R v Roberts[2002] QCA 105

COURT OF APPEAL

McMURDO P

BYRNE J

PHILIPPIDES J

CA No 367 of 2001

THE QUEEN

v.

CORALIE ANNE ROBERTSApplicant

BRISBANE

DATE 20/03/2002

JUDGMENT

BYRNE J:  Upon her pleas of guilty, the applicant, who was born in April 1972, was sentenced to nine months' imprisonment in respect of unlawful wounding, three months for common assault and six months for assault occasioning bodily harm whilst armed. 

The sentences, which were imposed in the Townsville District Court, were ordered to be served cumulatively. 

Recommendations were made as to participation by the applicant in a substance abuse education program and as to her residency in an alcohol rehabilitation centre on Palm Island, where she ordinarily lived whilst on parole.

In November 1999, on Palm Island, the applicant committed offences of common assault and assault occasioning bodily harm whilst armed.  The victim on that occasion was her de facto husband. She punched him in the face and struck him over the head with a piece of pipe.  A laceration that required suturing resulted.

About a fortnight later, upon her pleas of guilty in the Townsville District Court in respect of those offences, she was ordered to perform 100 hours community service.  She was re-sentenced for these offences when sentenced in respect of the unlawful wounding with which this application is concerned.  That unlawful wounding took place in early February last year, less then three months after the community service orders had been made. 

On the night in question, there was an argument between the applicant and her de facto husband concerning his consumption of alcohol.  She wanted him to remain sober to assist in caring for their child.  He, however, became drunk, aggressive and abusive.  He produced a knife, waved it at her, and then lunged at her.  Fortunately, he missed. 

She responded by packing her things and taking the child to her grandmother's house. There, unfortunately, she consumed alcohol.  After a time, the complainant arrived at the applicant's grandmother's house where he abused and threatened the applicant.

The complainant then retreated to another house.  There the applicant eventually arrived, carrying with her a knife.  She had taken the weapon from her grandmother's house.  She then stabbed the complainant once in the shoulder region.  This caused a wound that was not particularly extensive.  It was but eight millimetres deep and 15 to 20 millilitres long.  The wound was successfully repaired with only three sutures.

In deciding upon the appropriate sentence, the Judge referred to a number of considerations.  These included the prevalence of stabbings on Palm Island and what his Honour regarded as a consequential need for deterrent sentences in respect of offences of that kind. 

Mention was also particularly made of a condition of the community service orders in force at the time the unlawful wounding took place in early February 2001, namely the usual condition that a person affected by such an order must not commit any other offence during its operation.

The sentencing remarks acknowledged the applicant's consumption of alcohol at the time the offence was committed.  The Judge, conventionally, added that though the consumption of alcohol may offer an explanation for the applicant's reaction to the complainant's conduct that evening, nonetheless that could not excuse it.

The Judge also referred to the fact that the 100 hours of community service had been completed, that a plea of guilty had been entered in respect of the unlawful wounding to an ex officio indictment, and that the offence in question appeared to be motivated by what the Judge characterised as "a poor reaction to pressures and stresses associated with the applicant's relationship with the complainant".

The Judge had the advantage of a report from the Palm Island Community Justice Group.  A meeting from which the report resulted had been attended by the applicant.  She is said to have demonstrated remorse at the meeting in an appropriate manner and to have appeared genuinely sorry for her behaviour. 

The report describes her as someone who had previously participated in attempts at rehabilitation in connection with her problems with alcohol; and it is said that she had reduced her alcohol intake since the offence was committed and was willing to live again at a local rehabilitation centre.

The Group concluded that the applicant would benefit from another community-based order:  one which would include directions requiring her to live at the rehabilitation centre and to attend programs offered there for the duration of the order.

A victim impact statement from the complainant, which apparently takes the form of a transcription of notes of things said by the complainant in an interview, informed the Judge that the complainant was still in love with the applicant and had forgiven her for the offence.  The complainant believed that he was upset and confused on the evening and did not know why the applicant had behaved as she did.

Several submissions are made in support of the present application.  It is said that the Judge failed properly to take into account the complainant's provocative behaviour, the applicant's initial attempts to avoid confrontation by moving to her grandmother's house, and the minor nature of the wound.

As to these, it is sufficient to say that the Judge's sentencing remarks, which traversed these areas, would not support these contentions.

It is next said that the case was not an "extremely serious" example of unlawful behaviour, contrary to the Judge's view expressed to that effect in his sentencing remarks.  Now, it is true that there were no serious physical consequences from the injury, which is indeed fortunate.  But the applicant had chosen to arm herself with the knife before setting out from her grandmother's house to find the complainant and then to stab him.  This is a serious aspect of the matter.

It was also complained that the Judge had characterised the report of the Palm Island Community Justice Group as "extremely subjective".  Something to that effect was said during the course of argument.  But nothing of the kind was said in the Judge's sentencing remarks.  And so no significance can be attributed to the comment during the argument.

In any event, the Judge, as he was required by section 9(2)(o) of the Penalties and Sentences Act 1992 to do, plainly had regard to the Community Justice Group report, as his sentencing remarks reveal.  Of course, he was not bound to accept the ultimate recommendation of the group, but to consider the report; and that he has done.  He has also taken into account other considerations which seemed to him to weigh significantly in the balance.

In the circumstances, it cannot be concluded that insufficient significance was attributed to the report as one of the factors to be taken into account in fashioning a suitable sentence. 

The report, it should be added, emphasised that remorse was demonstrated at the meeting.  That the report said so, but that the Judge did not refer specifically to that aspect of the report, was also the subject of submission. 

It was said that the report demonstrated remorse and attempts at rehabilitation which were inadequately recognised in the sentence and in the sentencing remarks, and that the sentence failed to reflect the way in which the applicant had responded to her community service.  She had completed her community service of 100 hours in four months, which was commendable, and had done so with what the local community development manager reported as a "positive response to supervision".

The applicant's major complaint concerning this aspect of the sentencing remarks was that the Judge's recognition of remorse was restricted to the remorse emerging from the guilty pleas, rather than that evidently expressed at the group meeting. 

It is not, I think, possible to take the view that considerations of remorse were not sufficiently regarded. 

The subject of remorse is expressly referred to in the sentencing remarks. 

It is true that the reference comes in the context of the plea of guilty; but this is scarcely an adequate basis for a conclusion that the Judge erred in principle by failing to record significance to remorse more generally evidenced.

Other mitigating or material circumstances upon which reliance was placed included contentions that the sentence failed to reflect the applicant's intention to resume caring for her young children as soon as her home on Palm Island could be properly renovated by the local council, and that as unlawful woundings go, the case fell, so it was said, at the very bottom of the scale of seriousness.

However, the Judge plainly appreciated the nature and extent of the relatively small injury; and there is no reason to suppose that the material mitigating circumstances were ignored or accorded insufficient weight.

Especially in view of the applicant's prior conviction and that the offence with which the Judge was concerned occurred during the operation of a community service order, in my opinion it has not been demonstrated that the sentencing discretion miscarried. 

I would refuse the application.

THE PRESIDENT:  I agree.  The Judge's sentencing remarks reflect the tension between, on the one hand, the compassionate recommendations in the helpful report of the Palm Island Community Justice Group which focus on the applicant's rehabilitative prospects and her reaction to earlier threatened violence and, on the other, to questions of general deterrence to bring home to members of all communities, including Palm Island, that violent responses are not acceptable.

The particularly serious aspect of this offence is that it occurred whilst the applicant was under a community-based order for an offence of violence against the same complainant.  Despite the applicant's otherwise sound record and her plea of guilty, it cannot be said that the sentence was manifestly excessive. 

I agree the application for leave to appeal should be refused.

PHILIPPIDES J:  I agree.

THE PRESIDENT:  That is the order of the Court.