R v Kingelty & Griffiths[2000] QCA 198

COURT OF APPEAL

PINCUS JA

DAVIES JA

MUIR J

CA No 390 of 1999

THE QUEEN

v.

JODIE MARIE KINGELTY  Applicant

CA No 413 of 1999

THE QUEEN

v.

BRADLEY JAMES GRIFFITHS  Applicant

BRISBANE

DATE 26/05/2000

JUDGMENT

PINCUS JA:  These are applications for leave to appeal against sentence.  Each of the applicants pleaded guilty to a charge of having unlawfully attempted to kill one Wagner. Griffiths was sentenced to 10 years' imprisonment and Kingelty to eight years' imprisonment.  The learned sentencing Judge added to Kingelty's sentence a declaration of guilt of a serious violent offence, the result being, as his Honour pointed out, that Kingelty would have to serve at least 6.4 years' imprisonment.

The background of the offence was that the complainant and Kingelty had been in a de facto relationship and a child was produced.  There were incidents of violence which resulted in Kingelty obtaining a domestic violence order which was twice breached, the second breach having taken place in July 1997.  After that time Kingelty continued to express some dissatisfaction with the complainant's conduct, on the ground that he had too little contact with their child.  On the day the offence was committed, the complainant, it is said, mocked Kingelty on the telephone.

It seems clear that the attempt at killing was the result of an arrangement made between the two offenders.  A person who had met Kingelty on the afternoon of the day of the attempt, which occurred at night, said that Kingelty told her the complainant was "going down".  Kingelty drove Griffiths to the complainant's home that night, the latter being armed with what was described as a cane knife.  Kingelty waited outside with the engine running in the vehicle.  Griffiths went inside with the knife and swung it at Wagner, missed him a few times, and then connected with his head, producing a fractured skull.  Fortunately there was no disability consequent upon that fracture.

The complainant moved away and then decided to try to tackle Griffiths so that he could escape.  Griffiths continued to swing his weapon at him.  The complainant, being cornered, put up his arm to protect his head and received an injury which cut about two-thirds of the way through the left arm. The complainant then escaped, chased by Griffiths who was yelling out that he was going to kill him.  At that stage there were further attempts to strike the complainant all of which failed except one which caused bruising.  The complainant then ran back towards his unit and called out to the people who had been with him to call the police and Griffiths attacked no further.

Griffiths then went to the vehicle and said, "I've got him." and was driven off.  A witness heard a female voice call out from the direction of the vehicle, "I'm going to kill you."  Both Griffiths and Kingelty, it appears, had liquor taken but it was not contended, below or here, that this was a mitigating factor.

When the police came to Griffiths he declined to be interviewed, apart from telling them, when they asked for the knife, that it had gone.  Kingelty was also approached by the police and admitted she had been in the vehicle, that she had seen Griffiths leave with the knife and come back and had driven him away, but she declined to answer any further questions.  As I have mentioned, they both pleaded guilty.

Perhaps surprisingly, surgery on the arm was successful in rejoining various vessels and, after a number of operations, the complainant has been left with some significant use of his left hand; but he has been prevented from continuing his operation as a signwriter because of difficulty with climbing.  The Judge was told that another operation might effect further improvement.  It seems likely that if the blow which struck the left arm, which was held up to defend his head, had struck the complainant's head, it would have killed him.

The case was one in which there was no proximate provocation.  The attack seems to have been motivated, quite irrationally, by some past grievances.  Kingelty was 24 years of age at the time of the offence and Griffiths 22.  She had a few previous offences, each of which had produced a fine.  In 1998 she was convicted of obstructing and assaulting police and fined a total of $750.  Griffiths had also committed some offences, none of any great significance.

The principal grounds on which Mr Chowdhury challenges the sentences are that they should have been less than were imposed in view of the pleas of guilty and lack of any relevant criminal history.  It seems clear, at least to me, that the application by Kingelty has more substance than that of Griffiths, since she was not directly involved in the violence.  The difficulty for her, on the other hand, is that she seems to have intended to occur the sort of thing which did occur, her only disappointment perhaps being that the complainant was not actually killed.

My own impression is that of the two sentences the one which is more open to argument is that relating to Kingelty and I have, myself, had some doubt about the proper fate of that application.  In the end, however, it seems to me to be impossible to conclude that either application can succeed.  Both, in my opinion, were sentences within range and I would dismiss the applications.

DAVIES JA:  I agree generally with the reasons of Mr Justice Pincus and the orders which he proposes.  My only qualification is that I do not share the doubts which he does with respect to Kingelty's sentence.  It is for two reasons, firstly, Griffiths was carrying out her wish, and secondly, even when she was confronted with the stark reality of Griffiths hacking at the helpless complainant with the cane knife, she shouted out words of encouragement.

MUIR J:  I agree generally with the reasons of Mr Justice Pincus and with the orders he proposes.

PINCUS JA:  The orders will be applications refused.

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