small laceration above and forward of his left ear. He was left with a permanent scar on his forehead and for a month was depressed and unable to do the things he planned on his trip. Having disposed of the male, the applicant turned his attention to the female backpacker. She fell to the ground and he hit her on the head seven or eight times, ignoring her screams. She suffered multiple lacerations and bruising to her head. She required 38 stitches to her skull, seven to her forehead and three to her finger. Severe swelling to her face 4
left her almost blind for about a week. She was left with permanent scarring to her forehead and finger. Her screams attracted the attention of several men who were outside the nightclub. They came to the victim's assistance 0 and some of them apprehended the applicant as he walked away from the scene. There was a scuffle in which the applicant sustained minor injuries, a punch to the face and an injury to his finger, which required stitching. Like his victims, he was taken to hospital, where police arrested him the following day. He took part in a recorded interview and made a full, but not a frank, confession. The applicant remained in custody until he was granted bail on the 4 of January 02. The date of the committal proceedings does not appear from the record, but the indictment was presented in the District Court on 23 May 02. It does not appear when the Crown was notified of his intention to plead guilty. The applicant was represented by experienced criminal counsel in the District Court and there was no submission that her Honour should deal with the matter on the basis that it was an early plea. She did not do so, although she quite correctly took the plea of guilty into account. The applicant was born in a fairly remote village in Papua New Guinea on 25 May 968. He was, therefore, 33 years old at the time of the offence. He was a married man with two young children. He came to Australia in January 0 as a student. The applicant's counsel told her Honour that he started 5
drinking in Australia "as a result of a death of a member of his family and he was unable to return to Papua New Guinea for the funeral because of lack of money". She was also told that he became involved with some other New Guinean students and that that led him to drink to excess contrary to his previous 0 behaviour. He spent time at the casino and on 6 May 0 was caught cheating. He was convicted of that offence under the Casino Control Act on 28 June 0 and was fined $0 with one month to pay. The record does not disclose whether that fine was paid. Presumably it was as there is no suggestion that he served the default imprisonment of one month. Four months later he committed the offences the subject of the present application. In the Court below her Honour rightly observed that this was a vicious and sustained attack on members of the public and in public. Counsel for the Crown had referred to the prevalence of attacks on foreign tourists and backpackers and concern expressed by community leaders about the impact of such attacks on the tourist industry to found a submission for a deterrence. Defence counsel did not challenge that submission, but her Honour did not refer to it in her sentencing remarks. The Crown Prosecutor submitted that a sentence of five years, with a serious violent offence declaration would be within range, but contended for a sentence of four years. Defence 6
counsel submitted that three years imprisonment was the appropriate penalty. Her Honour accepted that submission after a careful review of the cases presented to her. She ordered that the sentence be suspended after a period of 2 months to give recognition to the plea of guilty, to the fact 0 that the applicant would have to return to New Guinea without getting his qualifications because he would be deported upon his release, and to the fact that his sentence would be somewhat harder than normal because, having no permanent family or friends in Queensland, he would not have the comfort of visitors during his imprisonment. Because he was unrepresented in this Court it is appropriate to record some other submissions made on his behalf to her Honour. The applicant's counsel told her that the applicant started study in Papua New Guinea but went to work for a mine which opened near his village for more than 0 years reaching a supervisory position which was quite rare for a Papua New Guinea national. For six years prior to coming to Australia he worked and studied to better himself. It does not appear at what he worked and no references were tendered. Counsel submitted that he would be deported upon his release and would suffer public shame and humiliation in his village. His family have struggled for two years without his earning money and it is now unlikely that he will receive a well paid job on his return. The first of the cases to which her Honour referred was Kazakoff. That was an Attorney-General's appeal against a 7
sentence of imprisonment for two and a half years with a recommendation for eligibility for parole after 0 months for an offence of assault occasioning bodily harm whilst armed and in company. The victim was a police officer assaulted in the course of his duty. The offender had just turned 7 at the 0 time of the offence and had pleaded guilty at an early stage allowing the presentation of an ex officio indictment. At the time of the offence he was on bail and on probation for other offences. He was one of a group of brawling men who attacked the two police officers. He hit the victim on the head with a large piece of timber and others punched and kicked him on the ground inflicting quite severe injuries. On the appeal the Crown contended that sentence of four years imprisonment should be imposed. In allowing the appeal Justice Ambrose with whom Justice McPherson and Justice Byrne agreed, said: "In my view this is a case in which the Crown's contention that the penalty to be imposed ought to be fixed at four years can be supported only on the basis that a penalty of four years imprisonment is assessed, taking into account the plea of guilty on the ex officio indictment. Had the matter been determined on trial, in my view, the serious nature of the assault upon these policemen and upon the complainant, in particular, would have justified a significantly more heavy sentence than one of four years, but the Crown does not argue for greater sentence, and in my view a sentence of four years ought not to be regarded as a comparable sentence for future offences of this sort proved against people who do contest them. The four year sentence in my view, four years imprisonment, can be supported really on the basis of the plea of the respondent on the ex officio indictment presented. 8
With respect to an early recommendation for parole it seems to me that it is having regarding to the age of the respondent and the hope that one would have, that he will receive some counselling and guidance while in custody that may make him an acceptable candidate for release, but principally having regard to his age, I would make a recommendation that he be eligible for parole after serving 8 months of the four year sentence." 0 Taking those remarks into account as well as the circumstances of the case and comparing them with the present, a sentence of four years would have been well within range. The sentence imposed by her Honour falls at the bottom of the range suggested by Kazakoff. Her Honour also referred to Burnham and McLean. In that case the Court reduced sentences of five years and four years imposed for a serious assault occasioning bodily harm in company on a lone policeman in the course of his duty. The injuries led the trial Judge to observe in that case there must have been only millimetres between bodily harm and grievous bodily harm. Both offenders were in their s, Burnham had a relatively minor criminal history, McLean a more substantial one, including an assault on police and another assault. The Court reduced the sentences in each case by one year. With masterful understatement their Honours recognised that reducing the sentences, but not reducing them greatly, was "slightly unusual". They considered Kazakoff at some length and expressed the view that the sentence there imposed suggested that the sentences on Burnham and McLean were too high. It is difficult to know how to recognise that case in the 9
present. The circumstances appear to have been more serious than those of the present case. It is difficult to see how the basis of Kazakoff as set out in the passage which I have quoted above was taken into account. This difficulty and the unusual nature of the decision mean that it should be regarded 0 as having been at the bottom of the range. In the present case her Honour was also referred to Nona. She did not cite it in her sentencing remarks and it is easy to understand why. It was a case which was less serious than the present and it was complicated by the need to apply the totality principle. I do not find it of assistance here. Her Honour did not refer in her sentencing remarks to the Crown Prosecutor's submission regarding attacks on tourists. In my judgment that submission was well made. It is an aggravating factor in the present case that the attack took place close to a popular nightclub and backpacker hostel and close to the central railway station, all areas frequented by tourists. It is unnecessary to enlarge upon the weight which should be given to this factor as the Attorney-General quite rightly in the light of the submissions made by the Crown Prosecutor below has not appealed against the sentence. Another factor not referred to by her Honour was the question of remorse. Probably that was because the applicant had not demonstrated any remorse. One cannot infer the existence of remorse from the bare fact of a plea of guilty. That is confirmed in the present case by the applicant's conduct in lodging his notice of application for extension of time in 0
which to appeal against his conviction and notice of appeal against conviction. In my judgment the applicant was fortunate that he was not sentenced more heavily. In reaching that conclusion I take 0 into account the fact that the applicant was unlikely to have visitors during the nine and a half months of his imprisonment remaining at the time of sentence and that he is serving imprisonment in what is, to him, a foreign country and culture. The case is unusual in this respect. I do not take into account the fact that the applicant will be deported at the end of his sentence without having obtained the qualification for which he came to Australia. There is no evidence of what the qualification was, or what progress the applicant had made. If, as his counsel told her Honour, he was drinking too much and attending the casino he may well have had to return to New Guinea without the qualification in any event. The sentence is not manifestly excessive. The application should be dismissed. McPHERSON JA: It is unfortunate that the applicant fell into company which diverted him from his purpose in coming to Australia which was to study and improve his own and his people's position in Papua New Guinea and into what appears to have been something of a career of drinking and gambling which seems to have led to this episode of violence against two
quite unoffending victims. I agree that the application for leave to appeal against sentence and so far as it is before us, the application to extend time to appeal against conviction, should be refused 0 and dismissed. MUIR J: It is my view also that the sentence appealed against was not excessive. I agree with the orders proposed. McPHERSON JA: The orders are that the application for leave to appeal against sentence is refused and the application to extend time to appeal against conviction is also refused. That is the order of the Court. ----- 2