R v C

[1994] QCA 363

IN THE COURT OF APPEAL [1994] QCA 363

SUPREME COURT OF QUEENSLAND

C.A. No. 287 of 1994

Brisbane

Before	Fitzgerald P. McPherson J.A. Cullinane J.
[R. v. C]
BETWEEN

T H E Q U E E N

v.

C

(Applicant)

Fitzgerald P.
McPherson J.A.

Cullinane J.

Judgment delivered 19/09/94
Reasons for judgment by the Court

APPEAL AGAINST SENTENCE ALLOWED. SENTENCE BELOW SET ASIDE. IN LIEU ORDER THAT THE APPLICANT BE PLACED ON PROBATION FOR A PERIOD OF THREE YEARS COMMENCING ON THE DATE OF THIS ORDER ON THE TERMS AND CONDITIONS SPECIFIED IN S.132(1) OF THE JUVENILE JUSTICE ACT 1992.

CATCHWORDS:	CRIMINAL LAW - SENTENCE - GRIEVOUS BODILY HARM - Juvenile - Stab wound to heart - Complainant the applicant's twin brother - Whether 12 months detention under Juvenile Justice Act 1992 appropriate - Domestic dispute - Learning difficulties compounded rivalry with brother - Genuine remorse - Co-operated with police - Plea of guilty based on lowest degree of criminal negligence - Prior convictions but nil for violence - Positive Family Services report - Subsequent improved relations with brother.
Counsel:	B. Farr for the applicant L. Clare for the respondent
Solicitors:	Brendan P. Ryan & Associates for the applicant Director of Prosecutions for the respondent

Hearing Date: 13 September 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Nineteenth day of September 1994
This applicant for leave to appeal against sentence was 17

years old at the time of sentencing but only 16 when the offence

was committed on 18 September 1993. He therefore fell to be sentenced under the provisions of the Juvenile Justice Act 1992.

He pleaded guilty in the Ipswich District Court to a single count of doing grievous bodily harm and was sentenced to detention for 12 months.

The complainant was the applicant's twin brother. The circumstances of the offence were that at the time in question the complainant was living away from the family home, where the

applicant resided with his single parent mother and other members of the family. He came home one Saturday and went to the kitchen in order to get some food, for which he had obtained

the prior permission of his mother. The applicant was in the

kitchen using a knife to cut up capsicum when the complainant

arrived and went to the refrigerator to take the food.

An argument started between the two brothers borne apparently of the applicant's resentment at the complainant's repeatedly coming back home for food. One of the onlookers remembers seeing that each of the brothers had hold of the shirt of the other. The applicant began kicking the shins of the complainant, who retaliated by pushing him away and punching him in the chest. Others who came on the scene saw kicks, punches

and wrestling taking place. At one stage in the struggle the complainant shoved the applicant against the kitchen wall causing the wall to split. The ensuing sequence of events is unclear but the struggle ended when the applicant stabbed the complainant with a knife. The incision penetrated the base of the left ventricle. The complainant's life was saved after emergency surgery which was sought and provided when the seriousness of the injury was appreciated by those in the house.

The prognosis is of complete recovery although the complainant's physical activities will be restricted for some 12 months or so following the injury.

The applicant's plea of guilty was entered and accepted on the basis that the injury was not intentional but resulted from criminal negligence on his part. It is not easy to be sure precisely what happened at the critical moment. On one version

the applicant had picked up the knife in order to scare his

brother; on another he already had it in his hand and, when the

punching started, forgot it was there and accidentally stabbed

his brother in the course of trying to punch him. The learned

sentencing judge adopted the view that the applicant had inflicted the wound through forgetting he had the knife in his

hand.

The question below and on appeal was whether a sentence of

detention was called for in the circumstances. The judge held
it was.

It is clear that, although the wound was serious and

potentially fatal, the degree of criminal negligence was at the

lowest end of the scale. The relationship between the applicant

and the complainant involved a history of encounters in which they often engaged in physical struggles, although previously

never with serious consequences. The applicant was the second and smaller of the twins, having been plagued in infancy with various ailments. He had problems with his schooling, having attended three different special schools, and having only an elementary reading ability. In consequence he had difficulty in finding and keeping employment, and had to suffer taunts from

his abler, bigger and more capable twin. In the rivalry between

them the applicant tended to be the loser.

The applicant exhibited genuine remorse once he discovered what he had done. He telephoned his mother, who was at the home of a neighbour, to tell her what had happened and summon help. At first he locked himself in his room, but he co-operated when

police came to talk to him, and pleaded guilty at the committal

proceedings. He has two prior convictions for breaking and

entering, but has not previously been involved in any offence of violence. The pre-sentence report from the Family Services Officer suggests that the family relations have now settled down

again; that the brothers are getting on better than before; and that there has been an improvement in the applicant's response

to provocation from his brother. The applicant claims to have

changed his attitude towards the complainant and he believes there is little risk of anything similar happening in the

future.

The judge below was inclined to discount the value of his
report and perhaps gave too little weight to it. He also said

that "the use of knives in disputes must be sternly

discouraged", adding that "no civilised society can accept the

use of knives in disputes". While no one would disagree with that view, it is less obvious that a person who, as was

accepted, had forgotten he had a knife in his hand can fairly be
said to have "used" it in a dispute.

The applicant has been subjected to detention since the order was made on 17 June 1994. When all the circumstances including his age are taken into account, we consider that detention was not an appropriate option and ought not to have

been resorted to. On behalf of the Crown it was suggested that

an "immediate release order" should be made under s.176 of the Act. However, even if we were inclined to adopt that course,

the pre-sentence report obtained here does not precisely fit the

requirements of s.177(1)(a). In our opinion the preferable course is to order that the applicant be subject to probation for a period of three years commencing from the date of this

order. He complied diligently with previous supervision orders, and through his counsel before us has indicated his willingness in terms of s.133 to comply with the requirements of such an

order if made in this case.

The appeal will be allowed and the sentence below set aside. In lieu it is ordered that the applicant be placed on probation for a period of three years commencing on the date of

this order on the terms and conditions specified in s.132(1) of
the Juvenile Justice Act.