R v J

[1995] QCA 526

IN THE COURT OF APPEAL	[1995] QCA 526
SUPREME COURT OF QUEENSLAND

C.A. No. 398 of 1995

Brisbane

Before Macrossan C.J.

McPherson J.A.

Thomas J.

[R. v. J]

T H E Q U E E N

v.

J Applicant

Macrossan C.J. McPherson J.A. Thomas J.

Judgment delivered 28/11/95

Reasons for judgment by the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED. A

WARRANT SHOULD ISSUE FOR THE APPLICANT'S DETENTION.

CATCHWORDS	CRIMINAL LAW - GRIEVOUS BODILY HARM - Child offender - Whether the trial judge acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, or failed to take into account some material consideration: House v. The King (1936) 55 C.L.R. 499.
Counsel:	R. A. Mulholland Q.C. for the applicant D.L. Bullock for the respondent
Solicitors:	Gilshehan & Luton for the applicant Director of Public Prosecutions for the respondent
Hearing Date:	17 November 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 28th day of November 1995

This applicant for leave to appeal against sentence pleaded guilty in the Children's Court to a charge that on 23 August 1994 he did grievous bodily harm to the complainant. The sentence imposed was 12 months detention, to be released after serving six months. The applicant and complainant were students at a Brisbane suburban high school and at the time in question both of them were 13 years of age. The incident occurred at a high school dance which they were attending.

The circumstances giving rise to the offence are that a week or so before the incident, an argument developed between two groups of boys at the school over the matter of damage done to a Walkman owned by one of them. Neither the applicant nor the complainant were directly interested in the property affected, but they became involved in the dispute. Feelings were running high. Blows were exchanged in the school grounds and the applicant is said to have aimed a blow at a boy in the opposing camp.

At the dance the complainant was the aggressor. He sought out the applicant, pushed him, and punched him on the jaw with a closed fist. According to one version, he may have hit him twice. After the punch or punches, the applicant drew a knife and stabbed the complainant in the upper abdomen.

The knife penetrated the right lung and the right side of the heart. The complainant was taken to hospital and underwent emergency surgery. Without quick treatment he would not have survived. He was in hospital for 5 days and was later re-admitted with post-traumatic pericarditis. A period of recuperation followed, during which he was absent from school for 6 weeks and suffered considerable pain and discomfort. Medical opinion is that it is unlikely that the injury will affect the complainant's working ability or job prospects. He has, however, been left with a visibly disfiguring scar, running from neck to navel, which inevitably causes embarrassment. His school results have shown a noticeable decline and his participation in school hockey has been affected. He was a member of the Queensland Junior Hockey team, but has now lost confidence in his ability. His father says that the complainant has become temperamental, being more aggressive and feeling physically vulnerable. It has been recommended that he undertake psychiatric counselling. Not unexpectedly, the incident and its aftermath have been difficult for the complainant and his family.

There was some dispute about details of circumstances leading to the use of the knife; but the learned sentencing judge undertook a thorough examination of the evidence, and his findings in that regard have not been challenged on appeal. The knife in question had a blade which was about 7cms long, and is described as a "mini paratrooper's knife". It is evidently designed to be a concealable weapon. Counsel for the applicant at the hearing in the court below said that his instructions were that the applicant had found the knife a month or so earlier, and that the applicant took it to the dance with the dual purpose of selling it, and of having it with him as security against what might happen there. On another version of it, the applicant said he was handed the knife by someone else when he was attacked by the complainant, and that he had waved it around hoping to scare off his attacker. Yet another version was that at the dance he was handed the knife by someone with the request that he sell it; he gave it back to that person and did not see it again until it was handed to him at the time when he was set upon.

As his Honour pointed out, these accounts of how the applicant came to have the knife, and to use it, were to a large extent contradicted by evidence from several other boys. One of them said that the had seen the applicant with the knife at home as long as eight weeks before he used it; on that occasion the applicant told his companion that he might use the knife one day. Four other boys separately saw the applicant with the knife at the dance. He made different statements to each of them about what he intended to do with it. To one he said he intended to stab the other boys who were after him; to another that he intended to stick the knife into a boy whom he identified by name.

After reviewing all this evidence, the learned judge accepted what was said by the two boys to whom those statements were made and concluded that the stabbing was a deliberate act. He accepted that the complainant was the aggressor, and that he had provoked the applicant; but that, even if provocation in law had been a defence to a charge of doing grievous bodily harm, the provocation in this instance was not such as to justify retaliation of the kind resorted to. The force used was grossly disproportionate to the provocation, and to any measure of self-defence that was called for in the circumstances.

The case was one in which deterrence inevitably formed an important element in the sentencing process. As his Honour said, the main lesson is that no one should go to school, or to school functions, armed with a knife. Unless, in a case like this, that lesson is brought home to all, the safety and lives of all children attending school will be put at risk. The community plainly would not be prepared to tolerate such a state of affairs.

It was not disputed before us that the judge was entitled to give proper weight to the factor of deterrence. Submissions on behalf of the applicant nevertheless ranged over a wide area. At times the impression conveyed was that this Court was undertaking a fresh hearing on the matter of sentence. That, of course, is not the case. Applications of this kind continue to be governed by the principles laid down in House v. The King (1936) 55 C.L.R. 499, 505. According to those principles, which have been followed on many subsequent occasions, a sentence be reviewed "if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, [or] if he does not take into account some material consideration". A sentence may also be reviewed, if, upon the facts, the determination below is "unreasonable or plainly unjust", so that, even if the nature of the error may not be discoverable, it is apparent that a "substantial wrong" has in fact occurred. In those circumstances the appellate court may exercise its own discretion in the matter by substituting a different sentence if it has before it the materials for doing so.

Approached according to these principles, it is difficult to identify any error in the sentencing determination in this case. It was submitted that the judge had placed undue emphasis on the effects on the victim of the injury he sustained. However, in assessing the need for deterrence, those effects, and their potentially fatal consequences, were clearly of great relevance as reasons why the offence should not be treated lightly. Then it was said that his Honour had failed to give sufficient weight or attention to the implications of the sentence of detention he imposed on the applicant and that, in doing so, he had acted contrary to the philosophy or the spirit of the Juvenile Justice Act 1992. Plainly the interests of the child offender are a prominent consideration in all cases of this kind; but they are not the only, nor the overwhelming, factor to be weighed. If it had been intended that they should be, the Act would have said so. Instead, it contemplates the possibility of a period of detention in circumstances in which such a sentence is appropriate.

A related submission was made that the sentence in the present case took no account of the impact on the applicant's schooling and his future. The applicant is now attending another school, where he is doing well, and has been elected as class captain. It is certainly to be regretted that his progress there will be interrupted; but it is necessary to repeat that it is not the only consideration in the case. The same applies to the pre-sentence report by the Family Services Officer. He recommended a probation order with a condition that the applicant undergo a psychological assessment. The report is in almost every respect favourable to the applicant; but, of course, it naturally does not address the wider implications of the applicant's conduct, its effects on the complainant, or the concerns of the community at large. It is not suggested that the learned judge failed to take it into account. However helpful the report was and is, his Honour was not bound to adopt the course recommended in it to the exclusion of all others.

Some point was made of his Honour's failure to insist upon a psychiatric assessment of the applicant. He had originally been minded to do so despite the lengthy delay which he was told would have been involved in obtaining it. In ordering such an assessment, he referred to it as a "precaution" in view of the nature of the offence. On the following day, his Honour evidently changed his mind about the utility of or necessity for that course. Perhaps he formed the opinion that it was preferable to reach a determination on the matter of sentence without such an assessment, rather than leaving the matter hanging over the applicant's head for a long time, with the potential for even greater disruption of the applicant's life in the future. Before revoking the earlier order for the assessment to be made, he offered the defence an opportunity of commenting on it. Counsel for the defence said he did not wish to do so.

Finally, it was submitted that the sentence imposed on the applicant was excessive in comparison to other cases of its kind. In the course of his observations, his Honour remarked that, for a comparable offence, an adult might expect to receive a term of imprisonment ranging from three to five years. The authorities relied on before us do not support the applicant's complaint about his Honour's statement to that effect. R. v. Amituanai (CA 524 of 1994) involved a blow to the head without the use of a knife. The distinction was specifically adverted to by Pincus J.A. (with whom Demack and Shepherdson JJ. agreed) in R. v. Bassett (CA 150 of 1995). R. v. C (CA 287 of 1994) was a case in which the offender was sentenced on the footing that he was guilty of criminal negligence "at the lowest end of the scale". It did not, as in this instance, involve a deliberate stabbing.

Both of the decisions relied on were distinguished in R. v. Bassett, which has already been mentioned. There a 16 years old child offender was sentenced to 12 months detention for the offence of doing grievous bodily harm and two years probation for a wounding. He had become drunk and troublesome at a private party. When an attempt was made to subdue him, he lashed out with a knife and stabbed one of his victims in the the left armpit, as well as inflicting a "relatively minor" cut on the other. The first of the two victims was left with what was described as "a significant disability which may prove permanent". Essentially he had no functional use of his left hand. In discussing an application for leave to appeal, Pincus J.A. remarked that it was a serious step to sentence a young person to a period of detention when he had committed no previous offences, and that it would not be justified "were it not for the fact that the applicant deliberately drew the knife and used it causing a serious and permanent injury to one of his victims". The incident was not one in which the offender took a knife to a school function.

In the present case the learned sentencing judge referred to the decision in Bassett, which was an appeal from one of his own decisions. There were some similarities as well as obvious differences. The offender in Bassett was three years older, and the injury (which was not provoked) resulted in what was expected to be a permanent disability. On the other hand, the applicant in the present case was fortunate that effective medical attention given to the complainant succeeded in avoiding a much more serious outcome. The injury he inflicted resulted from a deliberate blow. On the view formed by the sentencing judge, the possibility of using the knife in that way was something which the applicant had in mind when he took the knife to the school dance. The lethal potential of conduct of that kind cannot be judged as if its significance fell to be assessed solely by reference to the future interests of the applicant himself.

The application for leave to appeal against sentence should be dismissed. The applicant is on bail and a warrant should issue for his detention.