The Queen v Suliman[1999] QCA 228

COURT OF APPEAL

McMURDO P

PINCUS JA

THOMAS JA

BRISBANE

DATE 17/06/99

JUDGMENT

THE PRESIDENT:  Mr Justice Pincus will deliver his reasons first.

PINCUS JA:  This is an application for leave to appeal against sentence, the applicant having been sentenced to two and a half years imprisonment for unlawful wounding.  There was a plea of guilty, but the circumstances in which the offence was committed were substantially in dispute and so the primary Judge heard evidence and made findings.

The applicant and complainant are husband and wife.  He is 32 years of age and has some criminal history.  In essence, what occurred was that there was a dispute between the parties over a trivial matter in the afternoon of 15 February 1998.  Apparently in consequence of that, the applicant, who had left the matrimonial home and come home very late, attacked the complainant in the early hours of the morning.

According to the evidence of the complainant, she was grabbed by the applicant and dragged to a hallway near a kitchen.  She said that he got a knife and began thrusting it at her and that as he did so, he said, "I am going to kill you.  I am going to kill you."  The Judge found that the applicant had no intention to injure the complainant, but she was in fact wounded in the body and neck when the applicant "thrust the knife towards her face, neck and chest area on a number of occasions whilst she was attempting to adopt measures to avoid what she clearly thought were attempts to injure her".  The Judge regarded the applicant as having done what he did "in a sort of rage and in a grossly misguided display of aggression".

There were specific differences between the evidence of the applicant and that of the complainant, which His Honour did not see fit to resolve.  In saying this, I intend no criticism of the Judge, because the essential point was, as it seems to me, the general character of the assault; His Honour made an adequate finding about that.

The wounding was said to consist of a laceration underneath the left ear lobe, a laceration to the left forearm, one to the right thumb and one to the left ear and bruises in various places.  The Court has had the advantage of seeing the photographs of the complainant, illustrating her injuries, which were not of great seriousness, although certainly not injuries which one would wish to sustain.

The applicant's criminal history ceases in 1987; it includes offences of stealing as well as breaking, entering and stealing.  There are also assaults in the record.  He was sentenced for the offences I have mentioned on six occasions, from 1985 to 1987.  The last two sentences imposed were custodial.  This is not an insignificant record, nor an irrelevant one, but it has to be noted that there is a gap of 11 years between the last offence in the record and the present offence.

In the primary Judge's reasons for sentence, His Honour explained that the applicant was being dealt with on the basis that there were "a number of thrusts by the knife whilst your wife was lying on a floor, having been placed there by yourself and the knife was thrust towards her face and chest area".  His Honour went on, "The victim could easily have been killed by you.  Your actions were carried out in a situation where you were in a rage and the victim was terrified.  I accept that you did not have any intention to do her harm."  His Honour said, with respect to a victim impact statement which is Exhibit 12, "There will be lasting effects on her.  I have had regard to the victim impact statement and I treat that with some circumspection in the circumstances.  But nevertheless, clearly there will be lasting effects on her of some degree."

The reference to circumspection in those remarks may well have had relation to His Honour's reservations about the accuracy of the complainant's evidence of the seriousness of the attack upon her.  The Judge took into account the fact that the applicant had been in custody for about six months and gave him credit for three months, since the custody related partly to another offence not then dealt with.  His Honour referred to the previous convictions which I have mentioned and said, "Your past record virtually ceased in 1987 and for a substantial period of time you were a person of good character.  In your favour is the fact that you have been a diligent student.  I take into account the character material tendered on your behalf and take the view that there are good prospects for your rehabilitation."

His Honour said, however, that but for the plea of guilty, a sentence of up to or perhaps even beyond three and a half years, would have been appropriate.  His Honour also took into account that the marriage was under stress, that the complainant was a victim of HIV virus, His Honour expressing the view that this had had "a very distressing effect upon her from time to time" and it had put its own strains on the marriage.

Mr Leask, for the applicant, has put his submissions very largely on the simple basis that the sentence imposed was too heavy having regard to the finding that there was no intention to do injury.  There was some discussion before this Court as to what that finding entailed.  Mr Leask suggested that it may have meant that there was negligence.  My own view, however, is that His Honour probably took the stand he did because he thought that although the motions of the knife were intentional, they were done with the intention of frightening rather than injuring.

The essence of the matter, as it seems to me, is whether in the light of the comparable cases to which Mr Leask has referred us and what might be called general experience of such matters, His Honour was right in saying, as he did, that a sentence in the region of three and a half years would have been appropriate in these circumstances, but for the plea of guilty.  His Honour, as I have mentioned, imposed a sentence of two and a half years.  The view to which I have come, particularly having regard to the matter on which Mr Leask placed emphasis, that is the specific finding in favour of the applicant, that there was no intention to injure, is that a sentence of three and a half years, if there had been no plea of guilty, would have been excessive and challengeable.  In my opinion, the sentence imposed of two and a half years does not reflect any significant allowance, from what would have otherwise been the sentence, for the plea of guilty.  The course which I would favour is to leave the head sentence stand as it is and, by way of allowance for the plea of guilty, make a reduction in the non-parole period.  I favour allowing the appeal, not altering the head sentence, but making a recommendation that the applicant be considered for parole after having served nine months of the two and a half year sentence.

THE PRESIDENT:  I agree.

THOMAS JA:  I agree.

THE PRESIDENT:  The orders are the application for leave to appeal is granted.  The appeal is allowed.  The sentence below is varied, by adding a recommendation for eligibility for parole after serving nine months of that sentence, otherwise the sentence below is confirmed.