The Queen v Warwick[1998] QCA 337

McPHERSON JA:  In consequence of an order extending time within which to apply for leave to appeal, which was made last Tuesday, this application has now become an application for leave to appeal against sentences imposed in the District Court at Ipswich.

The sequence of events appears to be as follows. In February 1997 the applicant and one Hutchin came before Judge O'Sullivan in the Ipswich District Court charged jointly with having on 22 October 1996 taken a car belonging to a Mrs Hamilton and removed from it five tyres and various other pieces of equipment preparatory to burning it, which they did in order to conceal evidence against them. The car, which was worth some $5,200 and had only very recently been bought by Mrs Hamilton, was completely destroyed.

At the hearing before Judge O'Sullivan, Hutchin was sentenced to a term of imprisonment. The applicant himself escaped that fate by offering to pay compensation equal to half of the loss I have mentioned, and he was placed on probation without a conviction being recorded. He had every reason to regard that sentence as a generous one. He paid the amount in question but did not show any great inclination to comply with the requirements of the probation order and his then probation officer was, it seems, proposing that some action be taken to discipline him in that regard.

The next event in the sequence took place on 19 August 1997. Hutchin, it seems, bore a grudge against the applicant for the fact that Hutchin had gone to prison, whereas the applicant had not.

On 19 August 1997 the applicant was walking past the CES Office in Ipswich when he was approached by Hutchin. He is said to have "started into" the applicant complaining that he had gone to gaol over their earlier joint offence. The applicant's response to this, "So what?" 

This annoyed the complainant who punched the applicant several times on the side of the face. The applicant retreated, but the complainant kept on punching. The applicant thereupon drew out a pocket knife and stabbed the complainant in the lower rib area.

The knife was variously described by witnesses as being four to five inches long, although the complainant stated it had a two to three inch blade. The applicant, in doing this, said to the complainant, "I'll f'ing kill you," and he approached him in a manner that the complainant described as "threatening". The applicant was still holding the knife at that time.

A witness said that the complainant responded to the applicant in terms that, "You are dead meat. You'll keep. I'll get you later."  The applicant left the scene and was apprehended only some time later.

The complainant himself flagged down a car and persuaded the driver to take him to hospital. He was in an unsatisfactory condition at that time, as one might expect, but he was resuscitated, and the wound was sealed by what is described as an intercostal catheter. The doctor described his condition at that time as "urgent".

After the stabbing incident the applicant, as I have said, made off and was not apprehended until some time later, when he was found as a passenger in a stolen car. That gave rise to three further charges, this time mere simple offences, against him as that he was a passenger in that car, that he refused to assist the police and that he refused to give the name of the person who was responsible for the offence.

The applicant, when he came before His Honour Judge Forde on these offences, was 21 years old. He was sentenced to 15 months imprisonment for the offence of grievous bodily harm, to be served concurrently with a three-month sentence for the simple offences involving the use of the motor vehicle et cetera on the occasion when he was apprehended. In addition, the Judge imposed a sentence of six months for the earlier two offences committed in October 1996 involving the taking and burning of Mrs Hamilton's motor car. That sentence of six months was made cumulative on the 15-month sentence imposed for the grievous bodily harm offence, with the result that the effective sentence to be served by the applicant is 21 months. It is against those sentences that this application is now brought.

It should perhaps be added that, before the offences which I have described here, the applicant had no criminal history and he appears to have been engaged in work as an apprentice baker. He had, however, a drug or alcohol problem which appears to have been to some extent responsible for his misbehaviour.

The applicant, by his counsel Mrs Richards, submits that the sentence imposed is manifestly excessive. He contends that the learned sentencing Judge failed to have any sufficient regard to the report of the community correctional officer. That was a report which followed a period in custody before the sentencing, which it was said by the correctional officer had had a salutary effect on him. His Honour, it would appear, was not particularly impressed by that late conversion, particularly having regard to the applicant's earlier failure to comply with the terms and the requirements of his probation order or his probation officer. He had, it was said in the later report, demonstrated that he was trying to rehabilitate himself as a drug or alcohol user and had shown a better attitude towards probation.

The respondent submits that the appeal is without merit and that the 15-month sentence is not immoderate, considering the circumstances of the injury, which was inflicted by a concealable sharp cutting weapon. The respondent also draws attention to the remarks of the learned sentencing judge with respect to the applicant's supposed change in attitude and contrasts it with his initial complete disregard for the leniency extended to him.

When the matter is more closely analysed, it seems to me that it comes down to this. The applicant is hardly in a position to complain of the sentence of six months that was imposed on him with respect to the original offences involving the taking and destruction of the motor car. He was given an opportunity to avoid going to prison on that occasion and, in the end, it is plain that he has failed to take advantage of it. The specific sentence imposed in that instance of six months could scarcely, one would think, be regarded as excessive.

The sentence with respect to the grievous bodily harm falls into a different category. It is an offence of an entirely different kind to which I will address some remarks in a moment. It is said, however, that the sentence for that offence and for the other one cannot or ought not properly to have been made cumulative. For my part I cannot see why that is so.

The applicant, as I said, originally had an opportunity to avoid going to prison, of which he did not avail himself, and instead committed another offence of a more serious and quite different kind. It was a distinct occasion and the case seems to me to have been one in which it was quite appropriate, and certainly not inappropriate, to make the two sentences cumulative.

I now turn to the grievous bodily harm offence itself. The applicant was suddenly and unexpectedly set upon by the complainant who, without provocation, began raining blows on him with his fists.

The applicant did not run away, as perhaps he might have done, but he appears to have made at least some effort to retreat or disengage, but without success.

What, in the final analysis, appears to me to count against him in this incident is that he stabbed the complainant in the side of the chest, and he did so completely without any warning. He did not, as he might have done, draw the knife and brandish it at the complainant as a threat to make him back off. If he had done so, and the complainant had come at him again, it may be that one could view the offence somewhat less seriously. Instead, however, he simply - and it might be thought surreptitiously in the way he did it - drew the knife and plunged it into his assailant's body in an area which, it is known to everyone, is prone, if penetrated in that way, to have fatal consequences. There is every reason to suppose that the results might well have been much more serious had the complainant not received medical treatment soon afterwards; and it is impossible not to remark that the applicant did nothing towards helping him to obtain such treatment.

In the result, I consider that the learned sentencing Judge was right to regard the use of a knife in that manner and under those circumstances as, in the view of the community, calling for an appropriate deterrent sentence. Even comparatively modest cases of assaults by punches and kicks commonly in my experience attract sentences in the range from three to perhaps nine months, which makes it impossible to regard 15 months for a stabbing of this kind as an excessive penalty for the offence involved.

What remains is the prospect of recommending parole or, as the applicant's counsel has suggested at one point, suspending the sentence after perhaps a period of it had been served.

In the ordinary course of events the applicant may expect to be considered for parole after about 10 and a half months of the sentence. The question is whether he ought to be given any more definite or more favourable consideration than that. What counts against him in that context is that, when originally placed on parole, he appears to have performed very badly. He failed to attend as required and he ignored instructions of his correctional officer. No doubt it is true that he has now adopted a somewhat different attitude; but the judge was not unjustified in viewing this change with a degree of cynicism that comes from the experience of being a judge.

He committed the serious offence of grievous bodily harm; and then, after that, was apprehended in the process of travelling as a passenger in a stolen car and proceeded to commit a further series of admittedly simple offences involving that car or its use. That was on 4 November 1997, which was after both the grievous bodily harm offence and the original offence of October 1996. It does nothing to suggest that the applicant was committed to an honest and law-abiding life by that time.

Objectively considered it appears he has learned nothing from the previous opportunity he was given by Her Honour Judge O'Sullivan on the occasion of his first Court appearance, where he was treated with considerable leniency and was warned in very clear terms by Her Honour of what the consequences would be if he committed any further offences.

The learned sentencing judge here - that is to say, His Honour Judge Forde - was not impressed by the theory that the applicant had changed his attitude. There really is no compelling reason for saying that he must have been wrong in this conclusion.

In all the circumstances, I do not consider that we should accept the submissions, persuasively presented as they were by Mrs Richards. A six-month sentence for the original offences cannot fairly be regarded as excessive or open to challenge, even if one disregards the sentences imposed for the later offences in November 1997. Neither, to my mind, is it possible to say that a sentence of imprisonment for 15 months was excessive for this severe blow or stabbing struck with a knife. There is, in the end, to my mind, no basis for saying that the sentences should have been made concurrent rather than cumulative. They were quite separate and distinct offences and fell to be considered as such.

In the result, I am not persuaded that there is any substance in this application and I would therefore refuse it.

AMBROSE J:  I agree.

BYRNE J:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal is refused.