R v Age[1999] QCA 64

COURT OF APPEAL

DAVIES JA

THOMAS JA

MUIR J

CA NO 437 of 1998

THE QUEEN

v.

CAIN MATTHEW AGE  Applicant

BRISBANE

DATE 15/03/99

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the Supreme Court on 28 October last that on 31 December 1997 at Etna Creek Prison he unlawfully wounded Ian James Naylor.  He was sentenced to three years' imprisonment cumulative upon sentences then being served.  He seeks leave to appeal against that sentence.  No grounds of appeal were furnished but I shall mention shortly the main basis upon which he seeks, not as I understand it a reduction of the sentence which was imposed, but a recommendation for parole.

The offence occurred inside prison.  The applicant assaulted the complainant with a disposable razor with the safety guard removed, thereby exposing the blade.  There is some dispute as to how the assault came to take place but on neither view was it provoked by the complainant.  According to the applicant's counsel on the sentence hearing, the complainant had agreed to supply amphetamines to the applicant but later said he could not.  The applicant then said that he would take the television set which the complainant was watching in his cell.

He decided to go to the cell, he said, to threaten the complainant, but he argued with him and he then attacked him with a razor.  It may be accepted for the purpose of this appeal that that was a correct version of events.  Notwithstanding that the attack was vicious and cowardly.  It included a substantial slash to the left-side of the complainant's throat, which wounded him severely causing a laceration about seven and a half centimetres in length, penetrating the skin and totally dividing the left external jugular vein.

The attack was cowardly because even without the use of a weapon the applicant could easily have overpowered the complainant, being a much larger and stronger man.  There was a further element of seriousness in this assault in that it was committed within a prison, and consequently liable to make the task of prison discipline even more difficult than it now is.  The applicant declined to speak to the police after the assault and his version of it came out much later. 

The applicant has a prior history of violent offending and lack of discipline.  He was convicted in 1994 for rioting, in 1995 for unlawful assault and two assaults occasioning bodily harm, again in 1995 for an assault occasioning bodily harm whilst in company and stealing with actual violence whilst in compay, in 1996 for obstructing police and unlawful use of a motor vehicle, and in 1997 for robbery, two counts of wilful destruction of property, one in which bodily harm was caused, one of unlawful use of a motor vehicle, and one of receiving.

For the offences committed in 1997 the applicant received a sentence of three years' imprisonment, the longest which he had received before this sentence.  He was serving that sentence when this offence occurred.  At the sentence hearing counsel on each side were in agreement as to the range, the three years which were imposed being at the upper end of that range, but the prosecutor argued for, and the appellant's counsel argued against, a declaration that the offence was a serious violent offence.  The learned sentencing Judge did not make that declaration. 

The applicant, as I have said, does not appear to seek a reduction in his sentence, but seeks to obtain a recommendation for parole after 18 months.  That recommendation was not sought below.  The respondent's counsel also points out to this Court today that even if such a recommendation were made it would not be substantially less than, upon the calculation done under the Corrective Services Act, the applicant would become eligible for parole.

When the sentence which he was serving at the time of commission of this offence is added to the cumulative sentence which was imposed in this offence, the halfway point in that sentence, Mr Bullock for the respondent points out, would be 20 June 2000.  In fact the applicant told us today that his eligible parole date would be 18 January 2000. 

But the complaint which the applicant makes appears to be one against the prison system rather than against the sentence which was imposed below.  He says that he was illegally processed through the system, that he has been moved from one prison to another and thereby he has been unable to complete the courses which would entitle him to become eligible for early parole.

Those are not matters which are the subject of an appeal against sentence to this Court.  This Court is only concerned with the correctness of the sentence which was imposed below.  The only thing which could have been said in the applicant's favour, in this case, was his plea of guilty and the time and cost which that saved.  But in my view, that was adequately taken into account in the sentence which was imposed.

In my view, the sentence which was imposed which, as I have mentioned, was within the range suggested by counsel on both sides, was one which was appropriate and certainly not outside the range of an appropriate sentence, even when the matter to which I have referred in the applicant's favour is taken into account.

Moreover, as the sentence which the applicant seeks to substitute is only slightly different from that which was imposed, I would for all those reasons refuse this application.

THOMAS JA:  I agree.

MUIR J:  I agree.

DAVIES JA:  The application is refused.