R v Melissant[2003] QCA 122

SUPREME COURT OF QUEENSLAND

ATKINSON J:  On the morning the applicant was due to stand trial in the Supreme Court in Mackay, he pleaded guilty to unlawfully wounding Shellie Marie Burston with intent to do grievous bodily harm.  This guilty plea was accepted in discharge of an indictment on which he was also charged with attempting unlawfully to kill Ms Burston.  He was sentenced on the following day, 27 November 2002, to six years imprisonment with a declaration that he had been convicted of a serious violent offence.  The 58 days of pre-sentence custody were declared to be time already served under the sentence of imprisonment.

The circumstances of the offence were that the complainant, Ms Burston, and the applicant had been in a turbulent relationship for some years with several separations.  A child of the relationship was born in 1997.  The applicant was the subject of a domestic violence order in relation to the complainant.  In October 2000, the complainant moved out of the house that she shared with the applicant and returned to live with her parents.  In January 2001, she moved into a house of her own opposite her parents' house.  It seems that the relationship was ongoing and that the applicant would, on occasions, turn up at the house and stayed the night.

On 24 October 2001, the applicant turned up at the complainant's house and there was an argument.  On 25 October 2001, the applicant returned, and at the least, by that time, the complainant told him that their relationship was at an end.  He went into the kitchen and grabbed a large butcher's knife.  He then charged at her knocking her back against the pantry door and started to stab her in a frenzy.  He grabbed her by the hair and then lifted her head, placing the blade of the knife against her neck.  She managed to struggle free.
 

Her screams had attracted the attention of her father who came to the front door.  The applicant then ran out.  He had also run the knife across his own throat causing a significant injury to his throat and also to his arm.

The complainant suffered terrible injuries with at least six wounds including a 4cm-deep laceration to the right side of her neck in the supra-clavicular area, which narrowly missed major vessels;  a single deep laceration to the anterior abdominal wall;  and four lacerations to the left arm, forearm and armpit, one of which was 5cm deep.  The injury in the armpit penetrated into her lung.  This caused blood to collect in the bottom of the lung causing breathlessness and chest pain.  She was hospitalised, underwent surgery, and suffered intense pain.

At the time of sentencing, the complainant's victim impact statement showed that she was still unable to use her left arm to its full capacity and was therefore unable to carry out her former duties as an ambulance attendant.  She underwent surgery again in July 2002 due to complications of the abdominal stab wound.  She is still restricted in her ability to carry out the daily responsibilities of a single mother of two young children.  The offences have had a serious psychological effect on her.

The applicant had a criminal history which included offences of violence.  In 1988, he was convicted of two counts of assault.  In 1992, the applicant was convicted on one count of wilful and unlawful damage to property.

On 28 February 1996, he was convicted of assault occasioning bodily harm which occurred on 23 November 1995.  In that case, the applicant punched the complainant through an open car window.  The complainant was the ex-husband of Ms Burston who had come to the house to collect a child of that marriage.  On 24 April 1996, the applicant was again convicted of assault occasioning bodily harm.  The offence occurred on 24 March 1996 and involved kicking the same man whom he had considered was indirectly responsible for the death of then girlfriend's child.

The applicant's personal circumstances were relevant to the sentence imposed.  He was born on 9 February 1962 and so was aged 39 at the time he committed the offence.  After leaving school at the end of year 10, he was employed as a contract cane cutter.  Thereafter, he remained in employment throughout his adult years working with Queensland Rail for 18 years and then in the earthmoving business.  A number of friends and business colleagues spoke very highly of him in references tendered in his favour.  The learned sentencing Judge took those matters into account and also took into account, in the applicant's favour, his plea of guilty.

His Honour declared the conviction to be a conviction of a serious violent offence saying:

"I think that it is plainly a case in which the Court's discretion should be exercised in favour of a declaration that the offence of which you have been convicted, is a serious violent offence."

In his written submissions, counsel for the applicant relied upon a number of grounds, but in his oral submissions only pressed the first ground which was:

Having regard to all of the circumstances of the offence, the sentence was manifestly excessive.

He submitted that a sentence of six years imprisonment should have been imposed without a declaration that the applicant had been convicted of a serious violent offence.  He referred in oral submissions to the case of R v Dempsey fn: [2001] QCA 141; CA No 356 of 2000, 17 April 2001 which was similar in many ways but had some significant differences where a sentence of seven years was imposed without a declaration.

The applicant in this case was declared to be convicted of a serious violent offence as part of the Judge's sentencing discretion pursuant to section 161B(3) of the Penalties and Sentences Act 1992.  Section 161B(3) is found in Part 9A of that Act.  This sub-section provides that if an offender is convicted on indictment of an offence listed in the schedule to the Penalties and Sentences Act and sentenced to five or more, but less than 10 years, of imprisonment for the offence, the sentencing Court may declare the offender to be convicted of a serious violent offence.  The offence of which the applicant was convicted under section 317 of the Criminal Code is listed in the schedule of serious violent offences.

The effect of the declaration that the applicant has been convicted of a serious violent offence is that he is not eligible for a post-prison community based release order until he has served 80 per cent of his sentence of imprisonment:  see Corrective Services Act 2000 s 135(2).

In R v Bojevich fn: [2002] QdR 183, the court, in a unanimous judgment confirmed the unfettered discretion to make a declaration under section 161B(3).  In particular, the court set out the following principles:

(1)The courts will not attempt to subvert the intentions of Part 9A by reducing what would otherwise be regarded as an appropriate sentence;

(2)A sentencing process is a single integrated one in which the combination of all available options needs to be considered rather than a compartmentalised discretion in which the court first determines the quantum of the imprisonment, and then, having decided on that, considers the further question whether a declaration should be made under s 161B fn: Brown (2000) 110 A Crim R 499 at 505; and

(3)The courts will heed the additional statutory emphasis that has now been placed on protecting the community from violent offenders.

In this case, the declaration made by the learned sentencing Judge that the applicant had been convicted of a serious violent offence was amply justified by the nature of the offence, including the frenzied attack on an unarmed woman in her home;  the use of a large butcher's knife, the number of stab wounds inflicted;  the intention to cause grievous bodily harm;  the physical and psychological effect of the offence on the victim;  the continuing impact on her work and domestic life;  and the applicant's history of violent offending.

I would refuse the application for leave to appeal against sentence.

THE CHIEF JUSTICE:  I agree.  In my view, the matter can usefully be looked at also in the converse, having regard to all of the matters to which Justice Atkinson has referred including the legislative intent behind part 9A of the Penalties and Sentence Act.

Had the declaration not been made, the six year sentence would, in my view, have been manifestly inadequate.  As has been said a number of times, sentencing Courts must be astute to the legislative intent plainly underlying part 9A.  This learned Judge was and the sentence must be sustained.

WILLIAMS JA:  I agree with what has been said by each of my colleagues.

THE CHIEF JUSTICE:  The application is refused.