R v Tyson[2006] QCA 483

SUPREME COURT OF QUEENSLAND

THE CHIEF JUSTICE:  The applicant pleaded guilty to two offences; unlawful wounding committed in Townsville on the 7th of April 2005 and grievous bodily harm committed there on the 10th of February 2006.  She was on the 8th of September 2006 sentenced in the District Court to one year's imprisonment for the wounding. She had served 57 days presentence custody in respect of that and another matter, so that could not be made the subject of a declaration.  For the grievous bodily harm she was sentenced to three years' imprisonment cumulatively.  The overall sentence was therefore four years. 

The sentencing Judge fixed 8 March 2008 as the parole eligibility date, which was 18 months into the future.  In fixing that date, however, he took account of the circumstance that the applicant had served 204 days' presentence custody in respect of the count of grievous bodily harm.  He emphasised that the presentence custody was not again to be taken into account.  The result is that the applicant will have to serve approximately two years actual incarceration; in other words one half of the overall head term of four years' imprisonment.

Each of the offences was spontaneous, unpremeditated and involved the applicant stabbing the victim three times in a public place in the context of alcohol-fuelled argumentation within a group of people.  She committed the later offence while on bail for the wounding.  The wounding itself involved breach of a domestic violence order.  Each of those factors, obviously, is one of aggravation.

Each victim was consequently hospitalised, it seems only overnight, and fortunately was left with no residual effect beyond scarring.  Only suturing was required.  There was no victim impact statement tendered to the Court.  It was a potentially life-threatening loss of blood which put the later case into the grievous bodily harm category.

The applicant is an itinerant alcoholic from a deprived Palm Island background.  She has a substantial prior criminal history, the entries on which are consistent with the features just mentioned.  She was 48 years old when sentenced.  Facing a sad reality, the defence counsel before his Honour sought a sentence which would minimise the period for which the applicant would be on parole, because of the prospect - put forward as being inevitable - that she would breach the conditions of her parole and be taken back into custody.

Allowing for the applicant's pleas of guilty and other relevant circumstances, it appears that in requiring the applicant to serve an effective two year term, his Honour most likely worked from an overall head sentence of six years or so.  A question arises whether allowing for the totality principle that was manifestly too high.  Mr Campbell, who appeared for the respondent, relied on the six years imposed in Johnston [2004] QCA 12 following a trial.

Johnston was a particularly serious case for the lack of provocation and the apparently premeditated aspect of the attack.  Also that victim suffered very serious injuries.  The instant attacks, though concededly two of them, were quite spontaneous and fortunately occasioned much less serious injury.  In Johnston reference was rightly made to the strengthening of penalties for inner city violence on the part of often younger aggressive offenders, who are armed, with little or no provocation.  I do not see the present case as falling into that particularly grave category, while noting the obvious need to deter the spontaneous use of knives in drunken situations like the present. 

There can be no complaint about the 12 months' imprisonment imposed for the wounding, and of ordering the further term for the grievous bodily harm to be served cumulatively, and none was made. But in my respectful view the term of three years then imposed cumulatively was manifestly too high.  What the Judge then did was effectively set the parole entitlement half way through the overall term of four years.  Allowing for the pleas and the other mitigating features, though there were not many of them, it meant the head term otherwise selected for the grievous bodily harm must have been substantially longer than three years. 

Cases to which we have been referred, especially Friday, Court of Appeal 264 of 2005, suggest that approach to have been manifestly excessive even after proper allowance is made for the prime need generally to deter the commission of crimes of violence by the use of knives, while also appropriately recognising the totality principle.  See also R v. Shillingsworth [2002] 1 Queensland Reports 527 535.

The problem may be appropriately addressed by reducing the cumulative term of three years to two years and bringing back the parole release date from 8th March 2008 by eight months to 8th July 2007.  That will involve an overall head term of three years of which the applicant will have to serve 10 months in addition to the approximately six months presentence custody already served prior to her being sentenced.  Compare the position of Friday, who for one offence of wounding with a knife against a background of domestic violence breaches leading to imprisonment, was required to serve nine months.

I would order -

1.That the application be allowed.

2.That the sentences imposed in the District Court on 8th September 2006 be varied in these respects.

(a)    By substituting for the three years' imprisonment imposed in respect of the count of doing grievous bodily harm, two years' imprisonment.

(b)   By setting 8th July 2007 as the parole release date in lieu of 8th March 2008.

(c)   Otherwise confirming the orders then made.

JERRARD JA:  I agree.

...

JERRARD JA:  I agree.

HOLMES JA:  I agree.

THE CHIEF JUSTICE:  The orders are as I indicated ultimately.