R v Dancey[2013] QCA 135

SUPREME COURT OF QUEENSLAND

[1] MUIR JA: I agree that the application should be refused for the reasons given by Ann Lyons J.

[2] PHILIPPIDES J:  I agree with the judgment of Ann Lyons J and with the order proposed.

[3] ANN LYONS J:  The applicant seeks leave to appeal a sentence which was imposed by the District Court in Ipswich on 19 November 2012.  The applicant was charged with one count of unlawfully doing grievous bodily harm on 16 November 2011.

[4] The sentence imposed was five years imprisonment, which was to be cumulative on a current sentence which had a full time release date of 25 April 2013.  The applicant was given a parole eligibility date of 25 August 2014 after serving 16 months of the cumulative sentence.  There was no presentence custody which could be declared.

[5] The applicant argues that the head sentence should have had a greater moderation due to the fact it was being served cumulatively on a sentence that he was already serving.

The circumstances of the offence

[6] The applicant had been drinking with friends in their unit.  The friends became tired and wanted to go to bed so they asked the applicant and his girlfriend to leave.  The applicant responded aggressively because he had transport problems.  He picked up a knife in the kitchen and stabbed the complainant once in the chest before discarding the knife on the ground and leaving.

[7] The complainant suffered a serious laceration to his lung and was hospitalised for a number of days.  The pulmonary laceration was 2.5 centimetres long and five centimetres deep.  It had penetrated the right middle lobe of his right lung and caused a hemothorax.  He had an intercostal catheter in place for three days.  It was clear that the laceration to the lung had resulted in a large volume of blood in his thoracic cavity and was an injury of such a nature that if left untreated would endanger his life.

[8] The applicant was arrested by police on 4 December 2011 in New South Wales in relation to another matter and extradited to Queensland.  He subsequently pleaded guilty at an early opportunity.

Submissions on sentence

[9] At sentence, the Crown Prosecutor contended that a combination of excessive alcohol and anger had resulted in gratuitous violence amongst friends.  The Crown Prosecutor also contended that there was no genuine remorse because the applicant’s account of the offence to Dr Freeman, who prepared a psychiatric report for the Court, was that it was an accidental stabbing.  He told the psychiatrist that he was holding the knife and flicking it when the complainant had spun around and accidentally walked into it.

[10] Significantly, Dr Freeman’s report also indicated that the applicant was a high risk of reoffending as his offending is influenced by his aggressive and impulsive behaviours and lack of consideration for the consequences of his actions.  Dr Freeman also considered that he lacked insight into the origins of his offending behaviour.

[11] The Crown Prosecutor relied on the decisions of R v Bryan; ex parte Attorney-General (Qld)[1], R v Johnston[2] and R v Thomason; ex parte Attorney-General (Qld)[3] to argue that a sentence in the range of six to seven years was appropriate.  In particular, it was argued that the decision in Bryan set the range at a minimum of six years for offences of gratuitous violence in public and that the decision in Johnston had endorsed that range even though the stabbing there had occurred in the privacy of a home.  It was argued that the range submitted had been endorsed by the Court of Appeal decision in Thomason where a sentence of four and a half years had been increased to six years with a serious violent offence declaration.

[12] The Crown Prosecutor acknowledged, however, that the learned sentencing judge would have to moderate the sentence as the sentence was required to be served cumulatively on the sentence he was currently serving.  The sentence had to be cumulative as the stabbing had occurred whilst the applicant was on parole.

[13] The Crown Prosecutor also submitted that if a sentence of less than five years was imposed, then a parole eligibility date under s 160C(5) of the Penalties and Sentences Act 1992 (Qld) requiring that he serve 80 per cent of the head sentence could also be imposed.  The Crown Prosecutor relied on the decisions of R v Assurson[4] and R v McDougall and Collas[5] to argue that the parole eligibility date should be set beyond the half way mark.  The decision of McDougall and Collas had listed the relevant principles as follows:

"The considerations which may lead a sentencing judge to conclude that there is good reason to postpone the date of eligibility for parole will usually be concerned with circumstances which aggravate the offence in a way which suggests that the protection of the public or adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required by the Act having regard to the term of imprisonment imposed. In that way, the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside 'the norm' for that type of offence."[6]

[14] The Crown Prosecutor submitted that such an approach was appropriate in this case because the applicant had a lengthy criminal history and a psychologist’s report which showed a high risk of reoffending.  The Crown Prosecutor ultimately argued that the starting point should be six to seven years which could be reduced to five as it was a cumulative sentence.  It was also submitted that there should be a serious violent offence declaration requiring that the applicant serve 80 per cent of the sentence.

[15] Defence Counsel argued that the applicant had not gone to the home armed or with any premeditation and that only one blow was involved.  Defence Counsel submitted that, as there was no element of intent involved, the range was three to four years, particularly given the sentence would be imposed cumulatively.  Defence Counsel also argued that there was insufficient evidence to justify an argument that he should have his parole eligibility date delayed and that there was no basis for arguing that this was the type of unusual circumstance which justified a serious violent offence declaration.

The sentence imposed

[16] In imposing the sentence that he did, the learned sentencing judge referred to the relevant facts of the case and noted that the applicant was affected by alcohol.  He noted, however, that the applicant said to the complainant “I’m going to stab you” and also indicated that there must have been quite a deal of force used because the wound was deep enough to penetrate the complainant’s lungs and lacerate the right lung.

[17] The sentencing judge was also clearly concerned that the applicant’s criminal history was some nine pages long and consisted of a variety of offences some of which were clearly relatively minor but included sexual offences and property offences as well as three previous violent offences.  In 1998, the applicant pleaded guilty to common assault and assault occasioning bodily harm and was sentenced to a period of imprisonment.  In 2000, he pleaded guilty and was sentenced in relation to assault occasioning bodily harm whilst in company and served a short period of imprisonment.  In 2002, he pleaded guilty in the Magistrates Court to assaults occasioning bodily harm and was fined.  The sentencing judge noted that the last violent offence occurred nine years previously.

[18] His Honour duly noted that because the applicant was on parole at the time he committed the current offence, the sentence he was imposing had to be cumulative upon the completion of the current full time release date, which was 25 April 2013.  His Honour also took into account the fact that the applicant had denied the intentional stabbing of the complainant to Dr Freeman and accordingly, had not shown any real remorse.  His Honour then examined the applicant’s family circumstances and then turned to the consideration of the cases referred to by the Crown Prosecutor.

[19] His Honour indicated that he did not consider that the applicant’s case was as serious as Bryan but indicated that none the less this was a serious offence which involved stabbing without any provocation and that it was a single stab to a region of the body that could have caused death.  He also noted that the applicant had fled the scene and had a serious criminal history but acknowledged that the plea of guilty was at the earliest opportunity once the charge was amended.

[20] The learned sentencing judge considered that a sentence of six years as was imposed in Bryan would have been excessive but he did not accept the submissions of Defence Counsel that a head sentence of three or four years was appropriate.  His Honour indicated that the submission from the Crown Prosecutor was that a sentence of six to seven years was appropriate which could be reduced to five years to take into account all of the relevant factors.  The Crown Prosecutor also submitted that there should be a serious violent offence declaration.

[21] His Honour indicated that the appropriate penalty for the offence was five years.  It was to be cumulative and he fixed the parole eligibility after 16 months.  His Honour declined to make a serious violent offence declaration.

The comparable authorities

[22] As previously indicated, the Crown Prosecutor relied, in particular, on the decision in Bryan[7] to argue that a head sentence in the range of six to seven years was the appropriate sentence for an offence of doing grievous bodily harm before taking into account the moderating effect of a cumulative sentence.

[23] In Bryan, which was an Attorney’s appeal against a sentence of four years imprisonment, suspended after 12 months for five years, it was argued that such a sentence for grievous bodily harm was manifestly inadequate.  On appeal, the sentence was increased to six years.  Notably, members of the Court indicated that, had a serious violent offence declaration been sought, they would have imposed one.  The facts in that case involved an altercation in the Queen Street Mall where the respondent had engaged in a physical altercation with an unknown complainant who was walking near the Mall with his girlfriend.  When the complainant was getting the better of the respondent during the altercation, the respondent produced a knife and stabbed him in the chest.  The complainant sustained three wounds, one of which was so extensive that the complainant’s heart and lung could be seen through the wound.  In that case, the respondent had fled the scene and was apprehended later.

[24] The respondent in Bryan was 21 years of age and had no convictions for offences of violence.  He had been intoxicated at the time and had subsequently expressed some shame and remorse.  Williams JA noted it was a vicious attack with a weapon upon a stranger and was gratuitous street violence in an area where people customarily went to congregate.  He considered that it was “one of the worst examples of the offence of doing grievous bodily harm that one could find”.[8]  His Honour also noted that on a schedule placed before the sentencing judge there were quite a number of sentences for grievous bodily harm in the range of five years to nine and a half years.

[25] Williams JA also referred to the decision of R v King & Morgan; ex parte Attorney-General (Qld)[9] where the Chief Justice, with other members of the Court agreeing, indicated: “I agree with counsel for the appellant that, in the context of the maximum, the range for this offending would extend substantially beyond six years, with a declaration.”[10] Williams JA concluded, “… given the use of a knife in such a way as to seriously threaten life a sentence in the range six to seven years was the minimum that could be considered as the head sentence.”[11]  Given that it was an Attorney General’s appeal, a sentence of six years was imposed.

[26] Having considered the relevant authorities, there is no basis, in my view, for a sentence of three or four years as contended by the Defence Counsel even with moderation given the circumstances which required a cumulative sentence.

[27] This was a case where the applicant had, without warning, aggressively stabbed the complainant in his own home.  Clearly, considerable force was required to inflict a wound which actually penetrated the right lung even though there was only one blow.  It was a life threatening injury which required several days hospitalisation.

[28] It is correct that this was not a case involving gratuitous public violence but as the Crown Prosecutor correctly submitted, the decision of Johnston[12] had endorsed a sentence of six years which had been imposed in relation to one count of causing grievous bodily harm with respect to a stabbing in a private home.  In that case, the complainant was visiting a friend at her home and shortly after his arrival, the applicant without any provocation or dispute, suddenly took out a large knife with a blade of about 15 centimetres, walked towards the complainant and stabbed him in the chest.  Nothing had been said between the two parties but it would appear that there was an element of planning and premeditation involved.

[29] I note that the sentence of six years in that case was imposed after trial and that the injuries were arguably worse as the complainant sustained a laceration to his diaphragm, a collapsed lung, a perforated stomach and a lacerated liver.  However, Mr Johnston was significantly younger as he was 24 at the time of the offence and 26 at the sentence.  He also had a de facto wife and three children as well as a good work history and he was working at the time of the offence.  Whilst he had previous convictions for unlawful use of a motor vehicle, obscene language, stealing and possession of a dangerous drug, he had no previous convictions for offences involving violence.

[30] The Court of Appeal in Johnston endorsed the sentence of six years and specifically referred to the decision of Bryan noting that it was one of the more recent decisions that:

“establish a benchmark in cases of this kind that may be higher or more severe than has been common in the past. True, the offence in Bryan took place in a public thoroughfare and not as here in a private home. Drink or drugs were a factor in the offender’s behaviour there. Nothing of that kind was suggested here. Indeed, no explanation of any kind was advanced for the attack in the present case, which was deliberate and apparently premeditated.”[13]

In my view, the decision in Johnston does indeed support a head sentence of six years for an unprovoked and unexplained attack in a private home.

[31] Further support for a sentence in this range is the 2011 Court of Appeal decision in Thomason where an unprovoked street stabbing attracted a sentence of six years with a serious violent offence declaration.  In Thomason, the Attorney-General appealed against a sentence imposed in the District Court for an offence of unlawfully doing grievous bodily harm.  In that case the respondent, who pleaded guilty, was sentenced to four and a half years imprisonment with parole eligibility set after 14 and a half months.  The facts of that case were that two soldiers and their two women companions were on leave and were walking in the Townsville central business district.  Another group was approaching the first group.  The 18 year old respondent offered a gesture of a “high 5” to the 21 year old complainant, but the complainant did not return the gesture and kept walking.  The respondent then abused the complainant who kept on walking.  The respondent then ran up to the complainant from behind, grabbed his shoulder, spun him around and stabbed him twice with a steak knife with a 15 centimetre blade.  The complainant then punched the respondent in the head four times and prised the knife from his hand.

[32] The complainant suffered a one centimetre slash wound to the apex of the left ventricle in his heart, producing bleeding which inhibited the contraction of the heart and he underwent surgery.  He also suffered a neck wound which required suturing.  The Chief Justice said:

“[6]It was a serious instance of the offence because of the combination of these features: the respondent was carrying a knife, and used it; he thereby occasioned injuries which threatened the complainant’s life; the attack upon the complainant, from behind, was entirely unprovoked; the respondent continued to harass the complainant after the stabbing, and left the scene at a time when he knew he had stabbed the complainant who would require urgent medical attention (the respondent did not surrender to the police, but was identified from CCTV footage and other enquiries); the incident occurred in a public place where citizens should be free to move about securely; and as the victim impact statement suggests, the complainant has been left in an emotionally scarred state albeit he is fortunately not subject to residual physical disabilities apart from the scarring to his chest.”

[33] In that case, the respondent had two previous convictions and similar submissions to those in the present case were made to the sentencing judge.  The Chief Justice continued:

“[12]Before her Honour, the Prosecutor submitted that the appropriate penalty was six to seven years imprisonment with a serious violent offence declaration, and relied on R v Bryan; ex parte Attorney-General [2003] QCA 18 ((2003) 137 A Crim R 489), and R v Wiggins [2003] QCA 367 and R v Johnstone [2004] QCA 12, pp 4-5 in which Bryan was later applied. Counsel for the respondent did not contend for a particular sentence, but emphasized his being “a very young man…not beyond the prospect of rehabilitation”, while acknowledging that it was “a very significant example of [gratuitous] street violence”. He referred to R v Price [2006] QCA 180, R v Nguyen [2006] QCA 542 and R v Dietz [2009] QCA 392. The learned Judge also had regard to R v Honeysett; ex parte Attorney-General [2010] QCA 212 and R v Amituanai (1995) 78 A Crim R 588 (as to the significance of the extent of residual disability).”

[34] Whilst I note that the applicant was not involved in street violence, it was significantly an attack in a private home without provocation.  Whilst it was not premeditated, it was deliberate.  I also note that both Bryan and Thomason involved offenders who were 21 and 18 respectively and who were said to have good prospects of rehabilitation.  In this case, the applicant was 34 at the time of sentence and had a nine page criminal history which included previous offences for violence although they were somewhat dated.  There was also an assessment that he was a high risk of reoffending and had not shown any remorse.  He had also fled after the incident without rendering any assistance which was a factor the Chief Justice had referred to as contributing to the seriousness of these types of offences.  There were also clearly strong factors of both public and personal deterrence involved.

[35] On the basis of the authorities outlined above, I do not consider that a five year head sentence was manifestly excessive particularly when that head sentence was further moderated given it was a cumulative sentence, by fixing a parole eligibility date at 16 months.  The learned sentencing judge did not make a serious violent offence declaration or indicate that the parole eligibility date should be deferred beyond the halfway point as submitted by the Crown Prosecutor.  In all of those circumstances, the sentence imposed was indeed consistent with previous sentences for these types of offences and was accordingly entirely within range.

[36] I would therefore refuse the application.