R v Thompson

[1998] QCA 210

COURT OF APPEAL

[1998] QCA 210

DEMACK J
HELMAN J
CHESTERMAN J

CA No 97 of 1998

THE QUEEN

v.

RUBY JOANNE THOMPSON

BRISBANE

..DATE 19/06/98

JUDGMENT

CHESTERMAN J:  On 4 February 1997 the applicant appeared in the District Court in Mount Isa charged with the offence of unlawfully wounding one Clinton Daylight at Mornington Island on 24 October 1996.  She was admitted to a community service order for a period of 80 hours. 

The applicant's response to the order was described as less than satisfactory.  Over a period of 12 months she completed only 43½ hours of service, leaving an outstanding balance of 36½ hours.

The applicant's approach to supervision was, from the beginning, one of resistance.  She commenced performing her community obligations two months after service of the order upon her.  Numerous warning letters were ignored and unsubstantiated claims of illness were put forward to justify her absence.

On 3 February 1998 the applicant had failed to complete her order within the required period of 12 months. The Aboriginal Community Correctional Officer thought that the applicant was unsuitable for further community-based orders and therefore sought that the applicant be dealt with pursuant to section 126(4) of the Penalties and Sentences Act 1992 and
re-sentenced for the original offence.

The applicant was 29 years of age at the time of the offence.  The complainant was a 22 year old man who lived in a de facto relationship with the applicant's niece to whom he was often violent.  The offence occurred after the applicant, the complainant and some others had been drinking.

The complainant had not long before allegedly assaulted his
de facto partner, who had complained about the assault to the applicant.  She then spoke to the complainant and asked him to cease his attacks.  The complainant was obdurate, whereupon the applicant became annoyed and told him to leave.  They were then in the applicant's house.

She appears to have said to the complainant, "You'd better go or else I'll cut you."  He replied, insolently, "Go on.  You can do it.  You can cut me."  The applicant accepted the challenge, fetched a knife and stabbed the complainant in the shoulder.  She had no previous criminal history.  In imposing a community service order the sentencing judge said:

"You have pleaded guilty, which is very much in your favour.  It seems to me that there is a prospect that you will not do such a thing again.  Therefore, I feel that I should accept what your counsel says and that you should be given some community service...  If you do not do it, you will be back in court.  All you have to do is carry out the service and then you are free.  Do you understand that?"

The applicant responded affirmatively. 

As I have said, the applicant did not perform the requisite community service and appeared for re-sentencing before the District Court in Mount Isa on 26 March 1998.  She was then sentenced to one month imprisonment.  In passing sentence, the learned judge said:

"Unless people who are ordered to perform the community service perform it, the whole system will break down.  I take into account that you are 30 years of age, that you have other than this matter no criminal history, that you are married with one child and that you have performed

43½ hours of the community service." 

It is submitted on behalf of the applicant that the circumstances of the offence which were taken into account when the applicant was first dealt with remained relevant when the applicant was re-sentenced.  Those circumstances, it is submitted, did not justify a term of actual incarceration.  It was further submitted that the judge gave excessive weight to the need to enforce compliance with community service orders by imposing imprisonment as a deterrent. 

The appropriate sentence, it is submitted, was a term of imprisonment wholly suspended.  This will balance the need to deter offenders from ignoring the obligations inherent in community service orders but take into account the circumstances of the offence and the applicant's personal circumstances.  A sentence of one month imprisonment wholly suspended for six months is sought in lieu of the term of imprisonment imposed.

The Crown supports the notion that offenders should be deterred from breaching community service orders but accepts the applicant's submission that a short period of imprisonment is not apposite to achieve that deterrence.  The Crown points out that such persons often appeal and are usually granted bail, so that this Court is faced with a difficulty when dealing with the application.  The applicant would have been released on bail and the Court is naturally reluctant to return an offender to prison for a short period.  In this case, in fact, the applicant was granted bail on 1 April 1998.

It seems to me the sentencing judge faced a difficult task.  The applicant had committed a serious offence but, because of extenuating circumstances and her previous good character, she was dealt with leniently.  The seriousness of the offence was explained to her as was the consequence of not complying with the community service order.  She persistently and blatantly disregarded her obligations. 

I agree with the sentencing judge that disobedience to the terms of such orders is to be discouraged.  The precise nature of that discouragement is a matter for the discretion of a sentencing judge in each particular case.  I would not have thought it could be said that a sentence of one month imprisonment in these circumstances was manifestly excessive.  The offence for which the applicant was being dealt with was the unlawful wounding of an unarmed man with a large knife.  I would dismiss the application.

DEMACK J:  I agree for the reasons that have been given.  It seems to me that this Court cannot make it appear that orders made by the District Court in Mount Isa can be flaunted.  Here the matter has been considered carefully by two experienced District Court Judges.  The orders that they have made seem to me to be proper ones in the circumstances and the fact that it will be inconvenient for the applicant to be brought from Mornington Island to some place of incarceration does not seem to me to be a matter than can weigh heavily on this Court.

HELMAN J:  I agree.

DEMACK J:  The order of the Court is the application is refused. 

MR MEREDITH:  I would ask for a warrant to issue, Your Honour.

DEMACK J:  Order that a warrant issue for the apprehension of Ruby Joanne Thompson.

MR HUNTER:  Would Your Honours consider allowing that warrant to lie in the Registry for seven days, so that the applicant can be told and arrangements can be made.

DEMACK J:  Yes, the warrant will lie in the Registry for seven days.

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