R v CAC[2006] QCA 191

SUPREME COURT OF QUEENSLAND

MACKENZIE J:  The applicant who was aged about 16 years and one month at the time of the offence, seeks leave to appeal against an order of two and a half years' detention with no order under section 227 of the Juvenile Justice Act 1992 for early release imposed following his conviction by a jury of grievous bodily harm.  The applicant will be required to serve 70 per cent of the term before release.  There were no special circumstances that required reduction below that figure. 

The offence occurred at Southbank on the evening of the Riverfire Fireworks on 28 August 2004.  The applicant's girlfriend had become involved in a dispute with his former girlfriend.  In the course of separating them he struck his former girlfriend who immediately complained by mobile phone to her current boyfriend who was one of a group of youths of which the complainant was a member who were elsewhere in the Southbank precinct.  She named the applicant as the person who had hit her.

The group, including the complainant, set off to find the person who had struck the girl.  The complainant, having been given information that led him to believe that the group that included the applicant was responsible, started to punch one of the group and knocked him to the ground.  That youth tried to run away so he grabbed him and knocked him to the ground again.

Another person from the applicant's group swung a punch at the complainant who avoided it and started punching him.  He knocked him to the ground as well and then started kicking him in the body.  While he was doing that, he felt what he described as two stings which proved to be the infliction of stab wounds with a thin bladed knife.

The boyfriend of the girl also gave evidence.  The girl had phoned him after she had been hit and according to the witness said that it was the applicant who had done it.  He went and found her and was talking to her.  He turned around and saw the complainant getting into a fight.  He ran towards the fight and as he did so he saw someone chasing him and caught a glimpse of a knife in the person's hand.  He ran away and when he turned around he realised that the person was no longer chasing him. 

When he got back to where the fight had been he saw that the complainant had been stabbed.  The application was argued essentially on two footings.  One was that the sentence was manifestly excessive having regard to the facts of the case and comparable sentences.  The second was that the learned sentencing Judge had acted on errors of fact when sentencing the applicant and had failed to give proper weight to relevant factors.

It is convenient to deal with the ground relating to errors of fact first.  The first two of those in the written submissions were not pursued.  They related to the issue of residual injuries at the time of the trial and whether the applicant chased the associate of the complainant.  The matter was one that went to trial and it must not be overlooked that this was a sentence after trial.

The learned sentencing Judge who had the advantage of seeing the witnesses including the applicant who gave evidence said that he did not believe that he was acting in self defence or defence of another when he used the knife.  He then said, "I believe that you used the knife offensively in a fight.  In all probably you chased MT away with the knife before coming behind the complainant."  That is expressed as a finding on the balance of probabilities.

Following a guilty verdict, the power and responsibility of determining the punishment to be inflicted upon the offender rests with the Judge and not with the jury.  There is no principle that sentencing must proceed on the view of the facts open to the jury, consistent with their verdict, most favourable to the accused person, Cheung v The Queen (2001) 209 CLR 1.

The third error of fact relied on was the description of the observation made by the learned trial Judge immediately after discussing the applicant's attempts to avoid coming to the notice of police and manipulating witnesses as a reference to an uncharged act of interfering with the witness.

The learned trial Judge referred to a witness, whom the learned sentencing Judge was satisfied had perjured himself, saying "I assume he did so because of fear of retribution from you or others if he gave truthful evidence."

Two things may be said about this.  The witness was part of a group including the applicant which the learned trial Judge may reasonably have accepted was a cohesive group.  The learned trial Judge had the advantage of the atmosphere of the trial.  Witnesses, according to counsel for the applicant, had been declared hostile and the applicant's bail had been revoked.

In any event, the statement made is somewhat equivocal.  He referred to it initially in the context of referring the evidence of one of the witnesses to the Attorney-General and it is a factor that, if found by the learned sentencing Judge would, in any event, have been relevant to the issue of remorse.

The matters raised in connection with the submission that the learned trial Judge had ignored or failed to give proper weight to relevant matters were that the applicant had, when confronted by people in the group associated with the victim, who were aggressive, not immediately resorted to violence or used the knife, and had only used the knife when his friend was being assaulted.

It was also submitted that the learned trial Judge had ignored or failed to give proper weight to items 16 and 17 of Shedule 1 to the Juvenile Justice Act which set out underlying principles that a child should be dealt with under the Act in a way that allows the child to be reintegrated into the community and that a child should be detained in custody for an offence only as a last resort and for the least time that is justified in the circumstances. 

Those provisions, while setting out important principles, are plainly dependent on the circumstances of the individual case in which they are to be applied.  If the offence is so intrinsically serious that resort to detention as a punishment is the only justifiable outcome, it should be for the least time that is justified in the circumstances.  When detention must be imposed, the principle that a child should be dealt with in a way that allows him or her to be reintegrated into the community must be read subject to that.

Having found that, with the advantage of hearing the evidence in the context of the trial at which the applicant's position was that he denied stabbing the complainant as self defence or defence of another, the learned trial Judge's findings that he did not believe that the applicant was acting in either of those ways and that he used the knife offensively in the fight are plainly findings he could have made. 

He said that the true seriousness of the offence emerged from a number of circumstances.  One was that the applicant had carried a knife into a public place at which many people had gathered with, as events proved, a preparedness to use it.  He had actually used the knife in circumstances where he approached the complainant from behind during a fight between the complainant and other people and stabbed him twice.  It must be observed, of course, that the complainant was behaving himself in a totally unacceptable manner but that does not minimise the fact that he had been stabbed without warning.

One of the knife wounds caused a life threatening injury to the complainant.  The complainant had been left with some residual effects from the wound.  The applicant had also attempted, in the period immediately after the stabbing, and later, to avoid identification and apprehension and to manipulate the evidence provided to the police.

The learned trial Judge summarised his view by saying that the offence was a particularly serious one.  He said that anyone who carried and used a potentially lethal weapon such as a knife on another person could anticipate a sentence in which the emphasis is placed on general deterrence and public repugnance. 

In saying that he echoed the comments of the Chief Justice in R v Lewis; ex parte Attorney-General [2003] QCA 133.  The maximum penalty for the offence was seven years' imprisonment.  The applicant had no relevant criminal history.  He went to trial and his position was that he denied any part in the offence.  He demonstrated no remorse and was not entitled to any leniency for cooperating for the course of justice.

The comparative sentences to which we were referred show that there are cases in which a 12 month period of detention has been imposed.  Generally, they have been cases where there has been a plea of guilty and, as is generally the case, they are factually not wholly identical with the present case. 

In at least two of them, the fact that the applicant had a knife in his possession was clearly identified to and by the complainants who nevertheless were stabbed without getting away from the situation.  The offence was a serious one.  There was a plea of not guilty.  The knife was carried by the applicant to a public venue.  It was an attack without warning from the rear against a complainant who was not expecting to be dealt with in that way.

The learned trial Judge had advantage of seeing the course of the trial and determining the seriousness of the offence overall.  He made findings of fact and, in the circumstances that it was a trial and the atmosphere was particularly important, it is not open to us to second guess his assessment of the overall gravity.

The sentence is a higher one than appears in some of the other comparatives but, in my view, the serious factors to which reference was made in the Court below and which I have recounted account for the fact that it is at the level at which it is.  In the circumstances, I would refuse leave to appeal.

de JERSEY CJ:  I agree.

HOLMES JA:  I agree.

de JERSEY CJ:  The application is refused.