Biazos v Begley

[1992] QCA 186

[1992] QCA 186

COURT OF APPEAL

MACROSSAN CJ

DAVIES JA
DEMACK J

CA NO 104 OF 1992

M G BIAZOS  Respondent

v.

MATHEW DANIEL BEGLEY  Applicant

BRISBANE

DATE 23/6/92

JUDGMENT

THE CHIEF JUSTICE:  This is an application for leave to appeal against sentence.  The applicant pleaded guilty to an assault occasioning bodily harm.  The offence took place in the night‑time and the applicant was in fact in company with two other persons.  He was a 20 year-old kitchen-hand earning $150 a week.  He was fined $400.

It is true that the applicant had no previous convictions but the circumstances of the offence were not minor.  He was, after all, in company and it took place at night.  The three offenders called on the complainant and reading from the affidavit of the duty solicitor who represented the complainant below, we see that this occurred; having called on the complainant, the defendant asked the complainant, if he, the complainant, had dobbed the applicant's brother in for stealing cars, and the complainant is then said to have said, "Yes, what about it?", pushing the applicant.  That appeared to start off an escalation.

The applicant's retaliated by a knee to the groin of the complainant and a punch to his ribs.  The complainant then responded but one of the applicant's companions, then as it is said, stood in for the complainant.  The material, which is scanty, does sufficiently indicate that the visit by the three persons involved in this episode together, was because they had planned to prevent what they called a "dobbing in" by the complainant to police authorities.  The episode commended aggressively and the violence, once the three visitors confronted the complainant, promptly occurred.

In fining the applicant, I am not able to say that I detect any error in the approach adopted by the Magistrate.  The elements of being in company, the aggression, the purpose behind it all and the fact that there was a night visit are serious features.  No complaint really is directed against the amount of the fine before us.  The claim is made that the Magistrate, instead of convicting and fining, should have imposed, say, an order for community service or adopted some other approach which would have avoided a conviction.  I do not say that such an approach would not have been open to the Magistrate but it is not one that he adopted.  The question for us is whether the penalty imposed was one which in any way was manifestly excessive entitling us to interfere.  In my opinion it was not and I would accordingly refuse the application.

DAVIES JA:  I agree.

DEMACK J:  I agree.

THE CHIEF JUSTICE:  The application is refused.

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