R v C

[1995] QCA 424

[1995] QCA 424

COURT OF APPEAL

McPHERSON JA
THOMAS J
FRYBERG J

CA No 237 of 1995

THE QUEEN

V

C  Applicant

BRISBANE

DATE 24/08/95

JUDGMENT

THOMAS J:  The applicant was convicted by a jury in the District Court at Gympie of wounding with intent to do grievous bodily harm.  For that, he was sentenced to four and a half years imprisonment.  He now applies for leave to appeal against that sentence.  He was 49 years old at the time and the victim was a 13 year old girl, the daughter of a woman with whom he had an association.

The applicant has convictions some time ago for dishonesty and for aggravated assault of a sexual nature.  In 1988, he was convicted of three counts of incest and sentenced to two years imprisonment with a seven month non-parole period.

The circumstances are that the complainant was 13 years old and her mother lived in a de facto relationship with the applicant.  They had been separated for two years, but maintained some contact.  The applicant, apparently, became concerned at developments at the time when the girl made contact with her real father and stopped calling the applicant "Dad".

On the occasion in question, the applicant was agitated and there is a fairly long recitation of argument and aggression between him and the girl on this occasion.  He threatened suicide, it seems, in a theatrical way.  The applicant poked the complainant in the stomach with a knife.  He disappeared for a time, later told her that he had a surprise for her and induced her to follow him outside into a relatively darkened area.  He threatened her with the statement, "You're never going to see your mum again."  The complainant called for her mother.  The applicant covered her mouth.  The mother arrived and the child complained.  The applicant said that they had sorted it out.  There was a scuffle involving the mother and the applicant as she tried to get her children in the car.

The complainant then indicated that she had felt something on her neck.  When the mother tried to look at the neck in the dark area, the applicant came behind her and slashed the girl's throat, saying, "What, this mark?"  It is unnecessary to recount further events.

There is, I think, more than a hint of possessiveness or jealousy in relation to an adolescent girl who was starting to grow away from him, which is particularly disturbing in a man with his criminal history.

It seems to me that following the wounding no remorse has been demonstrated.  The applicant who appeared in person submitted that he is remorseful but his submissions, self-justifications and attempts here to calumniate the character of the victim do not support that particular submission.

He stated that he never intended violence but the jury has rejected this.  He submitted that the wound was not serious but the medical evidence defies the suggestion.  The wound was right across the throat, some 15 centimetres long and two centimetres deep.  It went within one to two centimetres of the carotid artery and the jugular vein and divided the sternocleidomastoid muscle.  At the Gympie Hospital, the muscle was realigned and sutured.  The overlying tissue was sutured, along with the skin, and a drain was inserted.

The complainant was described as being terrified of the applicant and as having suffered nightmares.  The applicant indicated that he would plead guilty to assaults which occurred at about the same time but denied any intent to cause the harm alleged.  Accordingly, the matter went to a trial and, as I have indicated, the jury found against him.

The only other submission which may be noted is his complaint that he has heart disease and spinal disorder but these matters are not of significance in the question whether the present sentence was manifestly excessive.  We have then referred to Ivey (No 284 of 1981, Court of Criminal Appeal, 2 March 1982) and to Lingwoodock v. Attorney-General, (CA 396 of 1987, 22 March 1988).  It seems that the present sentence falls within the range that would be appropriate for a sentence for an offence of this degree of seriousness.

The maximum sentence able to be imposed on the charge of wounding with intent to cause grievous bodily harm is life imprisonment.

In my view, there is no merit in the prospect of appeal and I would refuse leave to bring it.

McPHERSON JA:  I agree.  I have looked carefully at the photograph, Exhibit 2, and of the medical evidence concerning the extent of the wound.  The photograph makes clear that it is a long wound and that it was extensively sutured.  It was, according to Dr Fowler, a wound that was one to two centimetres in depth, all the way round, or very nearly so.  It ran alongside the internal jugular vein.  It came within one to two centimetres of the trachea.  Without treatment, he said it was likely to have become infected and would have led to very serious complications that would have been life threatening.  He also said that there will certainly be a scar.

The evidence to which I have referred makes clear the seriousness of the offence and justifies the sentence that was imposed.

I agree that the application for leave to appeal against sentence should be refused.

FRYBERG J:  I agree with the views which have been expressed by my colleagues.

The applicant before us submitted that a recommendation should be made in relation to a non-parole period.  The sentencing Judge considered his rehabilitation to the extent necessary or possible and it has not been shown that his discretion in any way miscarried.

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