R v Lord
[2010] SASC 344
•17 December 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v LORD
[2010] SASC 344
Reasons for Decision of The Honourable Justice Kelly
17 December 2010
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - WOUNDING OR SHOOTING OFFENCES - WOUNDING
Prisoner pleaded guilty to aggravated causing serious harm contrary to s 23 of the Criminal Law Consolidation Act 1935 (SA) - dispute as to factual basis for sentence - where victim suffered multiple stab wounds - whether an argument between the prisoner and the victim arose over an amount of cannabis to be purchased - whether the prisoner went to the victim's unit armed with a baton - circumstances in which the prisoner produced a knife.
Held: Prisoner's account of the offending rejected - victim's account of the offending accepted - prisoner went to victim's unit with a baton and knife with the intention of taking cannabis without paying for it - prisoner produced the knife and stabbed the victim.
Criminal Law Consolidation Act 1935 (SA) s 23, referred to.
R v LORD
[2010] SASC 344CRIMINAL: Reasons for Decision
KELLY J: Brenden Heath Lord (the prisoner) pleaded guilty to one count of aggravated causing serious harm with intent to cause harm contrary to s 23 of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation alleged was the use of a knife in the commission of the offence. The victim of the offence is Mr Simon Harrison.
After committal for sentence there was a dispute as to the factual circumstances of the offence.
The factual dispute principally concerned three matters; first, the circumstances in which the altercation between Mr Harrison and the prisoner commenced, second, whether the prisoner wielded a baton and struck Mr Harrison with it during the initial stage of the altercation, and third, the circumstances in which the prisoner produced the knife and stabbed Mr Harrison.
The prisoner maintained that he went to Mr Harrison’s unit to purchase cannabis for himself and others. He handed over money. Mr Harrison went into another room in the unit and returned with cannabis. The prisoner alleged that Mr Harrison returned with only half of what had originally been shown to him, as a result of which they had a verbal argument. The prisoner maintained that he refused to take the cannabis and demanded his money back, that Mr Harrison refused to give it to him and they ended up having a tussle. In the course of that tussle Mr Harrison punched him in the face. The prisoner denied that he had taken a baton there with him. His explanation for the presence of a baton which he admitted owning was that he had given it to another friend of his, also a witness in these proceedings, named Christopher Stump. The prisoner said that Mr Stump must have given it to Mr Harrison, who had it leaning on the wall by the front door of his unit on the occasion when the prisoner went in to purchase cannabis.
Although the prisoner denied using the baton initially, he admitted in evidence that at some stage he picked the baton up when he saw it nearby and swung it over the top of his head. At that stage he was on the floor and Mr Harrison was kneeling over him. He did not know whether it made any contact with Mr Harrison but Mr Harrison grabbed it and threw it away. The next thing he knew he was struggling on the floor. He said that he was in fear of his life, because Mr Harrison was gripping him around the neck. As Mr Harrison knelt over him he pulled out a knife which he carried and stabbed Mr Harrison a number of times. When Mr Harrison fell over he got up, grabbed the cannabis and left the unit.
The prisoner denied concealing his clothes in a bin in the block of units near Mr Harrison’s unit and denied burying the knife in the garden even though he later told the police that he had thrown it in the garden.
He claimed that his friend Christopher Stump and Mr Stump’s girlfriend Sarah Lindholm assisted him by putting his clothes in the bin and he said that it was Mr Stump who went and buried the knife.
The prosecution called three witnesses; Mr Harrison, Mr Stump and Ms Lindholm. The only witness called for the defence was the prisoner.
I have no hesitation in accepting that Mr Harrison gave truthful evidence as to what occurred in the unit that evening. I do not have the same confidence about the witnesses Christopher Stump and Sarah Lindholm. Mr Stump resiled from certain aspects of his statement in that he now claims to have been so under the influence of drugs and alcohol at the time that he cannot remember some matters. Ms Lindholm was an honest enough witness but she too was affected by drugs and freely conceded that she was muddled up about aspects of her evidence. Nevertheless I am satisfied that she gave evidence truthfully about who disposed of the clothes and the knife. She showed Mr Lord where to put the clothes in a bin in the units.
I reject the account given by Mr Lord as to the genesis of the altercation with Mr Harrison that night. I find that he went to the unit alone and requested Mr Harrison to prepare two bags of cannabis. When the cannabis was produced the prisoner threatened Mr Harrison and the altercation began when Mr Harrison then attempted to get the prisoner to leave his unit. When Mr Harrison gained the upper hand in the struggle and disarmed the prisoner of the baton, Mr Lord then produced the knife and stabbed Mr Harrison.
The prisoner’s account of the manner in which the altercation developed is inherently improbable. Furthermore his asserted state of fear for his life at the time he stabbed Mr Harrison is inconsistent with his actions immediately thereafter. He did not leave the unit until he found the cannabis which he took with him. I find that he was intent on getting the marijuana and getting the marijuana without paying for it. That is what motivated him and that is why he produced the baton. When Mr Harrison appeared to be getting the upper hand in that altercation Mr Lord then produced the knife. The two injuries on Mr Harrison’s head depicted in photographs tendered by the prosecution are inconsistent with the prisoner’s account of what occurred. They are however consistent with Mr Harrison’s account of being struck on the head with a baton.
It follows that I reject the prisoner’s submissions that the circumstances in which he produced the knife and used it amount to some mitigation. Not only am I not satisfied on the balance of probabilities about the facts alleged by the prisoner, I am positively satisfied beyond reasonable doubt that the prisoner was determined to get hold of the marijuana and leave the unit without paying for it and remained determined throughout the altercation with Mr Harrison. I also find beyond reasonable doubt that the prisoner went to the unit armed with both the baton and the knife prepared to use them if necessary.
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