R v Jackson

[1998] QCA 265

COURT OF APPEAL

[1998] QCA 265

de JERSEY CJ DERRINGTON J

CA No 145 of 1998
THE QUEEN
v.

LAWRENCE JOHN JACKSON	(Applicant)
BRISBANE ..DATE 16/07/98
JUDGMENT
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THE CHIEF JUSTICE: The applicant, who is a 29 year old man, pleaded guilty to the charges contained in two indictments. On the first indictment he pleaded guilty to burglary for which he was sentenced to seven years' imprisonment; unlawful wounding, three years; assault occasioning bodily harm and deprivation of liberty, 12 months; and aggravated indecent assault, five years.

On the second indictment he pleaded guilty to housebreaking and was sentenced to 18 months' imprisonment and three months for stealing. For the purposes of this application, one need consider only the first set of charges.

The applicant lived with the female complainant for about seven years and they had children together. It was a troubled relationship. The applicant came to believe that the complainant was being unfaithful to him. After consuming a lot of alcohol he tracked her down to a motel room where she was present with the other male complainant.

The applicant was carrying a knife. He burst open the door. There was a scuffle. He inflicted a five centimetre long wound of some depth on the male complainant. The male complainant, I note, has apparently recovered well. The applicant also assaulted the female complainant and took her in his car against her will back to the place where they had been living together. The applicant continued to assault her and forced her to commit an act of oral sex upon him.

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The learned sentencing Judge focused on the burglary, the wounding and the indecent assault as the most serious of the crimes committed. He accepted that the applicant was remorseful but identified no other ground for mitigation beyond the pleas of guilty. His sentencing remarks indicate that he reduced a prima facie applicable sentence of nine years for the burglary, seven years for the indecent assault and five years for the wounding by two years in each case because of the pleas of guilty.

Accordingly, the applicant was sentenced to seven years for the burglary, five years for the aggravated indecent assault and three years for the wounding, all sentences to be served concurrently.

It remains to observe that the applicant had a substantial prior criminal history including drug and dishonesty offences, breaking, entering and stealing, for example, and unlawful use of a motor vehicle and had previously been imprisoned.

For the applicant, counsel made the points that the male complainant could not be located when it came to the assembling of the Crown evidence and he referred to a suggestion that the female complainant had told the police that she wanted the charges withdrawn.

Reference was made also to the lack of consequence from the wounding and that the oral sex had been a feature of the applicant's relationship with the female complainant in somewhat happier times. The submission was that the sentences

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imposed for the burglary and the indecent assault were outside the permissible range and that the ultimate sentences failed sufficiently to reflect the pleas of guilty. Counsel submitted that the appropriate sentence for the burglary would be four years and the same for the indecent assault.

These features should be noted. The applicant's substantial past criminal history, the extremely serious nature of the conduct which had been planned to a certain extent, the use of the knife, the strong need for deterrence and the need to protect people in their houses and hotel accommodation, the need to deter violence following the breakdown of domestic relationships while, of course, one takes into account in mitigation the pleas of guilty, but deterrence and the need to mark public disapproval of this sort of conduct are very important factors in the sentencing process in cases of this character.

These were plainly very substantial sentences but not in my opinion outside the permissible range. The seven years for the burglary in particular falls within a range established for this general sort of conduct and in relevantly similar broad circumstances by cases including Melville CA 314 of 1987, Gibson CA 121 of 1989, Sandy CA 293 of 1991 and Green

CA 190 of 1996.

The five years for the aggravated indecent assault, consideration of which in these circumstances becomes rather academic may nevertheless be seen to sit consistently with the broad range suggested by cases including Blake CA 190 of 1993.

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I have to say, however, that the seven years for the burglary after allowing for the pleas of guilty should be seen as at the top of the range as indeed Mr Chowdhury who appeared today for the Crown conceded.

But having regard to the gravity of the conduct in question in this case and the very high need for general deterrence I would not interfere with the sentences. In my opinion, manifest excessiveness has not be demonstrated and this Court

would not be justified in interfering. I would therefore

refuse the application.

DERRINGTON J: I agree. I would reinforce the remarks of the learned Chief Justice by pointing out the gravity of the violence in this matter, the great fear which the victim must have suffered, and the totally gross and degrading conduct which he exhibited towards her in an attempt to reduce her self-respect to the utmost degree on his way towards, what must have appeared to her, his intended murder of her.

Violence of that description is a profound cancer in our society and if people are going to engage in violence of that order including violence to those whom they purport to love, then they will have to expect quite condign consequences from the Courts. I have no difficulty whatever in agreeing with the Chief Justice although I also agree with him that the sentence imposed was at the top of the range. It is not, however, within the reviewable area and I agree that the application should be dismissed.

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THE CHIEF JUSTICE: The application is therefore refused.

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