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[2009] QCA 334
General information, not legal advice.
Court of Appeal (Qld)
2009-10-30
Keane, Muir and Fraser JJA, Separate reasons for, judgment of each member of the Court, each concurring as to the orders
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Cui [2009] QCA 334
PARTIES: R v CUI, Kun (applicant)
FILE NO/S: CA No 206 of 2009 / DC No 2764 of 2008
DIVISION: Court of Appeal
PROCEEDING: Sentence Application – Delivery of Reasons
ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: Orders delivered 22 October 2009 / Reasons delivered 30 October 2009
DELIVERED AT: Brisbane
HEARING DATE: 22 October 2009
JUDGES: Keane, Muir and Fraser JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: Delivered ex tempore 22 October 2009: / Upon the applicant's solicitor undertaking to inform the applicant of the requirements of s 160G(3) of the Penalties and Sentences Act 1992 and the consequences of failing to comply with that section, the orders of the Court are:
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on his own plea of one count of unlawful wounding – where applicant sentenced to two years imprisonment, suspended after six months, for operational period of two and a half years – where wounding of very minor nature – where applicant first offender – where applicant had apologised to complainant – where applicant and complainant remained friends – whether sentence manifestly excessive / R v Kidner [2005] QCA 430, distinguished / R v Meehan [1996] QCA 215, applied
COUNSEL: T D Gardiner for the applicant / M B Lehane for the respondent
SOLICITORS: Bell Miller for the applicant / Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: On 24 August 2009 the applicant was convicted on his own plea of one count of unlawful wounding. He was sentenced to two years imprisonment, suspended after six months, for an operational period of two and a half years. The applicant applied for leave to appeal against this sentence. On 22 October 2009, at the conclusion of argument on the application, this Court ordered that the application for leave be granted, the appeal be allowed, the sentence set aside and, in lieu thereof, the applicant be sentenced to 18 months imprisonment with his parole release date being fixed as at 22 October 2009. These orders were made on the basis that the reasons of the Court would be published later. What follows are my reasons for making the orders of 22 October 2009.
I propose first to summarise the circumstances of the offence, the applicant's personal circumstances and of the approach taken by the learned sentencing judge. I will then discuss the arguments agitated by the parties in this Court.
Circumstances of the offences
The offence occurred during the evening of 11 December 2007. The complainant was a 24 year old male who was a friend of the applicant. The applicant was living in a unit with two other friends. The applicant was in his room with the door locked when the complainant knocked at the door asking for the repayment of $20 he had lent the applicant. The applicant tried to ignore the complainant's importunings, telling the complainant to "fuck off". The complainant began to kick or punch the door to the applicant's room.
Ultimately, the applicant emerged from the room armed with a knife. The applicant put the knife to the complainant's throat saying "I will cut you." He then cut the complainant's left upper arm with the knife. The applicant then used the knife to cut a door to a storage room.
One of the applicant's flatmates asked the applicant what he was doing, and the applicant responded by threatening to cut him with the knife. The others then forced the applicant back into his bedroom.
Later the applicant went downstairs with the knife, yelled at the complainant "I will give you your money back tonight", and drove away. The applicant was stopped by police and arrested. He cooperated with police, although he made later claims against the complainant and asserted that the knife was not sharp.
The complainant suffered a wound to his left upper arm: it was five centimetres long and quite superficial. It did, however, require stitches. The complainant also suffered a scratch to his left forearm.
The applicant's personal circumstances
The applicant was born in China. He was 25 years old at the time of the offence. He was 26 years old at sentence.
The applicant has no previous convictions. He was in employment when he was sentenced. Character references which spoke highly of him were tendered to the learned sentencing judge.
The applicant made a personal apology to the complainant; they have remained friends. The applicant also paid $3,000 to the complainant by way of compensation for the latter's injury.
The sentence
Despite the remorseful attitude demonstrated by the applicant by his apology and payment of compensation, the matter was listed for trial on two occasions. The applicant's counsel's position was that, although the applicant's plea was a late one, it was clear that the applicant had accepted that he was responsible for wounding the complainant.
The learned sentencing judge noted the applicant's cooperation with the authorities and the relatively minor nature of the injury suffered by the complainant. Her Honour also accepted that the offending was out of character for the applicant.
Her Honour was, correctly, most concerned by the circumstances that the applicant had used a knife to inflict the wound. The use of such a weapon has the potential to cause great harm. Her Honour said:
"… [I]t is the potential for grievous injury that makes this case serious. I have seen too many examples of people killed because somebody like you reached for a knife in anger without any intention to kill or do serious harm, but just because the offender was angry."
The arguments in this Court
On the applicant's behalf it was submitted that the learned sentencing judge placed undue weight on the potential harm involved in use of the knife in consequence of which her Honour was distracted from a proper appreciation of the relatively minor harm of the kind which occurred here.
The applicant also argued that the learned sentencing judge gave insufficient weight to considerations in mitigation of sentence, e.g., that the applicant is a first offender, that the applicant had apologised to the complainant, and that they had remained friends.
On the applicant's behalf it was originally submitted that the range of sentence was up to 18 months imprisonment, fully suspended. In this Court, it was accepted on the applicant's behalf that the applicant would benefit from supervision on parole on his release from custody.
On behalf of the respondent, it was submitted that the learned primary judge was correct to recognise that the use of a knife was a serious aggravating circumstance in this case. While the wound actually suffered by the complainant was relatively minor, the use of the knife to inflict the wound makes the wounding more serious. As Chesterman J observed in R v Kidner,1 this Court made it clear that offences of wounding, inflicted by a knife, are to be punished by custodial sentences, even where the offender is young, is a first offender and is otherwise of good character.
It was also said for the respondent that the applicant, at 24 years of age, was not entitled to the same consideration in terms of his youth as the offender in R v Kidner. Further, and importantly for present purposes, in R v Kidner the offender and the complainant had reconciled and the complainant did not want the offender to be imprisoned.
That having been said, it must be acknowledged that reference to the decision in R v Kidner does tend to suggest that the sentence imposed in this case was disproportionate to the criminality of the offence. In R v Kidner, a 22 year old offender who, while drunk, inflicted a shallow three centimetre long wound on his brother by stabbing him in the stomach with a small kitchen knife was sentenced to two years imprisonment suspended after three months for an operation period of two years. The offender had no criminal history. This decision confirms that where a knife is used to wound a victim, even a young offender with no criminal record must expect to serve a term of actual imprisonment,2 but the sentence imposed in that case for a stabbing to the stomach involved only three months actual custody, and suspension thereafter.
Conclusion
In my respectful opinion, the proper balancing of these competing considerations led to a sentence of 18 months imprisonment with parole release fixed at 22 October 2009.
MUIR JA: I agree with the reasons of Keane JA and with his proposed orders.
FRASER JA: I agree with the reasons of Keane JA.
R
Cui
I respectfully consider that the sentence which was imposed did not sufficiently recognise the very minor nature of the wounding which occurred and the compelling considerations in mitigation of sentence to which reference has been made. As a result, the sentence which was imposed was manifestly excessive. Accordingly, it falls to this Court to exercise the sentencing discretion afresh.
That a custodial sentence was imposed below reflects the seriousness with which wounding with a knife is regarded by the courts. But the concern of the courts as to the use of the knife cannot be allowed to overwhelm other considerations such as the very minor nature of the wounding which occurred here, the strong evidence of remorse, the offender's previously good record and the absence of any reason to apprehend a risk that he will re-offend in this way. To the extent that a period of actual custody was arguably warranted, I considered that the period served by the applicant to the date of the hearing in this Court was sufficient.