R v Demittis

[1997] QCA 217

COURT OF APPEAL

[1997] QCA 217

FITZGERALD P McPHERSON JA de JERSEY J

CA No 122 of 1997
THE QUEEN
v.

VINCENT JOSEPH DEMITTIS Applicant

BRISBANE
..DATE 29/05/97
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McPHERSON JA: The applicant for leave to appeal against
sentence was convicted on his pleas of guilty in the District
Court at Bowen on an indictment charging one count of entering a
dwelling house with intent; three counts of assault occasioning
bodily harm; one count of doing grievous bodily harm and three
counts of wilful damage to property.

He was sentenced on 3 May 1997 to imprisonment for an effective period of five years. The learned sentencing Judge also ordered that a period of some seven months that was spent by the applicant in custody should count towards service under his sentence, although, in fact, six months of it was referable to a driving offence.

The appropriation of the sentences among the various sentences does not for present purposes matter at all, but it may be pertinent to say that the sentence of five years was imposed in respect of the charge of doing grievous bodily harm, and other sentences ranging from three years down to twelve months were imposed in respect of the other seven counts in the indictment.

The applicant seeks leave to appeal against his sentence, and before us has represented himself in asking that we make an early recommendation for parole in respect of the period he is due to serve under that sentence.

On 26 August 1996 the applicant went with another man to the house of a woman named Mary Liveris to confront her over her selling of drugs. He entered the house without being invited; he grabbed her by the throat and smashed her head into a wall 290597 T11-12/JMG10 M/T COA111/97

with such force as to damage the plasterboard. Despite her efforts to escape he pursued her into an adjoining room threatening to kill her. He lifted her up and pinned her against the wall.

Her husband, who tried to pull the applicant away from her, was punched in the mouth, face and body. The female complainant herself fell to the floor where the applicant proceeded to kick her. He then punched the bedroom door three times, it is said, with a consequence that he made a hole in it.

The complainant Mary Liveris suffered a black eye, a swollen forearm, sore ribs and swelling and abrasion to the neck. Her husband suffered a laceration to the cheek and abrasion to or near the eye as a result of the applicant's assault upon him.

The police investigated the matter. In the course of doing so, the applicant made a telephone call to one of the police detectives who was investigating the offences. He did so from a public telephone booth. There was a man waiting outside, presumably to make a call himself, and when the applicant had finished the call he proceeded to grab this man who was a complete stranger and to shake him.

A Mr Christopher Ryan was driving past in his car. He saw what was happening and tried to intervene. He was punched in the head by the applicant and he fell to the ground. He succeeded in making his way back to the vehicle. The applicant dragged him off the bonnet and started to choke him and then punched him in the head. He finally threw him on the ground and began to 290597 T11-12/JMG10 M/T COA111/97

kick him.

When Ryan sat up the applicant kneed him in the head and he fell back again. He then kicked him hard in the face and finally picked him up and threw him into the road. Ryan appears to have lost consciousness at least for a brief period, and he sustained a compound fracture of the jaw and a depressed fracture to the left zygoma. He suffered contusions to his cheek and jaw and also to his right arm. He was bleeding in the mouth and, when taken to hospital, it was necessary to detain him there for some days.

That offence was the one which involved the major charge of doing grievous bodily harm for which the sentence of five years was imposed. After this incident, but on the same night, the applicant went to the home of a woman acquaintance, who refused to let him in, with the consequence that the applicant engaged in repeatedly punching the door and made a hole in it.

He is 33 years old. He has a record of convictions for offences of violence; for offences against property; and for drugs and driving offences, and so on. The list of offences is so lengthy that it would occupy too much time and space to record them all here. They appear in the record.

The explanation of his conduct in the past is, he tells us, that he was a drug addict. He has succeeded in ridding himself of that addiction in the last few years. That is considerably to his credit, but we understand, from looking at matters referred to in the record, that he has now, to some extent, transferred 290597 T11-12/JMG10 M/T COA111/97

his addiction to alcohol.

It seems that he attacked the first complainant, that is the woman Mary Liveris, because she was a drug supplier, or he thought she was. That in no way goes in mitigation of the offence and, indeed, might in fact ordinarily have the opposite consequence.

The idea that individual citizens may take the law into their hands in this way is quite mistaken. It frequently results in serious injuries, and very often they are inflicted on individuals who are quite innocent of any offence whatsoever.

It is not the view adopted in this Court in previous cases that the law may be taken into the hands of citizens or, indeed, that anything but the proper processes of the law should be gone through before a person is dealt with for criminal offences. Vigilante enterprises of this kind are simply not tolerated by the community.

This case too is, it should be noted, one involving an incident of private home invasion, which is a form of conduct that is regarded in a very serious light by the community, as the decisions of this Court reflect. On no view of the sentence imposed on the applicant can it be said that the head sentence was severe and, indeed, on one view of it it appears to me to be a sentence which showed a considerable degree of mildness when regard is had to the serious nature of the conduct and the injuries inflicted.

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In all the circumstances, there is nothing that I can see in the
record, or in the material that has been placed before us, that
would justify making the early recommendation for parole which
is the matter specifically sought by the applicant in this
Court. I would therefore refuse the application for leave to
appeal against sentence.

THE PRESIDENT: I agree and would only add in case the applicant thinks it has been overlooked that the Court is aware that there is contained in the record a report indicating his successful completion of a substance abuse core programme while he was in custody and the period before he was sentenced.

de JERSEY J: I agree.

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

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