R v Daley

[1998] QCA 341

COURT OF APPEAL

[1998] QCA 341

McMURDO P PINCUS JA HELMAN J

Appeal No 166 of 1998
THE QUEEN
v.

WAYNE WILLIAM DALEY	Applicant
BRISBANE
..DATE 05/08/98
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PRESIDENT: Mr Justice Helman will deliver the decision of the
Court.

HELMAN J: The applicant came before the District Court at Brisbane on 1 May this year charged with one count of assault occasioning bodily harm. He pleaded guilty and the learned sentencing judge directed a conviction not be recorded but fined him $5,000 with six months to pay. He seeks leave to appeal against the fine on the ground that it was manifestly excessive.

The complainant was the husband of a Mrs Arnold with whom the applicant had lived for a time when she and Mr Arnold were estranged. The Arnolds were later reconciled and Mrs Arnold left the applicant who then harboured some resentment against the complainant.

On the day of the assault, 14 May 1997, the applicant came to the Arnolds' house. The complainant opened the front door and spoke to the applicant. The applicant then punched the complainant in the face and kicked him about the legs and in the region of his groin. The applicant got on top of the complainant and punched him about six times in the back and head. The applicant said, "I'll fix you up - you haven't heard the last of me", and then drove off.

The complainant suffered a laceration to his nose, tenderness over the left shoulder and swelling over the shoulder blade, bruising and swelling of his thigh, and a superficial graze to his right knee.

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The applicant had no relevant criminal history. He was fully
employed with his own business and had had nothing to do with
the complainant and his wife since July 1997. In September
1997 in the Beenleigh Magistrates Court he had been convicted
of the breach of a domestic violence order but that related to
an incident that occurred in June.

It was common ground before us that a fine had been the appropriate penalty. The question was whether the fine of $5,000 was manifestly excessive. There was no detailed evidence about the applicant's financial position although what was put before her Honour suggests that he had a reasonably successful business.

On behalf of the Crown it has been conceded that the fine of $5,000 was manifestly excessive, and that in the circumstances a fine of somewhere between $1,000 and $2,000 would have been appropriate to the case.

There has not been put before us any case which is truly comparable, but in the circumstances I conclude that there is merit in the application and that a fine of $2,000 would have been sufficient to meet the case. In my view the application for leave to appeal against the sentence should be granted and the appeal allowed to the limited extent of substituting $2,000 for $5,000 as the fine. Otherwise I should confirm the orders made by the learned sentencing judge.

PRESIDENT: Yes. I agree.
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PINCUS JA: I agree.

PRESIDENT: The order of the Court is as stated by Mr Justice

Helman.

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