R v Dunn[2007] QCA 153

SUPREME COURT OF QUEENSLAND

HOLMES JA:  On 26 of February 2007, the applicant was sentenced to six years imprisonment with a serious violent offence declaration on one count of grievous bodily harm with intent to do grievous bodily harm and eight years imprisonment, again with a serious violent offence declaration, on one count of manslaughter.  167 days pre-sentence custody was declared.  He does not quarrel with the sentence for grievous bodily harm with intent, nor with the head sentence imposed on the manslaughter. Rather, his contention is that serious violent offence declarations ought not to have been made. 

The killing and the grievous bodily harm arose out of an altercation between two groups of people in a suburban neighbourhood, the applicant being a member of one group and the deceased, Allan Jordan, and the injured man, Kenneth Gilbert, the other. 

Gilbert and the applicant had had words earlier about a minor matter.  Gilbert made some racist remarks to the applicant and the incident escalated into fisticuffs.  Gilbert got the better of the applicant and then released him but the applicant was in a state of fury and wanted to resume the fight.  The police were called and matters settled down. 

However, Gilbert decided to resume hostilities.  To gain the support of some acquaintances, he cut his own head with a piece of glass and claimed that the injury had been inflicted by the applicant.  He persuaded five friends, armed variously with a baseball bat, a fighting stick, a fence paling and a metal stick, to go with him to the yard of the house in which the applicant was spending the evening in order to take revenge.  They banged on the door of the house and did some damage to it and also set about damaging cars parked outside.  They were yelling threats.  Other people were attracted to the scene, so that the group of aggressors may have looked bigger than it really was. 

The applicant ran to confront the group with a baseball bat, accompanied by a man named Ford, who was carrying a shovel.  One of Gilbert's group swung his baseball bat and hit someone, it is not clear whom, but the applicant retreated inside the house with a bleeding cut to his chin. One of the occupants of the house, meanwhile, was making a 000 call to the police.  The applicant can be heard on the recording of that call yelling that he was getting knives and would kill whoever was "starting"; presumably, starting the fight. 

The applicant went outside again and approached Gilbert, who took him in a head lock and started punching him in the head, and then realised that the applicant was punching him in the stomach.  It dawned on him that he had in fact been stabbed.

He received six stab wounds:  three in the back, two to the upper left side of the chest and one to the left upper abdomen.  He sustained a collapsed lung and a laceration to his left kidney.  Of the three stab wounds to the back, two were shallow, but the other one was deep and fractured the L3 vertebrae.  A medical report indicates that without medical attention he would probably have died from those wounds.

Meanwhile, others in the two groups fought each other.  It does not appear that Jordan took any active part in the altercation.  At some point, it is not entirely clear whether before or after his stabbing of Mr Gilbert, the applicant was seen to come up behind Jordan who, the learned sentencing judge found, was actually leaving the scene, and give him what looked like a bear hug. 

Jordan received a stab wound on the left side of the body between the 8th and 9th rib which would, according to the pathologist who examined his body, have required a moderate degree of force.  That wound was fatal.  Some blood vessels were severed and Jordan died of blood loss before he could be treated.  Mr Jordan was in a de facto relationship and was the breadwinner for his family, consisting of himself, his de facto partner, and his two children. 

The Crown accepted a plea of guilty to manslaughter because there was a single low wound, so that the necessary intent to kill might have been difficult to prove, and also because there was an aspect of provocation.  The matter had been listed for trial, but agreement was reached to the Crown accepting pleas to the two charges, so that the applicant was entitled to credit for those guilty pleas.

The applicant was 24 years of age and had a criminal history commencing when he was 17 years old, extending up until the time of these offences: four drug offences dealt with in the Magistrates Court; a series of break and enter offences committed when he was 15, but dealt with after he was an adult in the District Court and resulting in probation and community service; some other dishonesty offences in 2004 dealt with in the Magistrates Court; a number of wilful damage charges; breaches of bail conditions on two occasions; and four breaches of domestic violence orders. He had only been imprisoned once, when he was sentenced on a breach of a domestic violence order to 12 months imprisonment, suspended after 17 days for a period of two years.  That suspended sentence was still operative at the time of this offending. 

A psychologist's report was tendered on his behalf.  He was the father of three children, one from a previous relationship and two in his current de facto relationship, and also contributed to the financial support of his de facto wife's two older children, of whom he was not the father.  He had a history of substance abuse, using cannabis, speed and ecstasy, and on occasions binge drinking.  The psychologist did not identify any serious pathology, although testing suggested the applicant was likely to become violent when he was intoxicated.

The applicant had spent some time in custody, but on his release on bail after about five and a half months had been employed as an electrical worker.  He had favourable references from three of his supervisors in that work. 

At sentence it was submitted that the learned sentencing judge should approach the manslaughter as one committed in excessive self defence.  Her Honour observed, however, that at the time the applicant left the house with the knives, the police had been called and there was no need to go outside again.  She accepted an element of provocation in the assault on Mr Gilbert, but described the stabbing of Mr Jordan as "a wanton act of violence".  It was almost inevitable when the applicant took knives out into the fight that someone would be seriously injured or killed.  A serious violent offence declaration was accordingly called for. 

The applicant submitted that there was nothing about the offence here in terms of its duration, degree of force or context which took it out of the ordinary run of cases. Nor was the offence of grievous bodily harm “out of the norm”. And, it was submitted, there was nothing in the circumstances of the offending or the background of the applicant which indicated a need to make a declaration in order to protect the community or to reduce the risk that the offending would be repeated. Those submissions, clearly, were made with reference to the factors set out in R v McDougall and Collas [2006] QCA 365, one of the cases on the applicant's list of authorities.  The applicant submitted that the offences here arose from an excessive response by the applicant to violence and taunting by Gilbert and the group with him which included Jordan. 

For the Crown it was submitted that the applicant's response was retaliatory rather than spontaneous.  He purposefully left the relative safety of the house armed with knives, and not only inflicted multiple wounds on Gilbert but attacked from behind a man who was walking away.  But for Gilbert's contribution to events, it was submitted, a sentence well above 10 years would have been appropriate. The contribution of Gilbert and to a lesser extent Jordan justified reducing the sentence to eight years, but the facts that the applicant had armed himself in advance, retaliated against two victims and persisted in his conduct justified the making of a declaration. 

It was also relevant that the applicant had behaved in a threatening way to Gilbert earlier and thus had himself contributed to the escalation of events. Other less relevant factors were that the applicant had dishonestly minimised his own role in his interview with the police and that he was on a suspended sentence at the time of the offences. 

It is clear from her Honour's sentencing remarks that she regarded the applicant's return to the melee as entirely unnecessary in terms of any form of defence.  That, together with his deliberately taking two knives with him, with the obvious potential for inflicting serious injury or death, and the wantonness of the attack on Mr Jordan who was unarmed and retreating, all justified the making of the declarations. 

Those features, together with the reality that the applicant stabbed not one but two people that night, were in my view such as to warrant requiring the applicant to serve 80 per cent of the head sentence of the eight years and a sentence of eight years without any such declaration would have resulted in inadequate punishment.  The factors identified by her Honour rendered the offences of such a serious nature as to warrant the declarations. 

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

WILLIAMS JA:  I agree.

JERRARD JA:  I agree. 

WILLIAMS JA:  The order of the Court is that the application for leave to appeal against sentence is dismissed.