R v James - [2000] QCA 477

[2000] QCA 477

COURT OF APPEAL

WILLIAMS J
CULLINANE J
DOUGLAS J

CA No 201 of 2000

THE QUEEN

JIM CHRISTOPHER JAMES Applicant

BRISBANE

..DATE 21/11/2000

JUDGMENT

WILLIAMS J: This is an application for leave to appeal against sentences imposed in the District Court at Townsville on 24 July 2000. On that date the learned sentencing judge had to deal with a breach of a suspended sentence and also to impose sentence with respect to a plea of guilty to a charge of unlawful wounding.

The offence in each of the two matters was virtually the same and involved the same complainant. In consequence, it is appropriate to deal first with the facts giving rise to the first offence in point of time, namely doing grievous bodily harm.

The applicant is a resident of Palm Island and resides there in a de facto relationship with a woman by the name of Parker. The first offence occurred on 9 April 1998 and the applicant pleaded guilty to that charge on 18 March 1999. It appears that the complainant had been stabbed with a knife in the leg. The wound on that occasion was some six centimetres deep and death was imminent because of blood loss. That is why the offence charged was grievous bodily harm.

Apparently at the time the applicant had been drinking and there had been some sort of argument between he and his defacto. The learned sentencing judge on that occasion imposed a sentence of two years and it was ordered that it be suspended after a period of nine months. The operational period was fixed as a period of three years.

The applicant apparently served the nine months of that sentence and was then released from custody. The second offence, that of wounding, was committed on 23 April 2000, well within the operational period. On that occasion, he apparently returned to his residence in a drunken state at about 3 a.m..

There was an argument with the complainant. He kicked her with his bare foot then obtained a knife and stabbed her in the left leg. On this occasion the wound was six centimetres long and one and a half centimetres deep. It required five stitches. That of course, or the plea of guilty to that second offence of course constituted the breach of the suspended sentence.

The learned sentencing judge concluded that he was satisfied that it would not be unjust to order the applicant to serve the whole of the suspended sentence. Indeed, that was not seriously opposed by the applicant's counsel. So, with respect to the breach of suspended sentence, the applicant was ordered to serve fifteen months imprisonment. There is no appeal from that.

The learned sentencing judge then turned to the second offence. He referred to the fact that the circumstances of the two offences were almost identical, that a knife was used, that the complainant was the same and on each occasion there had been a stabbing in the leg.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v James

Details

AGLC: R v James [2000] QCA 477
Case: [2000] QCA 477
Decision Date: 21/11/2000

CaseChat Overview and Summary

In this case, the applicant, Jim Christopher James, applied for leave to appeal against the sentences imposed by the District Court at Townsville. The sentences were handed down on 24 July 2000 and related to a breach of a suspended sentence and a plea of guilty to a charge of unlawful wounding. The applicant resided on Palm Island and was in a de facto relationship with Parker. The first offence, involving grievous bodily harm, occurred on 9 April 1998, and the applicant pleaded guilty on 18 March 1999. The applicant stabbed Parker with a knife in her leg, causing a six-centimetre deep wound that resulted in imminent blood loss. The District Court imposed a sentence of two years, which was suspended after a period of nine months, with an operational period of three years. The second offence, involving unlawful wounding, took place on 23 April 2000, and the applicant kicked Parker and then stabbed her in the left leg with a knife, causing a six-centimetre long and one and a half centimetres deep wound. This offence constituted a breach of the suspended sentence, and the District Court imposed a sentence of fifteen months imprisonment for the breach and three years imprisonment for the unlawful wounding offence, which was to be served cumulatively.

The applicant challenged the sentences on the grounds that the District Court failed to give an appropriate discount for the plea of guilty and that the sentence of three years cumulative on the fifteen months for the suspended sentence was manifestly excessive. The applicant argued that the sentence should be reduced to two years imprisonment for the unlawful wounding offence, which would result in a cumulative sentence of two years and a half on the fifteen months for the suspended sentence. The Court of Appeal found that the District Court did not adequately consider the plea of guilty in imposing the three-year sentence for the unlawful wounding offence and that the cumulative sentences were excessive under the totality principle. The Court of Appeal granted leave to appeal, allowed the appeal, and substituted the three-year sentence for the unlawful wounding offence with a two-year sentence, which was to be served cumulatively on the fifteen months for the suspended sentence.

The Court of Appeal's decision was based on the principles of sentencing, particularly the need to give appropriate weight to the plea of guilty and to avoid excessive sentences under the totality principle. The Court found that the District Court did not adequately consider the plea of guilty in imposing the three-year sentence for the unlawful wounding offence, and that the cumulative sentences were excessive under the totality principle. The Court substituted the three-year sentence for the unlawful wounding offence with a two-year sentence, which was to be served cumulatively on the fifteen months for the suspended sentence. This decision resulted in the applicant becoming eligible to apply for parole after serving 19 and a half months in total, instead of 25 and a half months. The Court of Appeal's decision also noted that the applicant may not be released on parole immediately upon becoming eligible to apply for it.

Orders