Court of Appeal (Qld)|2000-05-05|Before: Davies J, Murdo P, Fryberg J

The applicant is 27 years of age, having been born on

26 July 1972. He has an extensive prior criminal history. This dates from 1989 and consists mostly of offences of dishonesty. He was first sentenced to gaol for offences of that kind in early 1991, being then imprisoned for 18 months with a recommendation for parole after nine months for a number of offences, including breaking and entering with intent. Thereafter he has been in prison on numerous occasions.

In addition to those offences the applicant has been convicted of three offences of assault. On 23 August 1991 he was convicted of assault occasioning bodily harm and sentenced to two months imprisonment. On the same day he was convicted of a further offence of assault. Then on

25 June 1996 he was again convicted of assault occasioning bodily harm and sentenced to 12 months imprisonment.

On the present occasion the applicant stabbed his helpless victim four times with a 10 inch boning knife, once in the chest, twice on the arm and once on the leg. The victim bled profusely but has fortunately made a complete recovery.

The circumstances in which this offence occurred are extremely serious. On the day in question the applicant, his co-offenders Lopez and O'Malley and the victim, Agius, attended Court for the trial of a man, Nuendorf, who was charged with an offence which involved a home invasion. Nuendorf was apparently a friend of the applicant and at least of Lopez and was also known to Agius.

Agius was also apparently friendly with Nuendorf's victims and the applicant and his co-offender, Lopez, had expected that Agius would in some way have prevented those victims from giving evidence against Nuendorf, thereby ensuring his acquittal. That did not occur, the victims attended Court to give evidence and Nuendorf accordingly pleaded guilty.

After the Court hearing the applicant and his companions offered to drive Agius home. Agius unwisely accepted the offer. The car was driven by the applicant's 22 year old girlfriend, O'Malley. The applicant sat in the front seat and Agius and Lopez occupied the rear seats.

During the course of the journey both the applicant and Lopez made threats against the victims of Nuendorf's home invasion, saying things like, "They're all fucking dead." They demanded to know where those victims were living. Agius refused to answer. Then, apparently at Agius's request, the car was brought to a halt, whereupon Agius attempted to alight. Lopez held him in a headlock, gouged at his eyes and punched him in the head four or five times saying, "You're dead meat, you double-crossed us."

It was then that the applicant pulled a 10 inch boning knife from under the car seat and said to Agius, "I'm going to cut you up." He then proceeded to stab Agius four times in the manner I have described whilst Agius was being held by Lopez. Fortunately, Agius managed to struggle free and get out of the car and a passing motorist came to his assistance.

It was accepted on the sentence hearing that the applicant was the principal offender, not only in the sense that it was he who used the knife, but also because it was he who appeared to be most upset at Agius's failure to prevent the victims of Nuendorf's invasion from giving evidence against him.

When apprehended some time after the offences the applicant did not take part in a record of interview. However, some time later he pleaded guilty and his guilty plea was taken into account by the learned sentencing Judge in imposing the sentence which he did.

By the time he was sentenced the applicant had also spent a considerable time in custody, a total of 429 days. However, it was common ground that this was not solely in respect of the subject offence. It was not said before the sentencing Judge what the other offences were but we were told that they were trafficking in heroin and money laundering. It is still not apparent what will happen in those proceedings.

His Honour nevertheless thought it correct to take into account this period of custody in mitigation, at least to some extent, of the sentence which he would otherwise have imposed. The main argument for the applicant in this Court, ably put by Mr McLennan of counsel, is that the learned sentencing Judge failed to give sufficient weight both to the plea of guilty and to the period of pre-sentence custody in imposing the sentence which he did.

It was submitted that the sentence of six years imprisonment, the sentence which was in fact imposed, would have been the appropriate starting point before taking those matters into account and that consequently a sentence of four years imprisonment would have been the appropriate sentence. Consequently it was submitted that the sentence which was in fact imposed, six years, was manifestly excessive.

In my view those submissions involve two errors. The first is in thinking that the period of six years would have been the maximum appropriate sentence for this offence before taking into account the plea of guilty and the period of pre-sentence custody. And the second is in assuming that the guilty plea and the pre-sentence custody should have reduced this sentence by as much as a third.

The offence was a very serious one of its kind. As the learned sentencing Judge said, it struck at the very heart of the administration of justice. This was because it involved a vicious and cold-blooded attack on a man because he had failed to prevent victims of a home invasion from giving evidence against their assailant. The seriousness of this aspect of the offence hardly needs emphasis. If victims of crime are to be able, without fear of reprisal, to give evidence against their attackers, conduct of this kind must be deterred in the strongest possible way.

Indeed it is this aspect of the matter which, in my opinion, makes reference to other cases of grievous bodily harm of marginal relevance only.

The other serious aspect of this matter is the applicant's prior criminal history. It is not just that it is a long and substantial criminal record but that it also involves prior convictions for offences of violence. Leaving aside therefore the mitigating factors, the learned sentencing Judge could have imposed a sentence significantly longer than six years and could have made a declaration that this was a serious violent offence.

I should mention here that he was not asked to make any such declaration by the Crown Prosecutor, and that appears to be at least a reason why his Honour did not make that declaration.

It is true that some reduction in the sentence otherwise appropriate should generally be made for a plea of guilty, and his Honour acknowledged that it was appropriate to make such allowance here. However, when one takes into account that the applicant did not come forward to the police and was located only seven months later, that he then refused to take part in a police interview and that his plea was very late indeed, it would not have been surprising if his Honour had not made a substantial allowance for the guilty plea.

An allowance should also have been made for the time spent in custody. Mr McLennan referred us to three decisions of the Victorian Court of Appeal, two of them reported, those being The Queen v. Renzella (1997) 2 Victorian Reports 88 and Arts and Briggs (1997) 93 Australian Criminal Reports 56, which held that where no declaration is possible under the Victorian analogue of section 161 because the custody was not for the subject offence and for no other reason, the period of custody should be taken into account under a general discretion.

A similar approach was taken by this Court in The Queen v Skedgwell [1998] QCA 93; (1999) 2 Queensland Reports 97.

The Victorian cases also adopted the approach of ordinarily taking into account that custody at the first opportunity which would mean that in the present case, Mr McLennan submitted, the learned sentencing Judge should have taken the whole of the 429 days into account in imposing the sentence which he did.

There is, in my view, much to commend the approach that in a situation like this, the whole of the pre-sentence custody should ordinarily be taken into account at the first opportunity. That approach was arguably not open in Skedgwell.

However, the Court in Skedgwell made it clear that in making allowances for pre-sentence custody and matters not coming within section 161, the sentencing Judge should make it plain whether, and to what extent and in what manner allowance was being made.

Although, ordinarily, as I have indicated, it is appropriate in cases of this kind to take the whole of the pre-sentence custody into account at the first opportunity, I do not think that his Honour was obliged to do so here. However, his Honour should, in my view, have made it clear how he took that period of custody into account.

In the circumstances, however, I do not think that effects the totality of the sentence. Even if his Honour had taken into account the whole of the 429 days, I do not think the sentence which he imposed, bearing in mind the fact that he made no declaration this was a serious violent offence was manifestly excessive. I would therefore refuse the application.

THE PRESIDENT: I agree. There are various serious aspects to this offence. The applicant was comparatively mature at 27 years of age, as Justice Davies has pointed out. He had a serious prior criminal history which included offences of dishonesty.

The offence itself involved elements of interfering with the criminal justice system. Those serious aspects demonstrate that the sentence, six years imprisonment with no declaration under section 161B(3) Penalties and Sentences Act 1992, properly reflects the time spent in

pre-sentence custody and the applicant's late plea of guilty.

The application for leave to appeal against sentence should be refused.

FRYBERG J: I also agree with what Justice Davies has said. In the present case the onus lay upon the applicant in the Court below to adduce evidence going to factors in mitigation of sentence if he wished to rely upon such factors: see The Queen v Morrison.

Mitigation by reason of time spent in custody falls in the class of case where evidence is needed. Here the Judge was given very little information with which to make an assessment. In other cases those who wish to have pre-sentence custody taken into account outside the parameters of the Act and, perhaps, inside it too for that matter, should be careful to ensure that circumstances which it is desired to have taken into account are fully explained to the sentencing Judge.

THE PRESIDENT: The order is, the application for leave to appeal is refused.

THE QUEEN v JUSTIN ALASTAIR AINSWORTH [2000] QCA 163 (5 May 2000)

THE QUEEN v JUSTIN ALASTAIR AINSWORTH [2000] QCA 163

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THE QUEEN v JUSTIN ALASTAIR AINSWORTH [2000] QCA 163 (5 May 2000)