R v Darke

[1996] QCA 303

[1996] QCA 303

COURT OF APPEAL
THOMAS J
de JERSEY J

DOWSETT J

CA No 214 of 1996
THE QUEEN
v.

ROBERT JAMES DARKE

BRISBANE
..DATE 20/08/96
200896 D.1 T12/JJD1 M/T COA194/96
de JERSEY J: The applicant pleaded guilty in the District Court
to two offences, unlawful wounding and assault occasioning
bodily harm arising out of the same incident and was sentenced
to three years imprisonment and two years imprisonment
respectively to be served concurrently with a recommendation for
eligibility for parole after 15 months, reflecting the pleas of
guilty and some indication of remorse.
He applies for leave to appeal against those sentences. When he
committed the offences the applicant was 21 years old. He and
the complainant, one Keller, had known each other for some time.

They purchased a carton of beer and then, with others, went to drink the beer at a house at Southport. It was some time later that the applicant stabbed the complainant.

A few weeks later the police located the applicant at Nanango. He initially denied involvement with the stabbing but the police found a knife under a mattress at the house where he was staying, which led to his admitting that he had stabbed the complainant. The applicant told the police that after he had consumed about 12 stubbies of beer, he and Keller began to argue about money with Keller saying that the applicant owed him some $100 from some earlier time.

The complainant Keller, ran at the applicant with his head down, so that Keller's head struck the applicant in the stomach. The two began to fight and wrestle. The applicant was carrying the knife in its sheaf down the back of his trousers. He said that he felt the knife and the sheaf moving and thought that Keller was going for it, so he the applicant, drew the knife and stabbed Keller in the leg. That was the offence of unlawful 200896 D.1 T12/JJD1 M/T COA194/96

wounding which involved the applicant's inflicting a three centimetre laceration to the rear of the complainant's left thigh.

The applicant then with the knife still in his hand, punched Keller four or five times in the face and head. That was the offence of assault occasioning bodily harm. The applicant said that he saw a puddle of blood developing underneath Keller and after yelling to someone else at the party to attend to Keller, he the applicant, ran off. The learned sentencing Judge pointed out that the Courts must take a very serious attitude towards offences such as this wounding involving the use of a knife and additionally and importantly, referred to the applicant's conviction in November 1991 for grievous bodily harm.

These offences occurred in February 1994. The circumstances of the offence for which he was convicted in November 1991 were these, a fight broke out in the early hours of the morning at an hotel. The applicant punched the victim and while the victim was on the ground, the applicant kicked him once in the head.

As a result of that attack, the victim lost the hearing in his left ear. He was imprisoned for that offence for two years, with a recommendation for eligibility for parole after six months. It may therefore rightly be said that the earlier imprisonment was demonstrably ineffective to deter the commission of a similar offence of violence such as occurred in this instance. It was submitted by Mr Hamlyn-Harris for the applicant that the sentence of three years for the wounding was out of line with other cases said to be comparable. He referred 200896 D.1 T12/JJD1 M/T COA194/96

at first to Claverie, Court of Appeal number 283 of 1984, where a non custodial sentence, in fact a fine, was imposed for an unlawful wounding with a knife and the Attorney General's appeal was dismissed.

There were, however, very special features about Claverie which Mr Justice Matthews emphasised, stating that he regarded the case "as standing very much on its own facts". In particular, I mention the circumstance that the respondent, having wounded the victim, immediately attempted to obtain assistance for him and quite comprehensively, summoning the ambulance and when the ambulance did not arrive, helping the victim into a motor vehicle and taking him to hospital himself.

The second particular feature was that the complainant in that case was a reluctant witness and was said to bear the respondent no ill will. The second case to which Mr Hamlyn-Harris referred was Service, Court of Appeal number 280 of 1985, where two years imprisonment was substituted on an appeal by the Attorney General in the case of a respondent aged 20 who had been placed on probation for an offence of unlawful wounding which occurred in the course of a fight outside an hotel.

The point raised with relation to that by Mr Hamlyn-Harris, was the premeditated nature of the offence which it was suggested may not have been quite the case here, although I have for my part some difficulty in accepting that submission. The particular feature of Service to which I would draw attention, is that the previous history of the respondent there did not include any offences of violence, which throws into stark relief 200896 D.1 T12/JJD1 M/T COA194/96

the position of the current applicant with his conviction for having done grievous bodily harm, comparatively recently before these particular offences.

The case to which I would draw particular attention is one relied upon here for the Crown and that is Coonan, Court of Appeal number 83 of 1995, which involved the Courts upholding a sentence of three years imposed upon a 48 year old man who was convicted of unlawful wounding following a trial. Also, I mention the case of Savage, Court of Appeal number 369 of 1990, where the Court upheld a sentence of two and a half years imprisonment imposed following conviction by a jury.

That again was a case of wounding with a knife. In light of all of those cases and the facts of this one, I could not conclude that the applicant has shown the sentences imposed have been manifestly excessive. The particularly important features in the end are certainly the need to achieve deterrence with relation to the use of the knife in circumstances like this, first; and second, the fact that so recently before this particular incident, the man had been convicted of doing grievous bodily harm and imprisoned for that.

He obviously hadn't learned his lesson and those particular features I think, combined against the background of all of the other matters to which I have referred, amply to warrant the sentence which was imposed. I would refuse the application.

DOWSETT J: I agree.
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THOMAS J: I should add that it was urged on behalf of the
applicant that the circumstances of the complainant apparently
reaching for the knife made the complainant apprehensive of what
might happen to him. It was further urged on his behalf that
since these offences were committed (in early 1994) more than
two years have elapsed during which he has been well occupied,
has a good work history and has produced good references.

He is still only 23 years old and has pleaded guilty. These factors may point to some hopeful prospects of rehabilitation, but I think that the learned sentencing Judge's recommendation for parole after 15 months probably gives sufficient weight to those factors. It seems to me that the sentence that was imposed was a severe one, but I cannot say that it was manifestly excessive. The order of the Court will therefore be application refused.

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