R v Bell & Anor [1994] QCA 220

Court of Appeal (Qld)|1994-06-20|Before: Fitzgerald P, Davies JA, Demack J

The Attorney-General has appealed against a sentence imposed upon the respondent in the District Court at Kingaroy on 10 March 1994. The respondent pleaded guilty that day to a charge of unlawful wounding on 3 January 1994. The sentencing Judge placed the respondent on probation for two years and ordered him to perform 120 hours of community service. No conviction was recorded.

The respondent is a twenty-four year old aborigine who lived, and lives, in a de facto relationship with the complainant, a twenty-three year old aborigine, at Cherbourg. At the time of the offence, they had been living together for about four months.

The complainant was taken to hospital where she was found to have a one centimetre wound of undetermined depth. The blood flow was minimal and was stopped with pressure bandages. There was no evidence of nerve or blood vessel injury and stitches were not required. She was treated, and then returned to their home. The Court was told that she is supportive of the respondent and does not wish to see him in prison. According to what the sentencing judge was told by the respondent's counsel, he had been intoxicated, had taken "umbrage of the fact that she had gone walkabout on him", had seen the knife and picked it up and stabbed the complainant in the heat of the moment.

The applicant has a number of prior convictions, dating back to when he was about fifteen years of age, but none for violence. For his first offence he had been placed in care and control, but for subsequent offences he has been convicted and fined. Quite correctly, little weight was placed by the appellant on the respondent's criminal history.

In his submissions to the sentencing judge, the prosecutor suggested a custodial sentence with a recommendation for early consideration for release on parole. Submissions were then made for the respondent, pointing out such matters as his work history and his ongoing relationship with the complainant. Mention was made of good references tendered on the respondent's behalf and of the role which alcohol had played in the incident, and the sentencing judge was informed that the respondent had enrolled himself in an alcohol rehabilitation program shortly after the offence and continued on that program at the time of sentencing.

Similar matters were emphasised on the respondent's behalf before this Court, and our attention was drawn to a number of sentences imposed over a period of years by different District Court Judges. We do not propose to analyse these or the cases relied upon by the appellant in detail. There are a variety of different factors to be taken into account; for example, some of the persons sentenced were women who had responded to abuse by violence against their partners, while some others involved other forms of provocation and sometimes the wounding appeared unintended. The appropriate punishment in each case will depend on the circumstances. However, the respondent is correct in his submission that, on a number of occasions, unlawful wounding involving a knife did not lead to imprisonment or led to an order that a prison sentence be suspended.

It is desirable that the sentencing judge's remarks and his exchanges with the respondent be set out. The relevant extract from the appeal record is as follows:

"HIS HONOUR: Let me say this: occasionally to my great surprise I read in the press or see on television some statement that suggests that the Courts are very tough on the Aboriginal population. That is not my experience. My experience is that the Judges - I cannot speak for the Magistrates, but the Judges understand that aborigines do have peculiar problems and I think it is fair to say that they are treated almost invariably with a great deal of understanding by the courts. I have had a lot to do with Aboriginal prisoners, for example, in Mount Isa.

This is the first time I have been in this jurisdiction. I think it is fair to say that if this event took place in an ordinary Brisbane suburban setting between Anglo-Saxons and the accused had this sort of history, he would be going to gaol, perhaps hoping for some sort of early suspension or early recommendation. But in this case, I do take into account the different lifestyle which is followed in the community of which the prisoner is a member, the fact that regrettably, there are pressures on them and disadvantages which a lot of the rest of the community does not experience, and I approach this in a different way from the way I would approach the problem if he were a standard member of the white community.

I think there are some things that have to be recognised here. First of all, as you point out, he is still young. His record is not, it appears, from the punishment he has had, a very serious one. He has got some very good references and it appears that he does try to do something with himself. Most importantly, it seems that he has done something about his drinking problem. This is a classic case of somebody getting drunk and lashing out in a very dangerous way. I have to take into account that he and the complainant are reconciled. Presumably, she lives with him.

MR MENOLOTTO [Counsel for the respondent]: She does.

HIS HONOUR: She does not want to send him off to gaol. I am going to give him a chance by offering him two years probation and at this stage, at least, not recording a conviction.

MR MENOLOTTO: Thank you, Your Honour. I can say that I ------

HIS HONOUR: Just a moment. I will impose the order on the standard terms of s.94 and I will ask you to undertake on behalf of your instructing solicitor and yourself to explain to him, in language which he will understand, those terms.

He will have a further condition added that he undergo such psychiatric and psychological counselling during the period as is recommended and I think he should also be ordered to do some community service. I think a period of 120 hours would be appropriate and again I would ask you if you would undertake to explain to him in the language which he will understand the terms as set out in s.103. He will report to the Murgon office.

MR MENOLOTTO: That would be the closest. I don't believe there is an office at Cherbourg, no.

HIS HONOUR: Within 48 hours. Unless there is something further you want to say, I will ask him if he will accept these.

HIS HONOUR: Bell, were you listening to what I have just been saying?

HIS HONOUR: Are you prepared to accept two years probation and 120 hours community service?

HIS HONOUR: You know why I am treating you lightly, don't you? I explained it before.

HIS HONOUR: Your counsel and your solicitor will talk to you again. Let me tell you this: if you do not do your community service as you are told to and if you misbehave during your probation period of two years you will have to come back before me and I will treat you again on this matter. I will sentence you again and, if that is the case, you can be pretty certain that I will record a conviction and I will send you to gaol. I think an appropriate term would be something like a year's gaol and I might or might not suspend it after a couple of months. So that is what you are risking, gaol. Do you understand that?

HIS HONOUR: These remarks will be on the file so that if I ever have to deal with you again I will see what I have said here and if another Judge deals with you he will see what I have said. All right?

HIS HONOUR: Very well. You will have to sign some papers before you go but you can leave the dock now."

There are aspects of what his Honour said with which we must record our disagreement. It was right for him to have regard to the respondent's disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law's protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which an offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members.

At the same time, we are conscious of the difficult task faced by the sentencing judge, particularly in the light of the complainant's apparent wish that the respondent not be imprisoned and the understanding attitude of the prosecutor. In these circumstances, we are disinclined on an Attorney's appeal to order the belated incarceration of an offender who has been released back into the community by the sentencing judge and apparently resumed his relationship with the complainant and continued with his employment.

While the course taken below cannot stand, we consider that, in all the circumstances, the respondent should be sentenced to imprisonment for 1 year, such sentence to be suspended. The operational period of the suspension should be two years. There is no basis for an order that a conviction not be recorded and in any event no power to make such an order.

The appeal is accordingly allowed and the sentence imposed below set aside. In lieu, the respondent is sentenced to imprisonment for one year. The operational period during which the respondent must not commit another offence punishable by imprisonment if he is to avoid being dealt with under section 146 of the Penalties and Sentences Act 1992 for the suspended sentence is 1 year.

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