R v Bunney

[1992] QCA 448

COURT OF APPEAL [1992] QCA 448

PINCUS JA
McPHERSON JA

WHITE J

CA NO. 222 OF 1992
THE QUEEN
v.

NOEL JEFFREY BUNNEY

Applicant

BRISBANE
... DATE 20/10/92
JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence. The applicant was convicted in the District Court on 17 July 1992, and sentenced on 24 July 1992 in respect of offences of entering a dwelling house with intent, and assault occasioning bodily harm whilst in company. He is 29 years of age, and the Judge sentenced him to three and a half years imprisonment, with a recommendation that he be eligible for

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parole when he had served 12 months. The application, which is pressed today by Mr. Shane Herbert of counsel, asserts that the sentence of three and a half years is manifestly excessive.

It is suggested that a sentence a year lower than that, or perhaps lower still, might have been appropriate. Mr. Ridgway, who has appeared for the Crown, has contended that although high, the sentence is just within the range, and is not such a sentence as to permit interference by this Court.

The assault in question was one which had its origins in previous encounters between the parties. The evidence of the complaint, a Mr. Groenwold, was to the effect that in September 1991 he had been assaulted by one Mearer.

He complained to the police. He sustained a broken nose. On 7 November the applicant approached the complainant at a hotel and complained about police interest in the previous incident; he invited the complainant to have a fight with him, but that did not occur. On 14 November, according to evidence which the jury apparently accepted, Mr. Groenwold had been at a hotel. He saw the applicant and Mearer in the vicinity. He went home. Shortly after 8 p.m. he opened his door in response to knocking and found the applicant at the door with a raised fist.

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The door was pushed open by the applicant, Mearer was in the offing, and both the applicant and Mearer came in. There was then what could be described as a fight, but what was, in fact an assault of quite a serious nature upon Mr. Groenwold in his own home. The assault is described in some detail, and it is perhaps worth reading part of the transcript.

"You say Chris Mearer then jumped out from the laundry

and followed him in?-- Yes, that's right.

What happened?-- I was sort of back pedalling down the hallway and Bunney (that is the applicant) was still coming at me. Mearer came in and yelled out, 'We are going to get you for spreading lies about us in relation to the first assault.'"

...

"As you were back pedalling what were they doing?--
They were still coming into the flat.

What did you do?--I didn't have much of a chance to do anything because I was surprised by it."

He said he called out "Help." Mearer yelled, "Shut up." and he goes on, "And Bunney grabbed me by the throat with his left hand." And he indicated he grabbed him on the front of the neck.

"What happened?-- At that stage I was being forced

backwards and then on to the sofa. Bunney still had his one hand, left hand around my throat and Mearer was leaning over me at the same time and he said, 'Do you know what it feels like to die? You are going to die now.'"

And he says that Mearer punched him. Groenwold said that he tried to struggle free and could not. He blacked out. The assailants left and he went to hospital and he was found to have a broken nose - apparently, for the second time - a black eye, a

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slight gash to the lower right eye, and apparently other lesser injuries. The injuries were moderate, but the assault, as it seems to me, was capable of being regarded by the Judge as a frightening one. What the Judge said about it reads in part as follows:

"There are furthermore very bad aspects to this

matter. The complainant was severely beaten in the most brutal and cowardly fashion. You and your companion are lucky that he was not more severely hurt. It was no thanks to you that he was not. This was a premeditated attack motivated by the fact that in your eyes the complainant was provoking you by taking steps to bring your co-attacker to justice for a previous attack which your co-attacker had brought upon him some weeks before."

The Judge also made reference to the criminal history of the applicant, which was discussed at some length before us by Mr. Herbert. It occupies over three pages, but it is fair to say that particularly in the later years the offences are not extremely numerous. The offences are, in substantial part, street offences, but there is a considerable element of dishonesty involved - receiving, stealing, false pretences and matters of that sort. If one comes to recent history, in 1984 the applicant was convicted of an assault occasioning bodily harm, and the description of that assault appears on the record.

It seems to have been quite a serious one, and indeed one whose character was not dissimilar from the present; however, it produced only a $400 penalty. The next serious offence was breaking and entering with intent, also in 1984, which was

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punished by two years probation. Subsequently to that there are a number of recorded offences, but none which seem to be of any great seriousness. So one has a man with a substantial criminal history but, it is fair to say, tapering off, and no very recent assault.

In those circumstances, the application for leave to appeal seems to me to be somewhat marginal. It may be said, and indeed is conceded by Mr. Ridgway, that the head sentence of three and a half years is substantial, and could be described as high.

I have determined that, for myself, I would not interfere. It does appear to me that for a stranger, that is a stranger to the premises, to break into one's home in company with another person for the purpose of assaulting one, is a matter which should be regarded by the law very seriously.

It is also the case, as the Judge pointed out, that had matters turned out a little differently the charge might have been much more serious, and I reiterate that the applicant blacked out. Lastly and I am influenced in this case by this, we have the fact that the trial Judge had the advantage of hearing the whole incident described, and seeing the complainant in the box, and seeing him cross-examined. He is probably able to form a more accurate impression than this Court can of what effect the

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assault had upon the complainant, and its true character. In the whole of the circumstances I would be not inclined to accede to the application, and would dismiss it.

McPHERSON JA: Much as violence is to be deplored and deterred, the more so when it is committed in company against a person in his own home, minding his own affairs, I think the sentence of three and a half years imprisonment imposed in the present case is so high as to be excessive. The assault was not one that took place between persons who were complete strangers. The bodily harm that was inflicted had, it seems, no lasting physical effects, and the fact that a recommendation for consideration for parole after 12 months was made, does not offset the duration of the head sentence.

Since however, my colleagues take a view of the matter that is different from mine, there is no point in pursuing my views of the matter any further. I would, however, otherwise have been disposed to grant the application and allow the appeal to the extent of reducing the sentence to one of two and a half years imprisonment.

WHITE J: I agree that the appeal against sentence be dismissed for the reasons advanced by the learned presiding Judge.

PINCUS JA: The order of the Court will be application for leave

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to appeal refused.

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