R v Calanca

COURT OF APPEAL [1992] QCA 374

DAVIES JA
McPHERSON JA

de JERSEY J

CA No 230 of 1992

THE QUEEN

DAMON FRANK CALANCA	Respondent
v.
ATTORNEY-GENERAL OF QUEENSLAND	Appellant
BRISBANE ..DATE 19/10/92
JUDGMENT

DAVIES JA: This is an Attorney-General’s appeal against sentence. The respondent to this appeal was convicted in the District Court on 2 counts: one of unlawful wounding, and one of dangerous driving, both having occurred on 14 December 1991. The respondent, at the time of his conviction, was a young man of 25 years of age with no previous criminal history. He was given probation by the District Court Judge for 2 years, together with 200 hours of community service upon the usual conditions.

The circumstances of the offences were that the respondent had formed an attachment with a young woman, who had previously had a relationship with the complainant, which she had resumed by the time of this offence. The respondent felt it necessary to talk to the complainant to persuade the complainant as to the manner in which he, the respondent, thought the complainant should treat this young woman. He took the complainant for a drive in his car, during the course of which he apparently lectured him at some length, and he stopped on 2 occasions. On the second of the occasions the complainant asked the respondent to take him home.

Shortly prior to that the respondent had produced a knife, not in any threatening way, but apparently to clean his toenails, which he did. As the complainant was re-entering the passenger door of the respondent’s car, the respondent struck

him from behind with a knife, apparently apprehending, though
with no reason to do so, that the complainant might attack
him. I would add that there was no provocation by the
complainant at any time.

The complainant suffered any injury in the back from that incident. He managed the wrestle the knife away from the respondent, and ran away. The respondent then chased him in

his car, and very nearly ran him over, though the respondent
said that his purpose in chasing him was not to run over him,
but to catch up to him to take him home.

His Honour, in not imposing a custodial sentence, against which the Attorney-General complains, described this case as an extraordinarily unusual case, and he mentioned a number of the unusual circumstances: not simply that the respondent had no previous convictions, but that he was motivated by desire to see the young woman not hurt, that he apparently was unwell and he had a good work history, and it was an offence - the stabbing - which occurred on the spur of the moment in the unusual circumstances which I have described.

At the sentence hearing, counsel for the Crown also thought the case was unusual. It was he, I should correct myself, rather than His Honour, who described it at that stage as extraordinarily unusual, and he said, in the course of his

submissions, that a custodial sentence would certainly not be
inappropriate, thus conceding, in my view, that a non-
custodial sentence would also have been an appropriate
sentence in the unusual circumstances of this case. In those
circumstances, it seems to me that the Attorney cannot now
complain that a non-custodial sentence is outside the
appropriate range of sentences which the learned sentencing
Judge could have imposed. For those reasons, I would refuse

the appeal.

MCPHERSON JA: I agree.

de JERSEY J: I agree.

DAVIES JA: The appeal against sentence is dismissed.

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The appeal in the case of R v Calanca was brought by the Attorney-General against the sentencing decision made in the District Court. The respondent, Damon Frank Calanca, was convicted of two offences: unlawful wounding and dangerous driving. The circumstances of the case involved Calanca, who had no prior criminal history, engaging in a confrontation with another man over a woman with whom Calanca had an attachment. The confrontation escalated to Calanca stabbing the man in the back, although no serious injury was caused. Calanca then pursued the victim in his car, nearly running him over. The District Court judge sentenced Calanca to probation for two years and 200 hours of community service, rather than a custodial sentence, citing the unusual nature of the offence and Calanca's otherwise clean record.

The legal issues before the Court of Appeal centred on whether the District Court judge had erred in not imposing a custodial sentence and instead opting for a non-custodial sentence. The appeal questioned whether the sentencing judge had appropriately considered the nature and circumstances of the offences and whether a non-custodial sentence was within the appropriate range of penalties for the crimes committed. The Crown's counsel had acknowledged at the sentencing hearing that a non-custodial sentence could also be appropriate given the unusual circumstances of the case.

The Court of Appeal, in dismissing the appeal, found that the District Court judge had not erred in imposing a non-custodial sentence. The judges agreed that the case was indeed extraordinarily unusual, considering factors such as Calanca's lack of a criminal history, his apparent motivation to protect the woman, his health issues, and the spontaneous nature of the offence. They also noted the concession by the Crown's counsel that a non-custodial sentence was appropriate. Therefore, the Court found that the District Court's decision was within the appropriate range of sentencing options and upheld the original sentence.

The final orders of the Court of Appeal were to dismiss the Attorney-General's appeal against the sentence imposed by the District Court. The judges confirmed that the non-custodial sentence of probation and community service was appropriate and within the bounds of the sentencing discretion exercised by the District Court judge.

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