R v Fatnowna [1999] QCA 492

Court of Appeal (Qld)|1999-11-25|Before: Pincus JA, Thomas JA, Helman J

PINCUS JA: This is an Attorney-General's appeal against sentence. The respondent was convicted of two offences, both arising out of the same incident. One was that he unlawfully assaulted one Barfield and thereby did him bodily harm and at the time he was armed with a wooden club and in company with one Colquhoun. The other offence was one of entering Barfield's dwelling with intent to commit an indictable offence in the night time and that the respondent used actual violence and was armed with a wooden club.

The first count was laid under section 339 of the Code, which creates an offence of assault occasioning bodily harm. The two elements of being armed with a wooden club and being in company with another are aggravating circumstances which raise the maximum penalty from seven to 10 years. The other offence is one created by section 419(1) of the Code, entering a dwelling with intent to commit an indictable offence. The maximum penalty is 14 years, prima facie, but the circumstances that the offence was committed at night, that actual violence was used and that the appellant was armed with an offensive weapon are each circumstances of aggravation which raise the maximum penalty to life.

We have had a look at the photographic exhibits which indicate the seriousness of the injuries. It is enough to say that the photographs do not indicate that the injuries were extremely extensive.

The motive for the offences is said to have been that Colquhoun had, in the course of a confrontation with the complainant six or seven weeks earlier, been assaulted by the complainant, his jaw being broken and he required extensive medical treatment. This is a matter to which further reference will be made, later.

The respondent was convicted after a trial so is not entitled to the leniency which might have been induced by a plea of guilty. The sentences imposed were 18 months for the assault and three years for the entry with intent, the first sentence to be suspended after four months and the second after six months.

In his sentencing remarks the primary Judge made reference to the respondent's criminal history and to the fact that there is no violence in it. The offences in the record include property damage, break and entering and stealing, false pretences, driving under the influence, driving unlicensed and drug offences. The most recent offences were committed in 1995 and had to do with discharge of unlicensed weapon while under the influence of liquor or a drug.

As is emphasised on behalf of the Attorney, the respondent was a mature man at the time of the offences, being aged 41 years. He had been sentenced to imprisonment three times, in 1977, 1979 and 1980, but since 1980 he has no offences in his record thought to merit imprisonment. Since 1980 he has been convicted of a number of offences and all of them were punished by fines.

The information before the primary Judge disclosed that the respondent's family is a large well-established and well-respected family in the Mackay area. That is not, of course, a circumstance mitigating in itself but has some relevance to the possibility of his being a re-offender, as is emphasised on his behalf. There is no record of any previous similar offence.

Counsel also said, and it seems to have been accepted, that the respondent is the main bread winner for his family consisting of a partner and three teenage children. He had a good work record and importantly, as it seems to me, he had assisted in dealing with children of the community who had problems.

The Judge in his Honour's remarks on sentence show that he had taken into account the matters just mentioned. His Honour said, in effect, that Colquhoun was attempting to get even with the complainant and his Honour remarked, "So, there was a sense of honour involved and you were attempting to help a friend." It is submitted for the Attorney-General that the fact that the respondent had, himself, no quarrel with the complainant but was merely lending himself as what is described as "muscle" is an aggravating feature. That appears to me to be correct.

When his Honour referred to the matter as one of "honour", it is argued, and I think correctly argued, that his Honour did not regard the motive as a proper one. He was merely looking at it from the point of view of the offender and it is true, as it seems to me, that that motive is, although not a proper one, not in the same category as mere debt- collecting as in some of the other cases to which we have been referred.

It is evident that the fact that the respondent had been drinking is not a mitigating circumstance. Unfortunately many, if not most, of the offences of violence which come here are associated with the ingestion of alcohol and I think people must appreciate that this will not be treated as an excuse, wholly or partially, except in quite unusual circumstances.

Most of the argument before us is focussed upon the problem of whether or not the sentences imposed are within or without the proper range. It is not possible, at least I have not found it possible, to select any particular case which is very comparable with the present. Here you have a man, of mature age, no plea of guilty, not particularly serious injuries, not injuries apparently having any permanent effect, a motive which although misguided is not as bad as some of those which have been encountered in other cases, and the complainant has escaped perhaps more serious injury by fleeing.

In these circumstances the penalty of three years imposed as a head sentence, although not a heavy one, seems to me not one of which the Attorney-General could seriously complain or, more accurately, one which the Attorney-General could seriously urge warranted interference.

What has troubled me more has been, of course, the fact that if all goes well for the respondent he will be entitled to be released after having served six months of the three year sentence and that appears to me to be light. Although I have not derived any conclusive assistance from any of the cases to which we have been referred I think a comparison with two of the cases upon which emphasis was laid, namely Suthern (CA No 69 of 1998, 17 June 1998) and Houghton and Genrich (CA Nos 424 and 425 of 1997, 26 February 1998), is of considerable assistance. These cases support the view which one would take, simply on the face of it, that the sentence imposed is light, in so far as there is suspension after six months.

I have, however, after some hesitation, arrived at the view that the discrepancy between the sentence which I think might more properly have been imposed and that which was imposed is not of such a character as to warrant the interference of this Court. In so saying, I do not wish to encourage the thought that this sort of sentence, in this type of case, is to be regarded as the standard. It appears to me, I emphasise, to be low but I would on the whole dismiss the appeal.

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