Niceforo v Fanning - [2005] QDC 256

[2005] QDC 256

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 263 of 2005

RAYMOND NICEFORO	Appellant
and
KEITH GRAHAM FANNING	Respondent

BRISBANE

..DATE 15/08/2005

JUDGMENT

CATCHWORDS: Appeal from Magistrate to District Court under Justices Act 1886 s 222 - no appeal against conviction after a trial of assault occasioning bodily harm in a road rage incident - sentence of 9 months imprisonment suspended after 3 months set aside - sentence of 6 months imprisonment to be served by intensive correction order pronounced - offender had served 11 days in custody before obtaining appeal bail -

sentence miscarried when offender (self-represented) was not informed of the risk he faced of imprisonment and failed to present adequate submissions, in particular to mention a medical condition relevant to whether he should be imprisoned - evidence about health condition received on appeal - costs refused

HIS HONOUR: This is an appeal by Mr Niceforo who was convicted by a Magistrate after a trial of assault occasioning bodily harm. It was an incident of road rage which, as a matter of history, was brought to an end when two police officers on patrol observed Mr Niceforo assaulting the complainant, Mr Green.

The Magistrate said it was: "unimaginable where it might have led to had the police officers not been able to be present and remove the defendant from the complainant."

The defendant/appellant is by profession and actual occupation, a truck driver. It seems that both he and the complainant had business in the area of QUT at Kelvin Grove on the day in question. Mr Niceforo had been effecting a delivery there and Mr Green had dropped a lady off so she could attend her work there.

Some difference of opinion occurred on the road when Mr Niceforo (being allowed to get on to the road by persons controlling traffic) came in on a rising stretch in front of Mr Green, who overtook him. According to Mr Niceforo, he was "given the finger" by Mr Green on that occasion and according to Mr Green at the next stop Mr Niceforo's heavy truck complete with bull bar nudged his rear.

Mr Niceforo's version of that is that Mr Green rolled backed. Some distance further on, Mr Green pulled his vehicle over to the side and he says found some scratches on the rear bumper which he surmised had been made by the bull bar. He flagged Mr Niceforo down, obviously wanting to have a conversation with him. The reason may have been no more than concern to get details of persons etc, for purposes advising the insurers of any damage.

The differences in the accounts of the protagonists become extreme from that point on.

Mr Niceforo asserted that Mr Green apparently had threatened to kill him for what he had done; Mr Green denies anything along those lines. He launched a physical attack on Mr Green, he says calculated to get confirmation that any threat was at an end.

Police, as I have noted, observed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Niceforo v Fanning

Details

AGLC: Niceforo v Fanning [2005] QDC 256
Case: [2005] QDC 256
Decision Date: 15/08/2005

CaseChat Overview and Summary

In the case of Niceforo v Fanning [2005] QDC 256, the appellant, Raymond Niceforo, appealed against his sentence for assault occasioning bodily harm. The appeal was brought under the Justices Act 1886 s 222. The incident in question was a road rage attack on Keith Graham Fanning, which occurred when Niceforo assaulted Fanning after a traffic altercation. The matter was brought to an end by police officers who observed the incident and intervened. The District Court was required to determine whether the sentence imposed by the Magistrate was appropriate and whether the sentencing process was conducted fairly.

The legal issues before the court included whether the sentence was within the appropriate range and whether the appellant's right to a fair sentencing process was upheld. The appellant argued that the sentence was excessive and that he had not been properly informed of the risk of imprisonment, which meant he did not present adequate submissions. The court considered the nature of the offence, the appellant's background, and his medical condition, which was not known to the Magistrate at the time of sentencing.

The court found that the sentencing process had miscarried because the appellant, who was self-represented, was not informed of the risk of imprisonment and did not present adequate submissions, particularly regarding his medical condition. The court also noted that the appellant had already served 11 days in custody before obtaining appeal bail. The court allowed the appeal and set aside the original sentence, replacing it with a sentence of six months' imprisonment to be served by an intensive correction order. The court emphasized the importance of ensuring that offenders understand the potential consequences of their actions and the need for them to present relevant information during sentencing.

The final orders of the court confirmed the compensation order, set aside the original sentence, and imposed a new sentence of six months' imprisonment, qualified by an intensive correction order. The court also noted that costs would not be ordered against the appellant.

Orders