R v Wilson[2001] QCA 215

COURT OF APPEAL

McPHERSON JA

WILLIAMS JA

ATKINSON J

CA No 211 of 2000

THE QUEEN

v.

JAMES DAVID WILSONApplicant

BRISBANE

DATE 01/06/2001

JUDGMENT

McPHERSON JA: The applicant for leave to appeal against sentence in this case was convicted on his own plea of guilty in the District Court at Brisbane in June 1997 of one count of wounding with intent to disfigure. 

The sentence imposed was imprisonment for 13 years with a recommendation for parole after six years. The application is brought before the Court on the basis essentially of the submission that the sentence is manifestly excessive having regard to sentences of what are said to be a comparable kind. 

The circumstances of the offence can be summarised as follows.The offence was committed on 4 January 1997 at the complainant's place of employment which was a shop in a well-known shopping centre in Brisbane. The applicant and the complainant had been married in 1989 and there were four children of the marriage. Their relationship was marked by periodic violence on the part of the applicant towards the complainant, in the course of which she was stabbed or injured on more than one occasion. They separated in 1996 after one such attack.

When the complainant later began seeing another man, the applicant threatened her life and members of the family.  On 27 December 1996 the applicant went to the complainant's home where she was living with her children and slashed all her clothing, and then he went to her workplace and slashed the tyres of her car.

The threats by him continued for some time, with the applicant on one or more occasions saying he was going to cut off the complainant's lips. As a result, an interim domestic violence order was made by the Magistrates Court. The complainant and her children sought refuge in a women's shelter, and the domestic violence hearing was set down for 6 January 1997.

On 4 January, with the hearing imminent, the applicant went to the complainant's place of employment, doing so in contravention of the interim order that already existed. He was armed with a knife, and in front of other employees, customers and members of the public, he grabbed the complainant by the hair and proceeded to slash her with the knife on her face, arms, back, neck and buttocks. She managed eventually to escape and was helped by a staff member. The applicant then plunged the knife into his own chest and collapsed.  His life was saved by prompt medical treatment. 

His personal circumstances are that he is, or at the relevant time was, aged 40 years and has an extremely bad criminal record involving offences of violence of various kinds. He was convicted of armed robbery, committed while he was on parole for a conviction of rape. He sustained five convictions for rape between 1977 and 1980 involving three different women. He also has a conviction for attempted carnal knowledge of a girl aged 10 to 14 years, an indecent assault on another girl under 16 years and an indecent assault on a woman. There is an assault occasioning bodily harm; another of recklessly causing serious injury; of using a firearm to prevent lawful apprehension. Altogether he has been sentenced to prison on seven occasions with sentences of two, four, five and seven years' imprisonment.

The maximum penalty for the offence of wounding with intent to disfigure is life imprisonment. The factors tending to increase the sentence in this case are self-evident, such as the appellant's criminal history, including offences against the person, serious and sexual, which also show a preparedness to employ weapons like knives. There are consequences for the victim in this case which were severe both physically and psychologically. The children also suffered psychological harm, and members of the public were subjected to a terrifying experience.

The attack was largely motivated by revenge, and it falls to be viewed in the light of the pre-existing domestic violence order, which seems to be what provoked the applicant into the particular action that he took. He has been the subject of examination by one or more psychiatrists. Dr Grant's report, given on 18 May 1997, holds out little hope for a discontinuance of the offending behaviour. The prognosis for the applicant is therefore, in that respect, not good, although there has, it would seem, been some improvement in his condition since he was first incarcerated on this occasion.

The most serious aspect of the case plainly is that the assault was a premeditated and carefully calculated action designed to cause maximum terror and distress to the victim. In that, it succeeded, and the complainant has now been left to bear the consequences for the rest of her life. The victim impact statement produced to the sentencing Judge shows her pitiable condition, and one has to say that in many ways she is the innocent victim of something which no person at all could view with anything but horror. The injuries to her face will never be completely corrected, and she will carry their consequences for the rest of her life.

The case is not one involving an act committed in the course of a fit of sudden and ungovernable rage precipitated by the sort of stresses that arise from matrimonial and other relationships of the kind. The only explanation is that, in committing this offence, the applicant was not in a normal or balanced frame of mind at the time he committed the offence.

We were referred to a number of sentences, which were relied on as comparable. It is right to say that none of them, to my mind, are altogether similar or even fairly comparable with this. My impression is that in most of them the actions  and their consequences, terrible as they were in the harm inflicted on the victims, were the result not, as here, of careful premeditation, but of the ungovernable rage or passion of the moment.

Looking for comparisons of any real assistance, I think it is necessary to go to cases involving, for example, the use of acid deliberately to disfigure women's faces. A case to which our attention was drawn was that of The Queen v. Nelson in 1981, where a sentence of six years imprisonment was increased on appeal to 10 years for an offence of throwing sulphuric acid with intent to disfigure and succeeding in doing so.

Here, if account is taken of the very serious injuries that were sustained by the complainant in this case, the impact on the family, the terror through which she has had to live, and, as well, the extensive record of serious offences committed by the applicant, it is difficult to see that a sentence of 13 years is out of range.

My opinion is that some more consideration might, perhaps, have been given to mitigating the offence by reason of the plea of guilty and, perhaps, also to some extent on account of the applicant's mental condition. But the benefits that the applicant could have expected to derive from those factors would not, in the circumstances as we now have to view them, lead to much, if any, reduction in the sentence. Certainly it would not be such as to justify the intervention of this Court in relation to the sentence imposed here on the ground put forward that it is manifestly excessive.

It is the highest, or one of the highest, that has been imposed for an offence of this kind; but, for the reasons I have given, which the Judge below himself took into account, it was a case in which a very high sentence was justified.

I would therefore refuse the applicant for leave to appeal against sentence.

WILLIAMS JA: A sentence of 13 years imprisonment on a plea of guilty to a charge of wounding with intent to disfigure does appear, at first glance, to be on the high side. Certainly it is a greater sentence than has frequently been imposed for convictions of that offence, but in my view this case must be considered in the light of its own peculiar facts and circumstances.

The applicant has an appalling criminal record, details of which have been set out by the learned presiding Judge. It is not usual to find in a criminal history five convictions for rape involving three separate women over a period of some three years. That, to my mind, indicates the character of person that the Court is here concerned with.

It should also be noted that his first conviction resulting in imprisonment was on 8 October 1975 when he was convicted of assault occasioning actual bodily harm.

What makes the circumstances of the present offence far worse than normal is the degree of pre-planning and the specific intent that was involved.

On 28 December 1996 the applicant telephoned the complainant and quite specifically told her of his intent to attack her at her place of employment and to inflict serious injury upon her. That threat was repeated over the ensuing weeks. He made a threat to kill her with a knife in front of customers. He made another threat to scar her so badly that no man would look at her after which he would kill himself. Finally, he made a threat to cut off her lips.

In the light of those threats the complainant obtained a domestic violence order which was served on the applicant. Thereafter he purchased a knife, and taking that knife with him on 4 January 1997 went to her place of employment. He there very calculatedly and deliberately carried out the threat that he had earlier made to disfigure her at her place of employment. 

There were a number of slashes and stabs with the knife. Her face, arms, back, neck and buttocks sustained injury. She has been permanently disfigured and that, of course, has had significant psychiatric impact on her, and also on the children of the marriage. That was the intent of the applicant.

Therefore this was a very carefully pre-planned assault with an intent to disfigure carried out in the light of the fact that a domestic violence order had been obtained and in spite of the fact that the applicant knew that the police had been alerted to the threats that had been made. It was one of the worst examples, in my view, of the offence of wounding with intent to disfigure.

Whilst cases such as Campbell, CA No 187 of 1994, 3 August 1994 can be distinguished, nevertheless the fact that a sentence of 13 years imprisonment for causing grievous bodily harm with intent was there upheld demonstrates that there are cases where an offence of this nature may result in a sentence of about 13 years imprisonment.

Whilst the injuries sustained by the complainant in Campbell's case were more serious, it should be noted that the offender there had no previous convictions.

The learned presiding Judge in his reasons referred to Nelson, CA 271 of 1981 where a sentence of six years imprisonment was increased on appeal to 10 years for the offence of grievous bodily harm with intent to disfigure.

As was noted, that was a case where acid was thrown on the face of the woman. What in my view is significant is that Nelson had no criminal history. If 10 years was the appropriate sentence in Nelson's case then, given this man's criminal history, I am not satisfied that a sentence of 13 years imprisonment here was manifestly excessive.

In all the circumstances, bearing in mind the factors that I have highlighted in these reasons, I am not persuaded that the sentence is manifestly excessive. I therefore agree that leave to appeal against sentence should be refused.

ATKINSON J: I agree for the reasons given by Mr Justice McPherson and Justice Williams that the application for leave to appeal against sentence should be refused.

McPHERSON JA: The application is dismissed.