R v Wiggins

[1999] QCA 158

99.158

COURT OF APPEAL

McPHERSON JA
PINCUS JA
MOYNIHAN J

CA No 446 of 1998

THE QUEEN

v.

JASON TROY WIGGINS

BRISBANE

..DATE 05/05/99

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal against sentence in this matter is Jason Troy Wiggins.  He was convicted on his own plea of guilty to a charge of doing grievous bodily harm with intent to do grievous bodily harm. The sentence imposed in respect of that offence was seven years and six months imprisonment. 

The circumstances of the offence, which took place on
11 March 1997, are that the applicant inflicted severe and disfiguring injuries on his de facto wife in a savage and sustained attack.  He used his army boot knife, which has a blade which is sharp on both sides, to stab her repeatedly in the presence and in front of her four-year-old child.

The following injuries resulted, that is to say, four stab wounds to the chest, a stab wound to the upper abdominal area with small lacerations to the liver, a large "through and through" wound to the right upper arm which completely divided an upper artery and a branch of a nerve.

This was a life-threatening injury which has resulted in permanent dysfunction.  In addition, there were multiple stab wounds to the right forearm and stab wounds to the left forearm.  The stab wounds to the left hand involved compound fractures of the index and middle fingers.  There was a stab wound to the left thumb dividing a tendon and a large stab wound to the calf of the leg with muscle laceration. Together also with two disfiguring wounds to the face.

It need hardly be said that this is among the most serious forms of sustained attack and injury that has been the misfortune of most of us in this Court to see.  The complainant has suffered, as one would expect, a number of physical and psychological effects from the attack.  She has been left with a permanent dysfunction in relation to the use of her arms and hands.  Her ability to care for her children has been impaired as a result of these injuries, and she also suffers from post traumatic stress disorder and recurrent episodes of depression.  She continues to fear retribution from the applicant, and she is naturally having some difficulty in coping with her role as a mother, although the doctor's opinion is that her prognosis is promising.

The applicant, who stabbed himself in his throat after the event, was diagnosed as suffering from a delusional disorder.  He told the police he believed his wife had been unfaithful to him and that he wanted to hurt her and he was going to cut her, kill her or disfigure her so that she couldn't continue to be unfaithful to him.  I may say, if it is not already clear, that there is not the slightest evidence of which we are aware that this was anything but a delusion on his part. 

The applicant's personal circumstances are that he was born on 26 November 1973 and was therefore aged about 23 at the date of this offence.  He has no prior criminal history.  After being arrested for the offence, he was transferred to a  security hospital where he was detained for some 240 days before being transferred to prison for a further 359 days prior to sentence, making a total of 599 days in all.

It is accepted that the head sentence, or that which the Judge said he originally had in mind of eight years, is appropriate.  The question is, however, whether the learned sentencing Judge gave sufficient effect in the course of his sentence to the period during which the applicant was detained in a security patient's hospital.

As to that, what His Honour said in his sentencing reasons was that he had made allowance, by way of the declaration required under the Penalties and Sentences Act, for the period of 359 days during which the applicant was in prison on remand.  In short, he declared that period was to be taken as time served under the sentence.  On the other hand, he felt unable to make an order to the same effect in respect of the period of 240 days during which the applicant had been detained in the security hospital.

In the result therefore he decided that the course he should take was to reduce the head sentence of eight years, which he had in mind, to the seven and a half years which he actually imposed.  In doing so he referred to the period of six months involved in that reduction as amounting to some 200 days.  As it happens that could not have been an exact calculation because half of a year or six months is approximately 182 or 183 days rather than 200 days.  In addition, of course, it will be noticed that the term during which the applicant was in the security hospital was a total of 240 and not either 200 or even 183 days.  The result is that there is, somewhere in there, a period of some 57 or so days which, on one view of the legislation, the applicant should have had the benefit of but will not receive under the sentence with which we are concerned here on the application for leave to appeal.

So far as the statutory provisions are concerned they appear essentially to be these; that s.66(1) of the Mental Health Act 1974 deems any person who, by virtue of that Act, is required to be detained in any place, to be in legal custody. It seems to me, with respect, that a person required to be so detained is held in legal custody and is therefore, within the meaning of s.161(1) of the Penalties and Sentences Act, an offender who has been "held in custody" in relation to proceedings for an offence.

To satisfy the requirement of s.161(1) it is, of course, also necessary that the custody in which the offender was being held is for the purpose of those proceedings for an offence, and "for no other reason". Nevertheless, it seems to me to be clear that on the facts here disclosed that condition too is satisfied in this case.

The overall result therefore is this; that, to achieve both justice to the applicant and accomplish what his Honour evidently had in mind in starting with a head sentence of eight years, it would be appropriate to fix the sentence as a term of imprisonment of eight years in the case of the applicant, but to declare that a period of 599 days was to be treated as or taken as having been served under that sentence or as time served under that sentence.

In order to do this, it would be necessary to increase the head sentence from seven and a half to eight years, which is something that this Court would ordinarily not do without first giving the applicant an opportunity on notice of withdrawing his appeal.

However, Mr Shanahan, who appears on behalf of the applicant in these proceedings, has obtained the consent of the applicant to the course suggested, and the Crown, in the person of Mr Heaton who appears for the respondent, also consents to that course.

In the result therefore I consider that the application for leave to appeal should be granted and the appeal allowed to the extent of increasing the head sentence to one of imprisonment for eight years and declaring that the term of 599 days spent by the applicant either on remand or in the security hospital be taken to be time served as part of the sentence of eight years to which I have referred.  That is the order I suggest.

PINCUS JA:  In the seven years since this Court was established the proportion of cases in which offenders have used knives on others seems to have increased.  I assume that this reflects a rise in the popularity of knives as weapons.

It is my opinion that Courts should ensure that offences involving use of knives, enabling the infliction of serious injury with ease, are given punishment at a level which achieves some deterrence.  In short, I think that the use of knives by offenders needs to be discouraged as far as Courts can do it.

Subject to those observations I agree with the reasons given by the learned Presiding Judge and with the order which His Honour proposes.

MOYNIHAN J:  I agree with what has been said by the other members of the Court and with the order proposed by the Presiding Judge.

McPHERSON JA:  That order is satisfactory to you gentlemen?

MR HEATON:  Yes.

MR SHANAHAN:  Yes.

McPHERSON JA:  Very well.  That will be the order of the Court.  That is to say the order in the form in which I stated it.

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