R v Murgha[2012] QCA 255

COURT OF APPEAL

MARGARET McMURDO P

HOLMES JA

HENRY J

CA No 119 of 2012

DC No 54 of 2012

DC No 164 of 2012

DC No 165 of 2012

THE QUEEN

v

MURGHA, Wungee RexApplicant

BRISBANE 

DATE 24/09/2012

JUDGMENT

THE PRESIDENT:  On 10 May 2012 the applicant, Wungee Rex Murgha, pleaded guilty to unlawfully doing grievous bodily harm to his de facto partner at Palm Island on 9 July 2011.  He also pleaded guilty to the related summary offence of breach of a domestic violence protection order.  These offences were committed during the operational period of six suspended sentences.  He was sentenced to three years imprisonment for the offence of grievous bodily harm.  He was convicted but not otherwise punished in respect of the summary offence.  The suspended periods of imprisonment were activated concurrently.  His parole release date was set at 3 May 2013.  In light of seven days presentence custody declared as time served under the sentence, this means his parole release date was after 12 months.  He has applied for leave to appeal against his sentence on the ground that it is manifestly excessive. 

He was represented at sentence but is now self-represented.  He did not file any written outline of argument.  In his oral submissions he emphasised that he wanted to be home for Christmas and that he would like to be released from prison after six months rather than 12.

He was 18 at the time of the offence and 19 at sentence.  He had a criminal history.  In November 2010, he was placed on 80 hours community service without conviction for endangering the safety of a person in a vehicle with intent; wilful damage of police property and failure to appear.  In June 2011, he was found to have breached the community service order.  The order was revoked and he was sentenced to an effective term of six months imprisonment to be suspended for one year.  He was also convicted and sentenced to three months imprisonment for unlawful use of a motor vehicle; entering a dwelling within intent at night; assault and obstruct police officer; and failing to appear.  Convictions were recorded and he was sentenced to an effective terms of six months imprisonment to be suspended for one year.  In August and December 2011, after the commission of this offence, he was convicted but not further punished for breaches of bail. 

The Prosecutor at sentence tendered a schedule of facts.  The applicant was the respondent to a domestic violence protection order in favour of the complainant taken out on 22 February 2011.  At around 8.30 pm on 9 July 2011, he and the complainant, who was four months pregnant, began to argue at home.  She called him a "motherfucker".  He went into the kitchen and picked up a knife.  He pretended to throw the knife at her saying, "Don't think I'm gammin, I throw this knife at you."  The complainant's grandmother told him to put the knife down and he did.  The complainant said something else to him.  He picked up the knife and forcefully threw it towards her head.  It became embedded in her skull.  She tried to pull it out and cut her hand.  Family members rang the ambulance and she was taken to the Palm Island Health Service.  The applicant left.

The knife had penetrated the complainant's skull and travelled seven millimetres into her right parietal lobe.  She was transferred to Townsville Hospital where the knife was surgically removed by drilling into her skull.  She was likely to make a full recovery.  Her injuries, if left untreated, would have endangered or have been likely to endanger her life or cause or likely to cause permanent injury to her health by way of severe intra-cerebral infection.

The committal proceedings were by way of hand up statements only.  The applicant was charged with unlawful wounding until the prosecution obtained a medical statement to confirm that the injury was life-threatening and amounted to grievous bodily harm.

The prosecutor submitted a sentence in the range of four to six years imprisonment was appropriate, relying on R v Bryan; ex parte Attorney-General (Qld)[1] and R v Johnson.[2]

Defence counsel made the following submissions on the applicant's behalf.  The applicant did not leave the scene to avoid detection but went to his mother's house nearby.  When the police arrived there, he cooperated and was remorseful.  He said he wanted to kill himself.  He was not experienced in throwing knives and he was shocked at what he had done.  The complainant had attended Court that day with their baby son.  In a handwritten letter which was tendered she stated that she and the applicant had been together for two years.  He was a very good father.  Although they were separated he regularly cared for their child on weekends to give her a break.  She wanted their son to grow up knowing his father.  They planned to reconcile once this all was over.  She found it hard to cope as a single parent without his assistance.  She loved him and asked the judge to help him in every way possible.

A letter from the applicant's mother was also tendered.  She confirmed he was devoted to his young son.  He came from a good home on Palm Island and both his parents worked.  He was genuinely remorseful and had good prospects of rehabilitation. 

The applicant's older brother, a private in the Army Reserve based in Cairns, also provided a supportive letter for the applicant.

A teacher at the Palm Island school stated in a tendered letter that he had known the applicant for six years.  Prior to disengaging from education, he was a respectful student.  He had supportive parents who were concerned for his wellbeing.  His mother worked at the school and was a committed mother and member of staff.  The applicant was a skilled fisherman and hunter. 

Defence counsel submitted that the applicant planned to undertake an apprenticeship as a boilermaker.  The sentencing range for this offence was between 18 months and three years imprisonment.  Because of the exceptional circumstances in this case, a significantly lesser term of imprisonment was appropriate with an early parole release date.

In his reasons for sentencing, the primary judge noted that the use of knives in domestic disputes on Palm Island was all too common.  It required a deterrent sentence.  The applicant had committed other offences in the preceding 12 months.  He picked up the knife and threw it at his victim, recklessly indifferent to the consequences.  His victim wanted him dealt with leniently.  He had significant family and community support.  The offence occurred in circumstances where he was emotionally upset.  He was remorseful afterwards and he had no previous convictions for serious personal violence.  The victim was expected to make a full recovery. The offence was constituted by a single act, not a sustained attack.  It was difficult to define a range when considering a penalty for offences of this kind.  Deterrence was needed but the applicant was young and would benefit from a parole order when released from prison to encourage his rehabilitation.  The appropriate sentence was three years imprisonment with a parole release date after 12 months.  The judge imposed no further penalty in respect of the breach of domestic violence order and activated previously suspended sentences concurrently.

In determining this application I note that the offence was extremely serious.  The maximum penalty was 14 years imprisonment.  It was fortunate, bordering on the miraculous, that the complainant did not suffer permanent injury.  Despite the applicant's youth, early guilty plea, cooperation, and prospects of rehabilitation with his supportive family, the judge rightly identified that a deterrent sentence was necessary.  The offence was committed in breach of a domestic violence order during the operational period of a series of suspended terms of imprisonment.  His Honour's observation that the applicant would benefit from a significant period on parole was also apt.  R v Johnson[3] and R v Baker[4] demonstrate that the sentence imposed was not manifestly excessive.  The applicant has not demonstrated any error in the primary judge's approach to fixing the sentence.  The application for leave to appeal should be refused.

HOLMES JA:  I agree.

HENRY J:  I also agree.

THE PRESIDENT:  The order is the application for leave to appeal is refused.