R v James[2000] QCA 477

COURT OF APPEAL

WILLIAMS J

CULLINANE J

DOUGLAS J

CA No 201 of 2000

THE QUEEN

v.

JIM CHRISTOPHER JAMES Applicant

BRISBANE

DATE 21/11/2000

JUDGMENT

WILLIAMS J:  This is an application for leave to appeal against sentences imposed in the District Court at Townsville on 24 July 2000.  On that date the learned sentencing judge had to deal with a breach of a suspended sentence and also to impose sentence with respect to a plea of guilty to a charge of unlawful wounding. 

The offence in each of the two matters was virtually the same and involved the same complainant.  In consequence, it is appropriate to deal first with the facts giving rise to the first offence in point of time, namely doing grievous bodily harm. 

The applicant is a resident of Palm Island and resides there in a de facto relationship with a woman by the name of Parker.  The first offence occurred on 9 April 1998 and the applicant pleaded guilty to that charge on 18 March 1999.  It appears that the complainant had been stabbed with a knife in the leg.  The wound on that occasion was some six centimetres deep and death was imminent because of blood loss.  That is why the offence charged was grievous bodily harm. 

Apparently at the time the applicant had been drinking and there had been some sort of argument between he and his defacto.  The learned sentencing judge on that occasion imposed a sentence of two years and it was ordered that it be suspended after a period of nine months.  The operational period was fixed as a period of three years. 

The applicant apparently served the nine months of that sentence and was then released from custody.  The second offence, that of wounding, was committed on 23 April 2000, well within the operational period.  On that occasion, he apparently returned to his residence in a drunken state at about 3 a.m.. 

There was an argument with the complainant.  He kicked her with his bare foot then obtained a knife and stabbed her in the left leg.  On this occasion the wound was six centimetres long and one and a half centimetres deep.  It required five stitches.  That of course, or the plea of guilty to that second offence of course constituted the breach of the suspended sentence.

The learned sentencing judge concluded that he was satisfied that it would not be unjust to order the applicant to serve the whole of the suspended sentence.  Indeed, that was not seriously opposed by the applicant's counsel.  So, with respect to the breach of suspended sentence, the applicant was ordered to serve fifteen months imprisonment.  There is no appeal from that.

The learned sentencing judge then turned to the second offence.  He referred to the fact that the circumstances of the two offences were almost identical, that a knife was used, that the complainant was the same and on each occasion there had been a stabbing in the leg.  He said, justifiably, it was a fairly serious, unlawful wounding. 

He then went on to say that he took into account the plea of guilty and the fact that the offence had been freely admitted.  Finally he indicated that the penalty to be imposed had to have a deterrent aspect.  It was in those circumstances that he imposed a cumulative sentence of three years imprisonment. 

The challenge to the sentence is based on two propositions.  First of all, that the learned sentencing judge failed to give any appropriate discount for the plea of guilty and secondly, that having regard to the totality principle of sentencing, the sentence of three years cumulative on the 15 months was manifestly excessive.

If the sentences stood, then the applicant would not become eligible to apply for parole until he had served 25 and a half months and that, of course, is in addition to the nine months he had already served with respect to the first sentence. 

The authorities placed before the Court indicate that a sentence of three years imprisonment for the wounding offence would be at the top of the range.  In those circumstances it is difficult to see that there was any allowance made for the plea of guilty in fixing the term at three years imprisonment.  Further, I am of the view that when the sentences are taken together, as they must in the circumstances, they do offend the totality principle. 

In my view, a sentence of two years imprisonment for the unlawful wounding gives adequate recognition to the early plea of guilty and also when imposed cumulatively on the 15 months period for the suspended sentence, does not offend the totality principle.  On that basis, the applicant would not become eligible to apply for parole until he had served 19 and a half months, that again, being in addition to the nine months already served.

It is also worth noting that in the circumstances of this particular case it may well be that the applicant would not be released on parole immediately upon his becoming eligible to apply for it. 

In all the circumstances I would grant leave to appeal, allow the appeal and substitute for the sentence of three years cumulative a sentence of two years cumulative. 

CULLINANE J:  I agree with the orders proposed by the presiding Judge and with the reasons he has given.

DOUGLAS J:  I agree.

WILLIAMS J:  The order of the Court will be as I have indicated.

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