R v Darke [1996] QCA 303

Court of Appeal (Qld)|1996-08-20|Before: Matthews J, Thomas J, Jersey J, Dowsett J

The applicant then with the knife still in his hand, punched Keller four or five times in the face and head. That was the offence of assault occasioning bodily harm. The applicant said that he saw a puddle of blood developing underneath Keller and after yelling to someone else at the party to attend to Keller, he the applicant, ran off. The learned sentencing Judge pointed out that the Courts must take a very serious attitude towards offences such as this wounding involving the use of a knife and additionally and importantly, referred to the applicant's conviction in November 1991 for grievous bodily harm.

These offences occurred in February 1994. The circumstances of the offence for which he was convicted in November 1991 were these, a fight broke out in the early hours of the morning at an hotel. The applicant punched the victim and while the victim was on the ground, the applicant kicked him once in the head.

There were, however, very special features about Claverie which Mr Justice Matthews emphasised, stating that he regarded the case "as standing very much on its own facts". In particular, I mention the circumstance that the respondent, having wounded the victim, immediately attempted to obtain assistance for him and quite comprehensively, summoning the ambulance and when the ambulance did not arrive, helping the victim into a motor vehicle and taking him to hospital himself.

The second particular feature was that the complainant in that case was a reluctant witness and was said to bear the respondent no ill will. The second case to which Mr Hamlyn-Harris referred was Service, Court of Appeal number 280 of 1985, where two years imprisonment was substituted on an appeal by the Attorney General in the case of a respondent aged 20 who had been placed on probation for an offence of unlawful wounding which occurred in the course of a fight outside an hotel.

The point raised with relation to that by Mr Hamlyn-Harris, was the premeditated nature of the offence which it was suggested may not have been quite the case here, although I have for my part some difficulty in accepting that submission. The particular feature of Service to which I would draw attention, is that the previous history of the respondent there did not include any offences of violence, which throws into stark relief the position of the current applicant with his conviction for having done grievous bodily harm, comparatively recently before these particular offences.

The case to which I would draw particular attention is one relied upon here for the Crown and that is Coonan, Court of Appeal number 83 of 1995, which involved the Courts upholding a sentence of three years imposed upon a 48 year old man who was convicted of unlawful wounding following a trial. Also, I mention the case of Savage, Court of Appeal number 369 of 1990, where the Court upheld a sentence of two and a half years imprisonment imposed following conviction by a jury.

That again was a case of wounding with a knife. In light of all of those cases and the facts of this one, I could not conclude that the applicant has shown the sentences imposed have been manifestly excessive. The particularly important features in the end are certainly the need to achieve deterrence with relation to the use of the knife in circumstances like this, first; and second, the fact that so recently before this particular incident, the man had been convicted of doing grievous bodily harm and imprisoned for that.

He obviously hadn't learned his lesson and those particular features I think, combined against the background of all of the other matters to which I have referred, amply to warrant the sentence which was imposed. I would refuse the application.

THOMAS J: I should add that it was urged on behalf of the applicant that the circumstances of the complainant apparently reaching for the knife made the complainant apprehensive of what might happen to him. It was further urged on his behalf that since these offences were committed (in early 1994) more than two years have elapsed during which he has been well occupied, has a good work history and has produced good references.

He is still only 23 years old and has pleaded guilty. These factors may point to some hopeful prospects of rehabilitation, but I think that the learned sentencing Judge's recommendation for parole after 15 months probably gives sufficient weight to those factors. It seems to me that the sentence that was imposed was a severe one, but I cannot say that it was manifestly excessive. The order of the Court will therefore be application refused.

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