R v J

[1997] QCA 428

[1997] QCA 428

COURT OF APPEAL

DAVIES JA
de JERSEY J
MUIR J

CA No 304 of 1997

THE QUEEN

v.

J  Applicant

BRISBANE

DATE 28/10/97

JUDGMENT

de JERSEY J:  The applicant pleaded guilty to a series of offences, grievous bodily harm, unlawful wounding, burglary, entering a dwelling-house with intent to commit an indictable offence at night time, a serious assault, assault occasioning bodily harm and two counts of going armed in public so as to cause fear.

He was 16 years old at the time of the offences and was sentenced to two years detention on the charges of grievous bodily harm and burglary, three years probation on the charge of entering a dwelling-house with intent in the night time, and for the remaining charges, 18 months probation.  He had some comparatively minor prior criminal history.

The circumstances of the offences were serious.  On 25 October 1996 at night time he armed himself with a fishing spear.  There had been a disturbance in a particular area of Mornington Island between a number of groups and the police had come to the scene.

The applicant approached the police holding a spear in a threatening manner.  He abused and threatened police officers using obscene language.  He was said to have been heavily intoxicated.

The other group of offences occurred on 14 February 1997.  He went to the house of one T and asked for alcohol.  She refused.  He went back to his own house and obtained a carving knife.  While he was there he stabbed his grandfather in the stomach with the knife.  When the grandfather had told him to settle down he then went back to T's house, argued with her and threatened her.  She ran into the house and locked the door.  The applicant smashed a window and climbed inside.  She locked herself in a room.  He tried to kick down the door, threatening that he was going to kill her.

A person called O was sleeping at the time on a mattress on the verandah.  As the applicant left the house he stabbed O several times with the knife to the neck, to the right flank, to the stomach, and to an arm.  One of O's lungs was punctured.  He was left, obviously enough, in a serious condition leading, eventually, to his having to be airlifted to Mt Isa for medical treatment.  Had he not received medical attention he would have died.  He still experiences difficulty breathing and pain and discomfort.

After stabbing O the applicant went out to the street where a number of people had gathered.  He threatened at least one of the persons on the street and was still carrying the knife, hence the charges of going armed in public.  He then returned to his own house.  His grandfather, W, was sitting in the front room.  He punched his grandfather in the head knocking him to the ground where upon W walked to the hospital where he received treatment.

The sentencing Judge referred to the circumstances that in respect to the first incidents the applicant was heavily intoxicated, and pointed out, with relation to the second series of incidents, that the applicant could have killed the victims of his attacks, none of them having given him any provocation.

The Judge acknowledged that the conditions on Mornington Island were bad and that the dysfunctional behaviour on the island was related to heavy consumption of liquor and he described the applicant as a product of those sorts of problems.  He recognised the need for rehabilitative programs and that the applicant had pleaded guilty and had been co-operative, but on the other hand as he pointed out, the applicant lacked remorse and posed a considerable threat to other members of the community.

The applicant particularly relies on the circumstances that he pleaded guilty, that while on bail he received counselling and rehabilitative treatment, that these were essentially his first criminal offences, at least of any significance, that he has already, by the time of sentencing, spent some 45 days in custody and, of course, his youthfulness.

In her written submissions counsel for the applicant, who did not address oral submissions to the Court, referred to a statement by Mr Justice Murphy in Griffiths v. The Queen (1976) 137 Commonwealth Law Reports 293 at 330 in these terms: "Emphasis on an adherence more or less to a scale of penalties of various offences (the tariff system) exerts pressure on the primary Judges to impose more severe sentences than they would sometimes wish and in practice inhibits desirable experimentation and expiration of alternative causes contemplated by the legislation."

There is, however, nothing in this case to suggest that the primary Judge was overborne by the notion of adherence to any suggested applicable tariff, indeed, there is none with relation to this particular course of criminal activity.

Counsel for the applicant suggested that a more appropriate response on the part of the Court would have been two to three years detention, coupled, however, with an immediate release order.

In my opinion, however, that would have been an inadequate response to conduct as serious as this.  If that suggests a range then the applicant was dealt with within it.

What the Judge has done here is to couple the detention order with a lengthy period of probation and thereby ensured, as best he could, that the rehabilitative needs of the applicant were met.  I referred at the outset of this judgment to his having been given the benefit of a three year probation order.

No ground has, in my view, been demonstrated for interfering with the sentence imposed and I would refuse the application.

DAVIES JA:  I agree.

MUIR J:  I agree.

DAVIES JA:  The application is refused.