R v Kidner [2005] QCA 430

JUDGES: McMurdo P, Keane JA and Chesterman J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – where appellant sentenced to two years’ imprisonment, suspended after serving three months, for unlawful wounding – where appellant was due for release from custody in three weeks – whether sentence imposed was manifestly excessive.

COUNSEL: P Coombe (sol) for the applicant / S G Bain for the respondent

SOLICITORS: Aboriginal and Torres Strait Islander Community Legal Service for the applicant / Director of Public Prosecutions (Queensland) for the respondent

CHESTERMAN J: On 14 September 2005, the applicant pleaded guilty to, and was convicted of, one count of unlawful wounding. The offence was committed on 6 June 2004 at Palm Island.

The applicant is a young Aboriginal man, 22 years of age. After a day's drinking, he and his brother had an argument about the provision of further alcohol. The brother refused to find anymore and the applicant walked to the kitchen of the house in which they had been drinking, armed himself with a small kitchen knife and stabbed his brother on the left side of the abdomen. The wound was about three centimetres in length and was described as shallow. It required some suturing and treatment at the local hospital. There was some minor complications and the victim of the attack required some antibiotics and further treatment.

The applicant has no prior criminal history. He was in full time employment. He has the support of his family and his brother submitted that the applicant should not be sent to gaol.

The sentence imposed by the learned sentencing Judge was two years' imprisonment to be suspended after three months had been served with an operational period of two years.

It is obvious that the applicant has served most of the term of imprisonment. He is due for release on 13 December next, which is one day less than three weeks away.

It is immediately apparent that the Court is being asked to find that it is manifestly excessive, by way of sentence, to require the applicant to serve an extra three weeks’ imprisonment. This, it seems to me, is impossible unless it can be said that to impose any term of imprisonment at all upon the applicant was, and would have been, manifestly excessive. The cases make such an opinion impossible to hold.

We were referred in the course of argument to a decision of this Court, the R v Meehan [1996] QCA 215 in which the Court made the point that offences of wounding, inflicted by the use of a knife, are to be punished by condign sentences, even where the offender is young, is a first offender and is otherwise of good character. The use of a knife to inflict a wound makes the offence serious.

There were many factors which went to mitigation of the sentence. These are referred to in the submissions, but it seems to me that they were adequately taken into account in the sentence that was actually imposed.

Given the attitude of the Courts to offences of this type, it cannot be said that to require the applicant to spend anytime in prison would be manifestly excessive. That being the case, it cannot be argued with success that a requirement to spend a further three weeks in prison is manifestly excessive. For those reasons, I would refuse the application.

THE PRESIDENT: I agree. The facts before the sentencing judge were very scant and not of great assistance to this Court in deciding this application. The knife was described only as small and the wound as shallow and about three centimetres in length. It was sutured but we do not know from the record how many sutures were required. The complainant had reconciled with the applicant at sentence and did not want him to be sent to prison. The judge, however, rightly considered that deterrence was an important aspect of the sentencing process on the facts of this case.

Consistent with Mr Coombe's submissions, the two year sentence could well have been fully suspended or a lengthy period of community service could have been imposed. As Mr Justice Chesterman has demonstrated in his reasons, the applicant has not shown that the sentence which was imposed was outside the sound exercise of a sentencing discretion. The application should be refused.

KEANE JA: I agree with the reasons of Justice Chesterman and of the President. I would dismiss the application.

THE PRESIDENT: The application is refused.