R v Vea

[2001] QCA 47

[2001] QCA 47

COURT OF APPEAL

de JERSEY CJ
WILSON J
DOUGLAS J

CA No 222 of 2000

THE QUEEN

v.

JILL VEA  Applicant

BRISBANE

..DATE 20/02/2001

JUDGMENT

THE CHIEF JUSTICE:  I will invite Mr Justice Douglas to give the first judgment.

DOUGLAS J:  The applicant was convicted on 2 August 2000 before a District Court Judge in relation to offences which occurred on 19 January 1999.  Those convictions were in respect of one charge of grievous bodily harm and one charge of contravention of a domestic violence order.

In respect of the grievous bodily harm, she was sentenced to three and a half years imprisonment with a recommendation from the learned Judge that she be released on parole after having served 12 months of that sentence.  In respect of the second charge, a conviction was recorded and no further punishment was added.

The circumstances were that both the applicant and her de facto husband had domestic violence orders against each other.  On the day of the offence they had been drinking together for most of the day at the Sundowner Hotel and the offences occurred when they apparently returned home to their flat at Woodridge.

The relationship between them was said to be turbulent and there was evidence of frequent arguments between them at that flat. 

The complainant, a Mr Paull, suffered 10 stab wounds to his body, one of which was a deep stab wound to the left chest penetrating his lung and which was life-threatening.  It was this wound which was the basis for the charge of grievous bodily harm.

The applicant had virtually no memory of the events other than being slashed on her hand by a knife, perhaps the same knife which was used to attack Mr Paull.

The learned trial Judge in sentencing the applicant took into account the fact that there may have been some evidence of provocation or self-defence.  He said, at page 43 of the record:

"... can, I think, proceed on the basis that whatever the provocation that may have been offered by Paull, or whatever the nature of any assault by him on you, the use of deadly force by you was not lawful.  By 'deadly force' I mean force that was potentially life-threatening.  The sentence must, however, ... be moderated to allow for the possibility that you were acting in defence, with limited deliberation on your part, when you used the knife."

The applicant before us expressed concern that she will not be released on parole after having served 12 months of her sentence.  The Progression Matrix which is appendix 3 to a departmental document was put before us.  It reveals that according to departmental guidelines, which are somewhat rigid, she must serve 12 months of the sentence, it being a sentence for less than four years but one of a violent nature.

That seems to me to cut across the recommendation by the Judge for her to be released after having served 12 months, that is a release on parole.  Already, her assessment for this release has been put back by some six weeks in that the department requires assessment for release on parole to begin six months before that can occur.

The sentence was one which was perhaps on the light side in respect of the nature of the offence but it must be said that even though the applicant has a fairly extensive criminal history there is no history of violence whatsoever.  Her history is one of illicit drugs and dishonesty. 

In my view, the Judge was endeavouring to set a program whereby this applicant would be released after having served a period of 12 months.  In my respectful view, and taking into the account the departmental guidelines, I think that this should be ensured and the appropriate way to do so is to be vary the sentence to suspend it upon the applicant serving 12 months of that sentence and to order that the operative time for that suspension be three years.

Therefore, in effect, if the applicant offends within a period of three years after having been released she will be brought back before a Judge of the District Court to be dealt with for that breach.  I would order that the sentence be varied by suspending it upon the applicant having served 12 months of the term of three and a half years and order that the operational period for that period be three years.

THE CHIEF JUSTICE:  I agree.  I should say that I consider the three and a half years imprisonment imposed as the head sentence to have been towards the bottom of the relevant range for this crime.

The learned Judge apparently intended in the absence of any relevant intervening circumstance that the applicant should be released after having served 12 months. There is no suggestion of any such circumstance.  The applicant's concern that she might not be released then has some foundation for the reasons explained by Mr Justice Douglas. 

I also consider that the Court should refine the sentence by injecting the security of the suspending of the sentence after 12 months.

WILSON J:  I agree with the reasons of Mr Justice Douglas and with the orders he proposes.  I agree also with the observations of the Chief Justice.

THE CHIEF JUSTICE:  The application is allowed, the appeal is allowed to the extent of varying the sentence imposed for the count of doing grievous bodily harm such that it provides for three and a half years imprisonment to be suspended after the applicant has served 12 months imprisonment for an operational period of three years.

Do you understand what has happened, Ms Vea?

APPLICANT:  No.

THE CHIEF JUSTICE:  I should tell you.  What has happened is that we have deleted the recommendation in relation to parole after 12 months and in lieu of that we have ordered that your term of imprisonment be suspended after 12 months so you will be released after 12 months, that is now certain from your aspect.  You understand that?

APPLICANT:  So I do 12 months in gaol?

THE CHIEF JUSTICE:  Yes.  Not from this point, from last August when you started serving your term.

APPLICANT:  So that is no home D offer or not?

MR RIDGWAY:  A home detention remains an eligibility subject to departmental requirements.

THE CHIEF JUSTICE:  Yes, you can still, as I understand it, apply for home detention.

MR RIDGWAY:  The Court's order guarantees though at least that she will be discharged‑‑‑‑‑

THE CHIEF JUSTICE:  But you will definitely be released after 12 months which is, as I understood it, what you were seeking from the Court but the other thing I should say is that we have imposed an operational period, as we call it, of three years. That means that for three years from the date of release - that is right, Mr Ridgeway, is it not, you must not offend in any serious way otherwise you can be called upon to serve the balance of the three and a half years, in other words, the two and a half years remaining after your release.

If within the period of three years after you are released you offend in any sort of serious way then you are likely to be required to serve the balance of your three and a half year term, you understand that?  So you have to keep your nose clean.

APPLICANT:  Yes, thank you.

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