R v Anderson

[1996] QCA 143

COURT OF APPEAL

[1996] QCA 143

FITZGERALD P
PINCUS JA

MACKENZIE J

CA No 434 of 1995
THE QUEEN
v.

JOHN FREDERICK ANDERSON

BRISBANE
..DATE 01/02/96
010296 D.1 T17/KC M/T COA96/1
PINCUS JA: This is an application for an extension of time
within which to appeal against sentence.

The applicant was convicted in the District Court on 22 August last and sentenced on that day. The application for leave to appeal was signed on 27 October, a little over two months later.

The ground of the application for an extension is that the applicant was not advised of the time limitation, or even that he could appeal.

The applicant was 26 years of age at the date of sentence. He was sentenced to three years six months imprisonment for burglary and to four years for grievous bodily harm.

The judge, referring to the applicant's criminal history, described it as unremarkable apart from a break, enter and steal in 1989 and His Honour mentioned that the applicant had had no previous convictions for violence.

An examination of the facts relating to the offences as set out in the applicant's outlines suggests that the sentences imposed were within the proper range. The applicant and some others went to the house of a Mr Hooper at 10.30 one night, armed with various implements, the applicant's brother having an iron bar.

When the brother came into Hooper's residence he attempted to strike Hooper on the head. Hooper attempted to protect himself and his arm was broken as a result.

The applicant and others came in the back door. When they got in, the applicant had an altercation with one of Hooper's sons 010296 D.1 T17/KC M/T COA96/1

and struck him, knocking him to the ground. The son was hit and kicked, being rendered unconscious as a result. Then the applicant, his brother and others assaulted Hooper. Hooper was knocked to the ground, restrained by the group of men and beaten, apparently by the brother, with an iron bar as a result of which his legs were broken. He had, as I have mentioned, a broken arm, ribs were broken, a lung collapsed and he had facial injuries. Not surprisingly, he required surgery. It should be added that there had been incidents between the applicant's father and Hooper prior to the evening in question in one of which the father's arm was broken.

The view the judge took was that the applicant and his brother and others to a considerable extent planned the attack. The judge said that the brother led the attack on the house and the applicant led the action to ensure that people would not escape.

It would be recalled that he came in the rear door.

The worst aspect of the matter, as it seems to me, is that, when Hooper's arm had been broken by the initial contact with the applicant's brother and the applicant had assaulted the son as I have described, Hooper, a man much older than the attackers, was attacked while on the floor.

The judge went on, "He went down and you, Cecil" - that is the brother - "were calling out `Kill him, kill him' and `Hold his legs' which the others did. They held his legs while you pounded his legs with the iron bar. Those blows must have been extremely violent because I accept that when you entered the premises on that night, when you went down the hallway, the iron 010296 D.1 T17/KC M/T COA96/1

bar was straight." The judge took the view that it had been bent in attacking the victim's legs. The judge mentioned that very considerable damage was sustained to the left leg which had a compound fracture. The tibia was broken and the shin bone. The judge was of the view that the victim was lucky to be alive and described the attack as brutal, violent and callous.

His Honour was prepared to accept that there was some remorse indicated by a late plea of guilty and he took that into account. The judge was influenced by a desire to send out a message to others of like mind. His Honour said, "If people decide to take the law into their own hands and seek revenge by invading the homes of others and seriously assaulting the occupants, then they should know that they will go to gaol. They will go to gaol for lengthy periods."

This is merely commonsense. If our society is to have any pretensions to lawfulness, armed raids on people's houses must be severely discouraged particularly where, as here, they bring about serious injury to an occupant.

Counsel for the applicant contended among other things that the sentence might be interfered with on the ground that there was a disparity between the sentence imposed upon the brother and that imposed upon the applicant. It does not appear to me that that suggestion has any substance. In my opinion, the application for an extension of time should be refused on the ground that, if leave were granted, the challenge to the sentences imposed would have no real chance of success.

010296 D.1 T17/KC M/T COA96/1

MACKENZIE J: I agree.

THE PRESIDENT: I agree.

THE PRESIDENT: The order of the Court is application refused.

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