R v O'Keefe

[2000] QCA 170

[2000] QCA 170

COURT OF APPEAL

McPHERSON JA
DAVIES JA
MACKENZIE J

[R v O]

CA No 15 of 2000

THE QUEEN

v.

O  Applicant

BRISBANE

..DATE 09/05/2000

JUDGMENT

DAVIES JA:  The applicant is a child of 16 years of age.  He was only 15 when he committed the offence of grievous bodily harm, the subject of the present application and only
12 years of age when he committed the offences of breaking and entering with intent and arson which are also the subject of the present application. 

Those earlier offences are the subject of this application because when he was sentenced on 6 December last for the offence of grievous bodily harm he was also re-sentenced for the earlier offences for which he had earlier been given a non-custodial sentence.  He was sentenced to two years detention for the grievous bodily harm and six months detention on the other offences, the sentences to be served concurrently.

The applicant resides in Townsville, where the offences occurred, with his mother and two younger siblings.  His parents separated when he was seven and it appears that his conduct disturbance began a short time afterwards.  He has two older siblings living with his father in Melbourne, one of whom, his older brother, he was close to until he left and his leaving also appears to have disturbed him.

For one so young he has a substantial criminal history although no offences prior to the present offence involved violence.  In 1997 he was found guilty of unlawful use of a motor vehicle, receiving and breaking and entering and he was ordered to undergo probation for two years. 

On the same day, however, he was sentenced to three years probation and 80 hours community service for the offence of arson.   He was still subject to both of those probation orders when he committed the grievous bodily harm offence on 28 April 1999.

Then on 1 April 1998 he was convicted on two counts of stealing and one of possession of tainted property for which he was ordered to undergo three months detention but with an immediate release order.  Finally on 16 June 1999, after the commission of the grievous bodily harm offence, he received probation and community service for two offences of entering premises with intent to commit an indictable offence.  Both of these offences were also committed after the grievous bodily harm offence.

By far the most serious of the previous offences was the arson offence which involved burning down a school.  However, the learned sentencing Judge who sentenced him in respect of that offence accepted that the applicant did not set out to commit arson.  He held that there was no conscious decision to cause damage which in fact occurred.

The offence of grievous bodily harm consisted of the applicant stabbing a man twice in the back with a fishing knife which he had on him.  One wound punctured the victim's left lung.  The attack took place notwithstanding one of his brothers calling out "Don't" before the stabbing.

On those facts the offence looks a very serious one indeed.  However, though it was indeed serious, on the version given by the applicant it was not as serious as might at first sight appear.

As counsel for the applicant has pointed out in his written outline there were at least two different accounts of events leading up to the stabbing and at least those of the applicant and his victim, Mr Thomas, were in serious conflict.  It is unfortunate that the learned sentencing Judge did not attempt to resolve this conflict or say that he was deciding the matter on the version most favourable to the applicant.  In the circumstances, however, I think that this Court ought to accept the version most favourable to the applicant.

Earlier on the night in question Mr Thomas had come to the house in which the applicant, his mother and his siblings lived.  It was apparently not the first time he had done so.  The applicant thought that Mr Thomas was, in his words, "trying to get onto Mum".  At that time, or at least shortly after it, it appears that both Mr Thomas and the applicant's mother were intoxicated.  They agreed to go with some other men to Mr Thomas' house, apparently to engage in further drinking, and the applicant's mother decided to take the children.

Before they left, the applicant, who had already been abused on at least one occasion by Mr Thomas, armed himself with a knife which he described as being for protection.  And, on his version of the events, there was an offence of violence by Mr Thomas towards him as well as abuse whilst they were at the applicant's house.

The stabbing occurred much later in the night at about
1 a.m.  It seems that Mr Thomas wanted the applicant and his siblings to sleep there and his mother to stay there but they wanted to go home.  The applicant had an argument with Mr Thomas and told Mr Thomas that he could not order him to stay, that he was not his dad. 

Mr Thomas then punched the applicant two or three times, including at least once in the face, and threw him down the stairs.  He is not completely clear whether he threw the applicant down the stairs before he punched him or punched him before he threw him down the stairs.  

It appears that Mr Thomas also threw Carl, the applicant's younger brother, down the stairs as well.  It was at this point apparently that the applicant withdrew his knife and stabbed Mr Thomas twice in the back.  According to his mother's version the children in general, including the applicant, appeared to be in an hysterical state.  The applicant's mother finally took them all home.

One disturbing feature of the applicant's general conduct is that it appears that he told one of the experts that it was not the only time on which he carried a knife with him for protection.

The applicant is of low intellectual level although not defective.  His cognitive ability is low.  He has low social judgment skills and he requires some explanation and repetition of concepts before information is transferred to his long term memory.  He is also immature.  However he is not naturally aggressive.  He is apparently very protective of his mother and his younger siblings, and his mother, it appears, was also somehow involved in the fracas immediately before the stabbing.

Counsel for the applicant before this Court did not contend for anything less than a detention order.  However
Mr McLennan submitted that a period of two years detention is manifestly excessive. He submitted that an appropriate sentence would have been a sentence of six months detention for the breaking and entering and arson and a cumulative sentence of six months detention and 12 months probation in respect of the grievous bodily harm offence. He submitted that a combination of those sentences may be imposed by the combined effect of section 121C and sections 170 and 171 of the Juvenile Justice Act 1992.

The main difficulty in sentencing in this case was and is that the applicant's prospects of rehabilitation do not appear to be good.  It is not just that he does not express any remorse for the grievous bodily harm incident saying that "it just happened on the spur of the moment".  His resentment against Mr Thomas, both for what he thinks of the latter's attitude to his mother and also for his assault on the applicant and his brother, enables one to understand that if not excuse it.

It appears that generally he is unwilling to accept responsibility for his wrongs tending to blame others for the position in which he finds himself from time to time after committing offences.  This appears in part to be attributed to his immaturity and it must be said that his prospects of rehabilitation are by no means hopeless. 

Despite being a member of a family in which alcohol appears to be a problem, he does not have a problem with alcohol or, it appears, with drugs.   He is, as I have already mentioned, caring and protective of his mother and his younger siblings and he has some long term goals involving his own self-improvement.

The main factors in the applicant's favour appear to be the mitigating circumstances involving the principal offence, principally Mr Thomas' violent and abusive behaviour towards the applicant and his siblings, the applicant's youth and his prospects of rehabilitation.

We were referred to a number of cases said to be comparable.  That which is closest to the present, and none are very close, relied on by both parties before us is Johnson,
CA No 398 of 1995, 28 November 1995. 

The complainant in that case was also the aggressor, but he was about the same age as the applicant who was 13.  At a school dance he sought out the applicant and pushed and punched him.  After punching him one or two times the applicant drew a knife and stabbed the complainant in the upper abdomen penetrating his right lung and the right side of his heart. 

Fortunately the victim made a complete recovery, but he has been left with a disfiguring scar running from neck to navel and substantial psychiatric damage.  Like this case it was a grossly disproportionate reaction to the provocation and, as the learned presiding Judge mentioned during the course of this appeal, the major factor in that case was the fact that the applicant had seen fit to carry a knife to a school dance. 

A sentence of 12 months detention to be released after six months was not disturbed by this Court on appeal.  Of course, as we have said on many occasions before, that is not a decision of this Court that the sentence imposed could not have been higher.

The other case relied on by both parties, which has some relevance, was Bassett, CA No 150 of 1995, 7 June 1995.  It involved a stabbing by a 16 year old at a party, after he had become drunk and aggressive.  Prior to the stabbing he had threatened the victim with cutting him up.  He was sentenced to 12 months detention for the offence of grievous bodily harm and an additional period of probation for a further offence of wounding. 

The sentence was not disturbed notwithstanding the absence of previous convictions because it was said that the applicant deliberately drew the knife and used it to cause serious and permanent injury.

It may be distinguished in that respect from this case where notwithstanding that the applicant apparently took the knife with him from his home, the stabbing was nevertheless a spontaneous reaction to the assault upon him and his brother.

Having regard to the mitigating factors I have mentioned and those cases, it seems to me that the sentence of two years detention was manifestly excessive.  I think that a period of one year's detention would be sufficient punishment for the totality of the criminal conduct including the arson if it is possible to couple that with a period of probation.  That in effect was what was contended for by Mr McLennan.

In my view the effect of the sections referred to by
Mr McLennan is as contended for by him and it is therefore possible to impose the sentences which he proposed.  I would emphasise, however, that I would impose a sentence in that way to ensure that the applicant undergoes a period of probation after he is released from detention.  I would otherwise have imposed a sentence of 12 months for the grievous bodily harm and made all other sentences concurrent.

I would therefore grant the application, allow the appeal, set aside the sentences imposed below and in lieu sentence the applicant in respect of the offences of breaking and entering with intent and arson to six months detention and sentence him on the offence of grievous bodily harm to a sentence of six months detention with a further 12 months probation.  The sentence imposed for grievous bodily harm to be cumulative upon the other sentences.

McPHERSON JA:  I agree.

MACKENZIE J:  I agree.

McPHERSON JA:  The order will be as Mr Justice Davies has just stated it.

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