R v Gusa [1994] QCA 510

Court of Appeal (Qld)|1994-10-25|Before: Fitzgerald P, Pherson JA, Derrington J

The applicant is 54 years old, was born in Yugoslavia, and although unemployed at the time of the offence, has an otherwise good work history. He and his wife have two sons, and he has provided for the family for the last 15 years. However, his relationship with his wife had broken down, although both were still residing in the family home at the time in question, as they were waiting for the sale of the property and were financially tied to the house. They lived separately within the house, however. Since the date of the offences, the applicant has been paid for his share of the house and the arrangement whereby they lived under the same roof, but separately, has been terminated.

The applicant's only previous criminal history consists of convictions for behaving in a disorderly manner and for assault, both of which resulted from an incident in January 1993 involving the same complainant and flowing from the break-down of the applicant's marriage. The incident involved an exchange of words between the complainant and the applicant which deteriorated into pushing and shoving. No conviction was recorded on that occasion, and the applicant was placed on a good behaviour bond which was still operative at the time of the commission of the present offences.

It was submitted on behalf of the complainant that the suspended sentence of three years was manifestly excessive, and a suspended sentence of twelve months or even two years more appropriate. A number of factors were referred to, including the applicant's plea of guilty, his age, the fact that his only criminal history relates to an incident involving the same complainant and his wife which also arose out of the break-down of his marriage, his good work history, the fact that the complainant only lived four houses from the applicant and regularly visited the applicant's wife in his own home, and the fact that the complainant and the applicant's wife are in a relationship.

It is apparent that at the time of the offences, the applicant had not fully dealt with his marital problems, even after facing a conviction and being placed on a good behaviour bond not long previously, that is at least in the same year. The fact that the applicant's only misconduct is related to his marriage break-down does not in any sense lend itself to excusing the applicant's behaviour. On the contrary, while the break-down of domestic relationships can no doubt be painful and produce anger, it is essential that these emotions are controlled, and that their translation into anti-social behaviour, especially violence, is neither excused nor condoned.

The experienced sentencing Judge refrained from sentencing the applicant to a term of immediate imprisonment which could have been justifiable, although three years immediate imprisonment would not have been warranted. However, the applicant's counsel accepted that the period of suspended imprisonment was not limited to the period of immediate custody which could be justified. Further, if the applicant commits an indictable offence during the period of suspended imprisonment, he is at risk of imprisonment for up to three years, but may receive a lesser or no term of imprisonment. See subsection 147(2) of the Penalties and Sentences Act 1992.

On the other hand, the sentencing Judge considered, and I agree, that that term of suspended imprisonment was required to provide an enforced extended period of good behaviour in relation to the applicant to ensure or to help to ensure that as he works through his matrimonial problems and the break-down and loss of his marriage, that he does not again offend.

I am not satisfied that the sentence imposed below was manifestly excessive, and I would refuse the application.

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