R v Edmund

[1994] QCA 496

[1994] QCA 496

COURT OF APPEAL
FITZGERALD P
DAVIES JA

LEE J

CA No 315 of 1994
THE QUEEN
v.

SHARLENE DEANNE EDMUND Applicant

BRISBANE
..DATE 24/10/94
DAVIES JA: The applicant was convicted in the Magistrates
Court on 7 July this year and sentenced on the same day of the
offence of assault causing bodily harm; that offence having
been committed on 8 June this year whilst the applicant was a
prisoner in the Brisbane Women's Correctional Centre, the
assault having been committed on a female prison officer.
The applicant is only 20 years of age having been born on
21 February 1974. The sentence which was imposed on her was
one of nine months' imprisonment cumulative upon a sentence
which she was serving, and an order was made pursuant to
section 157(3) of the Penalties and Sentences Act that she be
considered to be eligible for parole after serving six months
from the date of sentence. As I have mentioned, the sentence
imposed was cumulative. That order made the applicant
eligible for consideration for parole at the mid point of the
cumulative sentence.

Although the applicant was only 20 years of age, she already had a fairly substantial previous criminal history, which included a number of previous offences of assault. She had been convicted of assault occasioning bodily harm while armed with a dangerous weapon in March 1991, and again in October of that year she had been convicted of assault occasioning bodily harm whilst armed with a dangerous instrument. She also had convictions for offences of dishonesty and in fact it was for offences of dishonesty that she was serving the sentence which she was serving at the time of commission of this offence. There were two versions of the offence given to the sentencing Magistrate, and in the absence of any evidence given on this question, the Magistrate was obliged to accept and appears to have accepted the version given by the applicant. That version is as follows: that on the day of the offence, the complainant confronted the applicant in her office about five mascaras missing from the prison hair dressing salon. The applicant admitted taking one and agreed to pay for it, but knew nothing about, or said she knew nothing about the other four. The complainant insisted upon payment for them and the applicant refused. The complainant then threatened to charge the applicant with the offence, which would have required her to be in the detention unit for seven days. The applicant then picked up a plastic tape dispenser and according to her, the complainant said "Go on, you little darkie." The applicant thus provoked, in a general though not necessarily legal sense, threw the dispenser hitting the complainant on the shoulder, and left the office. The complainant followed her outside and slapped her and a fight ensued between them, during the course of which both the applicant and the complainant received some injuries.

The applicant, I should also mention, was immediately punished by being held for seven days in solitary confinement in a detention unit at the prison, with no privileges, no contact with other inmates, no fresh air, exercise, television or books. The applicant pleaded guilty at the earliest opportunity, and should, of course, be given credit for that.

Nevertheless, even accepting the applicant's version of some

provocation for the offence, the provocation was not put
forward at any stage by way of defence, but really only in
respect of penalty. The offence, nevertheless, was of a very
serious kind, being committed upon a prison officer with the
consequent threat to the discipline of the prison, which such
an offence involves.

Also, of importance, in my view, so far as the sentence which was appropriate in this case, is the history of violence in her previous criminal history. There are, nevertheless, some things which must be said in her favour, in addition to her early plea of guilty, in fact on the same day on which she was charged. She is, as I said, only 20 years of age. She was raised by her extended family after her parents separated when she was very young, and she has had a transient lifestyle.

She has had some employment at Palm Island, and since she has been in custody, she has completed an alternative to violence course. She has completed two computer courses, and she has done some courses in art, english and mathematics, and she has some ambition now to pursue some further studies in computer or word processing when she is released from prison. She is therefore at least, in my view, not completely beyond some prospect of being rehabilitated when she finally emerges from prison.

It was accepted, even on her behalf, that an offence such as this, involving as it does, as I have mentioned, a serious threat to the discipline of prison, necessitated a term of imprisonment and a cumulative term. But it was submitted, nevertheless, by Mr Hamlyn-Harris for the applicant, that the term which was imposed was manifestly excessive. That, in effect, has been conceded by Mr Meredith on behalf of the Crown, and the comparable sentences which have been put before us on both sides indicate, in my view, that that is so; that is, that although the applicant should have been, as she was, sentenced to a cumulative term of imprisonment, the actual term which was imposed was manifestly excessive.

I would, having regard to those comparable sentences, substitute for the term of imprisonment which was imposed a term of imprisonment of six months cumulative upon the terms of imprisonment which the applicant is now serving. I would also order that the applicant be eligible for parole immediately.

Consequently, the orders which I would make would be to grant the application, allow the appeal, set aside the sentence imposed below, substitute a sentence of six months' imprisonment cumulative on the sentence of imprisonment presently being served, and recommend that the applicant be eligible for parole immediately.

THE PRESIDENT: I agree.

LEE J: I agree.
THE PRESIDENT: The orders of the Court will be as indicated
by Mr Justice Davies.

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