R v L[2002] QCA 517

SUPREME COURT OF QUEENSLAND

[1]  McPHERSON JA: I agree with the reasons of Philippides J for dismissing this application.  The Court is indebted to Mr Boe for his appearance in this matter at such short notice.

[2]  JERRARD JA:  I have read the reasons in draft of Philippides J and agree with her reasons and proposed order.

[3]  PHILIPPIDES J: This is an application for leave to appeal against a sentence imposed on the applicant on 30 August 2002 on the ground that the sentence was manifestly excessive.  The applicant, who was aged 16 years at the time of the offence, was sentenced in the Children’s Court at Brisbane upon his plea of guilty to the offence of doing grievous bodily harm with intent.  He was sentenced to 12 months detention.  A conviction was recorded and a declaration made that the 68 days spent in presentence custody be time already served.

[4] The circumstances of the offence arose out of a fight on 13 October 2001 involving two groups of young men.  One group, which included the complainant, was waiting at a bus stop at Runcorn at 10:30 pm.  A member of the second group of youths, which included the applicant, asked the complainant for a cigarette.  The complainant indicated that he did not have any and when the bus arrived moved towards it with his wallet ready in his hand. The wallet was knocked from the complainant’s hand by a member of the applicant’s group.  The complainant then became engaged in a struggle with one of the youths from the applicant’s group.  The complainant and his companion broke free and ran across the road to distance themselves from the group.  They were pursued by the applicant and others from his group, with the applicant striking the complainant with what the complainant initially thought was a silver stick.  The complainant, upon noticing that he was bleeding, realised that the applicant was in fact armed with two machetes and called out words to the effect of  “don’t cut me”, but to no avail. 

[5] The complainant and his companion managed to escape from the applicant by running across the road through traffic and boarding a bus.  He was bleeding profusely from a cut to his chest and losing consciousness.  Police and emergency services were contacted and the complainant was taken to hospital, where he was found to have a 15 cm laceration to his upper chest that extended to the eleventh rib and had penetrated through to muscle tissue.  He also had three superficial puncture wounds to his back, shoulder and arm.  

[6] The applicant was interviewed by police the following day.  The applicant told police that he had been talking on a mobile telephone, when a companion became involved in the altercation with the complainant.  He stated that he was unaware as to how the altercation had started. The applicant admitted to carrying the machetes and to striking the complainant several times with them.  The applicant’s possession of the machetes was explained on the basis that he had them on him in anticipation of a fight, which was to have taken place later that night after a party.  One of the machetes had a threaded grip, which the applicant explained was to improve the grip when it was used in fighting.  The machetes had been hidden in bushes and were later retrieved. 

[7] The applicant has a minor criminal history relating to property offences.

[8] In imposing the sentence, the learned sentencing judge took into account, in the applicant’s favour, his plea of guilty, the fact that he did not initiate the altercation, his strong family support, his compliance with strict bail conditions, his age and the fact that he had “a lot of potential” and came from a good family with a good work ethic. 

[9] However, the sentencing judge also considered the fact that the applicant had gone armed, with two “vicious looking machetes”, in anticipation of another fight; that the attack was sustained; that significant injury was inflicted with the potential for more serious injury; the lack of provocation by the complainant; the need to protect the community and hold juvenile offenders accountable; and the need to send a strong message to young men not to carry weapons.  His Honour considered that, although a last resort, detention was appropriate in this case.  His Honour considered that a sentence of two years detention would normally have been appropriate, but reduced that to 12 months, taking into account the applicant’s circumstances of mitigation.

[10]  In written submissions on behalf of the applicant, it was submitted that the sentence imposed was excessive, bearing in mind the following:

(a) the applicant’s limited prior criminal history which had only attracted light penalties;

(b) the fact that the applicant had already spent 68 days in custody prior to sentencing and had spent some 9 months on bail with strict conditions to which he had adhered;

(c) the fact that the applicant was in the process of completing year 12 and the consequent interference to his schooling;

(d) the applicant’s strong family support and excellent prospects of continuing employment in the family bakery;

(e) the applicant’s remorse and positive behaviour in participating in programs at the Brisbane Youth Detention Centre;

(f) the potential for negative emotional impact arising from the applicant’s currently unique ethnic status in the detention centre.

[11]  Mr Boe, who appeared as amicus curiae, submitted in addition, relying on R v Amituanai (1995) 78 A Crim R 588, R v W & C (CA Nos 495 and 496 of 1995, 22/03/96) and R v S (CA No 323 of 1999, 1/12/99),  that the learned sentencing judge erred in failing to take into account the distinction between the potential for injury in this case and the actual injury sustained by the complainant.  He also submitted that the learned sentencing judge failed to give sufficient weight to the recommendations in the presentence report.  Further, Mr Boe also submitted that the learned sentencing judge failed to take into account that there were special circumstances present in this case relevant to the exercise of the discretion pursuant to s 188(2) of the Juvenile Justice Act 1992 (“the Act”).  It was thus submitted that proper regard to that section would have resulted in an order that the applicant be released from detention before serving the 70% of the full 12-month period of detention, otherwise automatically applying.  The special circumstances relied upon in this regard were the positive prognosis in the presentence report, the applicant’s family support, his adherence to the bail conditions imposed upon him, the period of presentence custody and his educational aspirations.  As to the latter matter, it was said that if the applicant were to serve the 70% of the full 12-month period, that his schooling would be interrupted, in that he would only resume his year 12 studies in March 2003.  It appears that his year 12 studies were interrupted in the latter half of 2002, as a result of the sentence imposed in this matter. 

[12]  Counsel for the respondent submitted that the sentence imposed was appropriate in the circumstances, given that the applicant’s violence was gratuitous, in that the complainant was unarmed and had retreated from the altercation when the applicant became involved, and bearing in mind that the applicant was in company when he pursued the complainant and had continued to strike him despite pleas for him to stop.  It was also emphasised that injuries to the complainant’s torso evinced the applicant’s intention to cause him serious injury, and that the attack only ended when the complainant escaped.

[13]  Counsel for the respondent referred to R v J (CA No 398 of 1995, 28/11/95) and R v B (CA No 150 of 1995, 7/06/95) as being comparable cases.  R v B involved a 16-year old offender who was sentenced to 12 months detention for one count of grievous bodily harm and two years probation for wounding.  B had become drunk and aggressive at a party.  After the complainant suggested he leave, B took a knife and in the course of a struggle to disarm him, the complainant was cut on the left arm and suffered serious injury and permanent disability to his left hand.  The Court of Appeal upheld the sentence as appropriate in circumstances where B deliberately drew the knife and used it to cause serious and permanent injury.

[14]  In R v J, a 13 year-old offender was sentenced to 12 months detention to be released after serving 6 months, after pleading guilty to one count of grievous bodily harm.  The offence arose out of an ongoing argument between two groups of boys at school.  The complainant sought out J and pushed and punched him.  J drew a knife and stabbed the complainant in the upper abdomen, penetrating the right lung and right side of the heart.  The complainant required emergency surgery.  The Court of Appeal upheld the sentence, emphasising the need for deterrence.

[15]  On behalf of the applicant, it was sought to distinguish these cases on the basis that the injuries inflicted in those cases were more serious with more lasting consequences than was the case here.

[16]  However, it should be noted that the sentencing court in both those cases referred to the need to express, by a sentence having general deterrent effect, the community’s repugnance to young persons going armed in public with sharp weapons and using them.  The learned sentencing judge in this matter referred to the same important principle and the sentencing remarks show the judge described the facts accurately and applied the relevant sentencing principle correctly.  I do not consider that it has been shown the learned sentencing judge erred in failing to give sufficient weight to the presentence report.  Nor do I consider that the sentence imposed indicates that his Honour failed to bear in mind the distinction between the potential for injury and the actual injury sustained by the complainant. 

[17]  No submissions were made to the learned sentencing judge in respect of s 188(2) of the Act and his Honour did not specifically refer to that provision.  However, I do not consider that there were any “special circumstances” in this case such that it can be said that the learned sentencing judge erred in the exercise of his discretion in failing to make an order under s 188(2) of the Act.  The matters relied on as special circumstances were matters which his Honour took into account by way of mitigation.  As regards the matter of the applicant’s educational aspirations and the interruption to his schooling, it appears that the applicant will, in any event, repeat year 12 this year and whilst there will be some disadvantage to him in not being released prior to the start of the school year, that disadvantage is offset by the fact that the applicant has already completed a large portion of his year 12 studies.

[18]  I do not consider that the sentence imposed by the learned sentencing judge was outside the sentencing discretion, particularly bearing in mind the need for deterrence in relation to carrying such dangerous weapons in public and the reasons why the applicant had the weapons in his possession. 

[19]  In the circumstances, I would refuse the application for leave to appeal.