R v Lea & Attorney-General of Queensland

[1998] QCA 263

COURT OF APPEAL

[1998] QCA 263

THOMAS JA
MACKENZIE J
HELMAN J

CA No 179 of 1998

THE QUEEN

v.

MARGARET MARY LEA  Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND  Appellant

BRISBANE

..DATE 06/08/98

JUDGMENT

HELMAN J:  At a trial which began in the District Court at Gladstone on 30 April this year the respondent was found guilty of unlawfully wounding another woman last year in Gladstone.  On 6 May the learned Judge sentenced the respondent to imprisonment for nine months.  The Attorney-General has appealed on the ground that the sentence was manifestly inadequate, asserting that it failed to reflect adequately "the gravity of the offence generally and in this case in particular", that it failed to take sufficiently into account "the aspect of general deterrence", and that his Honour gave too much weight to "factors going to mitigation".

The evidence was that about 6.30 to 7.00 p.m. on 9 July 1997 the complainant was walking down Goondoon Street in Gladstone from a motel at which she was staying to a take-away shop when she met the respondent and a man called Fuller who were arguing.  The two made offensive remarks to and about her.  Soon afterwards, on the way back to the motel, the respondent approached the complainant accusing her of destroying the relationship between the respondent and Fuller. The respondent then stabbed the complainant with a sharp instrument. The complainant ran away and then went to the Gladstone District Hospital by taxi.

The complainant arrived at the hospital at 7.27 p.m. and was admitted.  When examined by the Medical Superintendent at about midnight she was found to have a deep laceration to the post-lateral aspect of the right upper arm approximately twelve centimetres long - a laceration that extended down into the muscle through the subcutaneous fat.  There was another, superficial, laceration approximately five centimetres long on the right lateral chest wall.  Both lacerations were sutured under a local anaesthetic, the deep one in three layers.  The complainant was discharged from the hospital on 11 July.

The complainant initially suffered some loss of sensation and strength in her arm, but the wound healed and she has been left only with an obvious scar.  The evidence placed before his Honour after the verdict showed that in addition to the physical effects of the injury the complainant also suffered mental effects:  feelings of insecurity, nightmares, and sleeplessness; and his Honour also mentioned "trouble communicating with others around her".

In arriving at what his Honour considered to be the appropriate sentence he treated the protection of the community and the deterrent aspect of punishment as of primary importance.  He therefore concluded that a sentence of imprisonment was called for.  His Honour noted, however, that there had been only the one slash and no further attempt was made to injure the complainant.  His Honour also took into account the personal circumstances of the respondent.  She has two young daughters, aged six years and four years.  Imprisonment of the respondent means hardship for both the children and their mother.

The respondent was born on 20 September 1963 and so was thirty-four years old when sentenced.  She had been convicted of offences in the past:  assault occasioning bodily harm in 1983; drug offences in 1983, 1986, 1990, and 1996; breaching

the Bail Act in 1996 and assaulting a police officer in 1996. In each case she had been punished by moderate fines.

In the written submission made to us on behalf of the Attorney-General it is asserted that a range of imprisonment for eighteen months to imprisonment for three years was appropriate to the case, and a number of previous decisions have been referred to in support of that proposition.  On behalf of the respondent, however, a range of "[n]on-custodial" to imprisonment for eighteen months is suggested. 

In my view the cases to which we have been referred indicate no more than that a vicious, unprovoked attack like this one should, in the absence of the most unusual and compelling mitigating circumstances, call for a sentence of imprisonment.

A non-custodial sentence could not be regarded as appropriate except in the most extraordinary case, which this one is not.

Although I accept that a sentence of imprisonment was called for in this case I reject the suggestion that nothing less than imprisonment for eighteen months was appropriate.  His Honour quite properly took into account the personal circumstances of the respondent and in particular the effect that imprisonment would have on her and her young children.  It would have been within the limits of a proper discretionary judgment to have imposed a heavier penalty on the respondent, but in my view his Honour arrived at a sentence within the proper range for the case.  He imposed on a mother of young children a sentence that could reasonably be regarded as severe.  She had offended in the past, but it appears from the
penalties imposed on her that her previous offences, though not trivial, were not at the serious end of the scale.

As I read the record there is no reason to conclude that his Honour failed to give proper consideration to the gravity of the offence or to the deterrent aspect of punishment, nor do I think he gave undue weight to the mitigating factors.  I am therefore not persuaded that there is any merit in this appeal.  It should be dismissed.

MACKENZIE J:  I agree with the remarks of Mr Justice Helman.
The circumstances in which offences of wounding occur and the severity of the consequences are widely variable.  It must be said, I think, that this offence was really quite a vicious and vindictive offence but was no doubt committed in a time of personal anguish by the respondent.

It is the case, I think, that if I had been satisfied that what the Crown Prosecutor submitted to be the range set by decisions of this Court was a range that could not be departed from the sentence would have been a low sentence and indeed I think it is at the bottom end of the range for an offence of this particular kind.  However, I am not persuaded that it is a case where the criteria for allowing an Attorney-General appeal have been satisfied and I therefore agree in what has been said.

THOMAS JA:  I agree with what has been said by Mr Justice Helman and Mr Justice Mackenzie.  A wide range must be possible in sentences for the offence of unlawful wounding.  Such an offence is effected by means of any violence that causes the true skin to be cut.  The circumstances that lead the parties into confrontation are infinitely various and so are the consequences to complainants.  Also there will be the usual range of variation in personal circumstances, background and criminal history.

I therefore find it difficult to accept the primary submission of Mr Winn for the Attorney-General that the range for offences of this kind is 18 months to three years.  In the present case I consider that a sentence of nine months imprisonment is no mere token sentence, especially when it takes a mother away from her children.  I therefore agree that the appeal should be dismissed.

That will be the order of the Court.

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