R v Curley[2002] QCA 140

WILLIAMS JA:  As a result of events which occurred on the 3rd of January 2001, the applicant pleaded guilty to one count of unlawful wounding and one count of occasioning bodily harm whilst armed.

The victim was the applicant's adult daughter.  Both had been drinking at their residence on Palm Island on the day in question and it seems clear that both were significantly affected by the alcohol they had consumed.  An argument developed apparently over the issue of care for the victim's young child.

The applicant struck her daughter over the head with a Stones Corner Ginger Wine bottle causing the bottle to shatter.  That incident constituted the count of assault occasioning bodily harm whilst armed.  Then, the applicant thrust the broken bottle into the area of the victim's throat and chin.  As a result, the victim suffered an 8 centimetre laceration to the anterior neck region overlying the trachea.  Seventeen sutures were necessitated in that wound.

There was also a laceration to the chin area which required nine sutures.  That latter incident constituted the offence of unlawful wounding.  The pleas of guilty were entered in the District Court at Townsville on the 3rd of December 2001.  Of concern is the fact that the plea of guilty to unlawful wounding constituted the third conviction for that offence committed by the applicant within a period of about three and a half years.

On the 18th of August 1997, again whilst affected by alcohol, the applicant had stabbed her de facto in the left side of the chest.  While she was still on bail awaiting trial for that offence, on the 6th of July 1998, she again stabbed her de facto in the left side of the chest as a result of an argument.  Again, it would appear that alcohol was a significant factor in the commission of that offence.

I note, but these matters are of somewhat lesser significance, that she also does have, in her criminal history, other convictions for offences involving assault.  It was not disputed by counsel that because this was the third conviction for an offence of unlawful wounding the head sentence had to be somewhat higher than that which would be fixed by a review of authorities for a single offence of unlawful wounding.

In consequence, I do not find any of the authorities which were referred to as comparables of particular assistance.  However, general reference can be made to Henry, CA 349 of 1996, and Row Row, CA 382 of 1997. 

Pursuant to paragraph (o) subsection (2) of section 9 of the Penalties and Sentences Act, a report was placed before the sentencing Judge from the Palm Island Community Justice Group.  That Group had convened a meeting with the applicant, her de facto partner, and the complainant.  The Group reported that the applicant demonstrated remorse and appeared genuinely sorry for her behaviour.

Apparently, by the time of that interview, a good relationship had been re-established between the applicant and her daughter.  There was a suggestion that the applicant's intake of alcohol had been reduced since the incident.  The report also indicated that the applicant was prepared to discuss with members of the Group further remedial action in relation to her drinking problem.

Also, it is of some significance that the victim, the applicant's daughter, indicated to the Group that she would rather have her mother in the community.  The Group considered that the applicant was not a danger to the community at large.  So it is a situation where there was an early plea of guilty, an indication of genuine remorse, an indication of a willingness to address the background drinking problem and an acceptance by the community that the applicant was not a danger to them.

In all the circumstances, I am of the view, having regard to the earlier convictions for unlawful wounding, that a head sentence of four years was within range.  It is of some significance that the offence in question occurred only three months after the probation period fixed with respect to the earlier offences expired.

However, in my view, making a recommendation for eligibility for parole after 21 months, that is only three months prior to statutory eligibility coming into force, failed to give proper weight to the mitigating factors including, in particular, the plea of guilty and the remorse.

In my view it would be appropriate to mould the order so that the applicant served only 18 months of the four years' sentence.  The choice is between making a recommendation for eligibility for parole after 18 months or acting under the section 144 of the Penalties and Sentences Act and suspending the sentence after 18 months has been served.

In my view, the latter course is preferable in all the circumstances of the case.  I would grant leave to appeal, allow the appeal, delete the recommendation that the applicant be eligible for parole after serving 21 months and, in lieu thereof, order that the sentence of four years' imprisonment be suspended after the applicant had served 18 months.  I would fix the operational period as a period of four years.

DAVIES JA:  I agree.

HELMAN J:  I agree.

DAVIES JA:  The orders are as indicated by Justice Williams.