R v Browne

[1997] QCA 53

COURT OF APPEAL

[1997] QCA 053

FITZGERALD P McPHERSON JA FRYBERG J

CA No 494 of 1996
THE QUEEN
v.

DANIEL FRANCIS BROWNE	Applicant
BRISBANE ..DATE 04/02/97
JUDGMENT
040297 T6/HMH26 M/T COA4/97

THE PRESIDENT: This is an application for leave to appeal against a sentence imposed in the trial division on 8 August 1996. The applicant was found not guilty by a jury of one count of attempted murder but was convicted of one count of causing grievous bodily harm with intent to do grievous bodily harm on 13 July 1995. He was sentenced to imprisonment for 10 years and has applied for leave to appeal on the basis that that sentence was manifestly excessive.

The applicant is 30 years old, born on 2 May 1966. He has a criminal history comprising offences for dishonesty, summary offences, and one prior conviction for assault in 1982, but nothing of particular significance for present purposes.

The circumstances of the offence the subject of this application occurred at a house which was occupied by the applicant, the complainant, and a number of other persons including at the material time one Schliapnikoff, who was the owner of the house.

The applicant was the tenant. The other residents of the house all left in somewhat unusual circumstances including a child of the applicant, and the front and rear doors of the house were dead locked.

The complainant had been sleeping and awoke and went to get some refreshment at about 10.30 p.m. when he was approached by the applicant who was carrying an axe. When the complainant asked what was happening the applicant said, "If you don't start telling me the truth I'm going to split you in fucking two." The applicant then hit the complainant twice in the face with the axe, splitting the complainant's eye and lip. At that time

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it was the axe handle which was being used.

The applicant then ordered the complainant to the ground and struck him again, this time with the sharp edge of the axe, cutting his right calf. Schliapnikoff then poured boiling water over the complainant's body, and when the complainant attempted to stand Schliapnikoff, under the direction of the applicant, smashed a pick handle onto the complainant's head. The applicant lacerated three of the complainant's toes with the axe and swung the axe at the complainant's chest. The axe hit the complainant's arm as he raised it to protect himself and eventually the complainant escaped to a neighbour's home. He required emergency surgery for the injury to his arm which was eventually amputated. He also suffered injuries to his feet, scalp, eyebrow and cheek, all requiring sutures.

The manner in which the trial was defended resulted in the complete absence of any explanation for the applicant's conduct which must be treated by this Court as having neither justification nor reason. In this Court the respondent supports the sentence imposed, in essence submitting that the applicant's determined brutality and lack of remorse placed the sentence within the appropriate range. Reference was also made to his criminal history but, as I have already indicated, I do not think that that has much significance for present purposes.

The applicant submits that the appropriate range is five to seven years, arguing that his personal circumstances and absence of relevant previous convictions are mitigating circumstances. It was pointed out also that the jury found that he did not

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intend to kill the complainant but only intended, if "only" is
the right word, to cause him grievous bodily harm.

As has been said by this Court on numerous occasions, sentences for such offences or for, for example, offences of attempted murder extend over a wide range because of the almost infinite variety of circumstances involved. A number of cases have been referred to in this Court on this occasion by counsel for both parties, and we have been provided with a schedule. I do not propose to discuss the cases. They do not persuade me that this sentence is outside the range of a sound sentencing discretion, especially having regard to the consequences to the complainant of the applicant's brutal conduct. I would refuse the application for leave to appeal.

McPHERSON JA: I agree.

FRYBERG J: I agree.

THE PRESIDENT: The order of the Court is application for leave to appeal refused.

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