R v Clark

[2008] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clark [2008] QCA 51

PARTIES:

R
v
CLARK, Sydney James
(applicant)

FILE NO/S:

CA No 238 of 2007
DC No 105 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

7 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2008

JUDGES:

McMurdo P, Muir JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   The application for leave to appeal against sentence is refused

2.   A warrant should issue for the apprehension of the applicant to lie in the Registry for seven days

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant convicted of unlawful wounding – where applicant sentenced to 18 months imprisonment suspended after four months – whether period of suspension such as to make sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(p)

R v Bell; ex parte A-G (Qld) [1994] QCA 220; CA No 116 of 1994, 20 June 1994, considered
R v Chong; ex parte A-G (Qld) [2008] QCA 22; CA No 250 of 2007, 22 February 2008, considered
R v Kidner [2005] QCA 430; CA No 265 of 2005, 23 November 2005, considered
R v Kimmins [2006] QCA 438; CA No 224 of 2006, 3 November 2006, considered
R v Roberts [2002] QCA 105; CA No 367 of 2001, 20 March 2002, considered

COUNSEL:

B W Farr SC for the applicant
M J Copley for the respondent

SOLICITORS:

Rostron Carlyle for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE  AJA:  This is an application for leave to appeal against a sentence of 18 months' imprisonment suspended after four months for unlawful wounding.  The applicant was convicted after a five day trial.  He appealed against conviction but that was abandoned.  It is conceded that the 18 months' head sentence is not manifestly excessive.  The application is concerned only with the period of suspension.

The applicant was admitted to bail pending appeal about three weeks after he went into custody.  It was contended that suspension after two months instead of four months was appropriate. 

The applicant was 55 at the time of the offence.  The complainant was 31.  The applicant conducted a business in one of several industrial sheds at Slacks Creek.  The complainant was employed as a furniture removalist for a business that operated from a nearby shed.  There had been friction over parking issues in the area although not necessarily between the complainant and the applicant personally.

Shortly before the offence was committed the complainant had parked his van and gone to get instructions about his tasks for the day.  When he came back he found a utility parked so close to it that he was unable to drive it away so that he might go about his work.  He found out that the utility was the applicant's and went to his premises.  He asked the applicant to move the utility.  When the applicant said words to the effect that he did not intend to do so because he was tired of trucks parking where the complainant had parked, the complainant said he was going to move his truck and if it hit the applicant's vehicle it would be the applicant's fault.  The complainant then left the premises.

Findings of fact were made by the trial Judge prior to sentencing the applicant.  In summary what happened was that as the complainant walked off the applicant hurried after him.  The complainant heard him say something and turned around.  Then the applicant punched him on the bridge of the nose.

The two men then grappled with one another.  During the course of this wrestling the applicant was held around the neck in a martial arts hold as a result of which the complainant was exercising substantial control over him.  The hold was released for a brief period during which the complainant punched the applicant twice in the head and then renewed the hold.

At some point in the struggle the complainant was stabbed in the back of the thigh although he did not notice immediately.  A workmate of the complainant then proceeded to pull him away from the complainant.  While that was occurring the applicant stabbed the complainant in the front of the thigh with a small knife.  The exact nature of the knife was never adequately identified.

The trial Judge also made a finding that the applicant had committed the initial assault unlawfully and had provoked any subsequent assault on him by the complainant.  Accordingly self-defence was not available to the applicant on the facts of the case.

The second wound penetrated the subcutaneous fat layer.  The other penetrated the underlying muscle to a depth of six centimetres.  The wounds were cleaned and sutured in hospital and the complainant was allowed to go home after six or seven hours.  However, he suffered depression for six to 12 months after the incident and also increased his cannabis use which he attributed to the incident.
The applicant's submission is that four months actual imprisonment was manifestly excessive.  He pointed to the circumstances that the applicant was 58 years of age at the time of the trial, 55 at the time of the offence, and had no previous convictions; that the injuries were inflicted in the heat of the moment with little or no evidence of premeditation; that the injuries were towards the lower end of the scale of seriousness; that he had a good work history; that his behaviour was very much out of character with little likelihood of re-offending; and that he did not pursue the complainant after the infliction of the injuries notwithstanding the complainant was vulnerable to attack at that time.  He had also returned from New Zealand on several occasions in connection with the proceedings.

It was submitted by Mr Farr on behalf of the applicant that the authorities relied on by him supported the conclusion that actual imprisonment of two months was at the upper end of the appropriate range.  Analysis of the authorities does not in my view substantiate this.  R  v Chong; ex parte A-G (Qld) [2008] QCA 22 was an unsuccessful Attorney-General's appeal against sentences under which the offender was ultimately released on immediate parole. She had been ordered to serve three months but when certain facts were brought to the sentencing Judge's attention she reopened the matter and gave an immediate parole order.

The applicant there had been on an intensive correction order for offences which included assault occasioning bodily harm in company which she breached by inflicting three minor stab wounds on her mother who, at the time, was fighting the offender's de facto husband. There was a favourable Community Justice Group report which was obliged to be taken into account under section 9(2)(p) of the Penalties and Sentences Act 1992 (Qld). Another factor which worked in her favour was that she was breast-feeding her seventh child and, according to the evidence before the sentencing Judge, she would, if imprisoned, have to be separated from it because children were not permitted on the aircraft in which she would have had to have been transported from Mornington Island to the custodial centre. She was also particularly diligent in ensuring that her other children attended school regularly in contrast to the endemic high truancy rate there.

R v Kidner [2005] QCA 430 was a case of alcohol fuelled violence on Palm Island resulting in a minor knife wound. By the time the application for leave was heard the offender had served all but three weeks of the sentence. It was held that a sentence of two years suspended after three months was not shown to be beyond the sound exercise of the sentencing discretion.

In R v Bell; ex parte A-G (Qld) [1994] QCA 220 there is a statement that cases to which the Court's attention had been directed in that instance showed that there were a number of instances where unlawful wounding involving a knife did not lead to imprisonment or lead to suspended sentences. The offender there had stabbed his de facto wife once in the thigh when she refused to go with him after a night of drinking. The wound was minor. He was sentenced to two years' probation and 120 hours community service. The sentencing Judge had been heavily influenced by the disadvantaged environment in which the offender lived and the complainant's wish that he not be sent to prison. While expressing disagreement with the sentencing Judge's degree of emphasis on the offender's disadvantage and the implications of that, the Court dismissed the appeal because it would have involved imprisoning him belatedly after he had resumed his relationship with the complainant and his employment.

In my view Bell should be regarded as depending very much on its particular facts.  It is also distinguishable from the present case in that the applicant in this matter was sentenced to a period of imprisonment and was released on bail pending appeal unlike Bell who was given a non-custodial sentence at first instance.

R v Roberts [2002] QCA 105 does not appear to particularly assist the applicant. The applicant there was subject to a community-service order for assault occasioning bodily harm committed on her de facto husband. She wounded him about three months after being sentenced for that, during an evening of alcohol fuelled domestic discord during which he had earlier made threats to her. The sentencing Judge had a positive report from the Community Justice Group. The sentence, which involved cumulative sentences totalling 18 months, supports the head sentence but does not have particular bearing upon the issue in this case.

The Crown relied on R v Kimmins [2006] QCA 438 as an example of a case where a sentence of 18 months to serve six months was imposed in a case of glassing during the course of the fight. Like the present case Kimmins was a matter that went to trial.  By contrast all of the authorities relied on by the applicant were cases where there was a plea of guilty entitling the offender to the benefit of such a plea and none of the cases are closely comparable factually with the present case in other respects.

It is not suggested that the trial Judge failed to take into account all relevant factors.  In fixing the date for suspension of the sentence he said that, because the matter had gone to trial, he would not have been inclined but for the applicant's antecedents and personal circumstances, to make any order for early release, which would have made it necessary for him to serve half the sentence. 

If the matter had not proceeded to trial, according to the trial Judge, he might have been persuaded to impose a fully suspended sentence.  He said that he was prepared to extend a reasonable degree of leniency but that could not involve total suspension of the sentence.  In the final analysis he gave the applicant quite a generous allowance for those factors.

The unfortunate reality is that the applicant seems to have become enraged with the complainant over a relatively trivial issue, chased after him and assaulted him.  When, as the incident progressed, the complainant began to get the better of him, he produced a knife and used it when the complainant had no reason to suspect that events would escalate in that way. 

In such a case there would, in my view, have to be exceptional circumstances to avoid serving time in actual custody.  I am also satisfied that the sentence imposed is not manifestly excessive.  I would refuse the application for leave to appeal against sentence.  A warrant should issue for the apprehension of the applicant to lie in the Registry for seven days.

THE PRESIDENT:  I agree with Justice Mackenzie's reasons for refusing the application for leave to appeal. 

The applicant's behaviour was grossly anti-social.  To stab someone twice in the leg in a dispute over parking is intolerable in a civilised society.  The Court must impose a condign penalty to express society's condemnation of and intolerance for such conduct.

The applicant showed no remorse or insight into his behaviour and did not cooperate with the administration of justice.  Even taking into account his good prior history, the sentence imposed, which required him to serve four months actual custody, was certainly not manifestly excessive.

MUIR JA:  I agree with the reason of Justice Mackenzie and with those of the President and with the order proposed.

THE PRESIDENT:  The orders are as proposed.  Seven days is sufficient?

MR FARR:  Yes, it is, thank you.