R v Diana & Attorney-General of Queensland

[1996] QCA 505

[1996] QCA 505

COURT OF APPEAL
McPHERSON JA
DOWSETT J

WHITE J

CA No 403 of 1996
THE QUEEN
v.

FRANCESCO AGAZIO DIANA	Respondent
ATTORNEY-GENERAL OF QUEENSLAND	Appellant

BRISBANE
..DATE 12/11/96
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McPHERSON JA: Justice White will deliver the first judgment of
the Court.

WHITE J: The Attorney-General appeals against the sentence imposed below upon the respondent for unlawful wounding. The respondent was charged with one count of unlawfully doing grievous bodily harm or alternatively unlawful wounding. The jury returned a verdict of not guilty on the first charge but guilty of unlawful wounding. The sentence imposed was one of a three year good behaviour bond with a recognisance in the sum of $1,000 and no conviction was recorded.

The respondent was aged 50 years at the time of the trial and sentence, 49 at the time of the offence. He was an Italian by birth and that has some relevance to the facts of the case. He had come as a young fellow to Australia. He had worked hard when he was in this country and in due course had established himself in a barber shop in the Burleigh district.

At the time of the offence the complainant was a real estate agent working in the area. He had been appointed the selling agent for a property at Burleigh Heads which was rented by the respondent and his wife. The complainant agent had placed a for sale sign on the top balcony of the respondent's residence under instructions from the owner. It appears that the place where the sign was positioned blocked the view of the respondent and his family for which he indicated in his interview he had paid good rental money and it would appear that his wife moved the sign to one side.

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This caused concern to the complainant and on 18 July, having
noticed that the sign had been moved the complainant visited the
respondent's barber shop in Burleigh to complain about the
removal of the sign.

The complainant agent had had no previous contact with the respondent. He had dealt with the respondent's wife in matters relating to the rental of the property in the past and, although she had a hairdressing shop not far away, he indicated that it was not convenient to discuss the matter with her, her shop was apparently not in a direction that was convenient for him and he had called in at the respondent's premises. The respondent was cutting a customer's hair when he came into the salon. A verbal altercation arose between the two men on his entry into the shop and vulgar abuse took place on both sides. The respondent evicted the complainant from his shop by pushing him out of the door and administering a kick in the leg to him.

When the Judge was sentencing the respondent he accepted that the complainant had made racial comments about him although the complainant had denied that in his evidence. Other witnesses said they heard expressions such as "little wog" and "little Greek shit" being said by the complainant.

After being evicted from the shop the complainant followed the respondent back into the shop. The respondent had commenced cutting the customer's hair and the complainant punched the respondent on the chin. It was not said to have been a very heavy blow because the respondent dodged back at the time.

Nonetheless, the complainant left the shop and was followed by
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the respondent and they continued a physical and verbal
altercation on the footpath. The struggle continued and during
which the complainant was stabbed with a pair of scissors which
the respondent still had in his hand along with the comb as a
consequence of cutting the customer's hair at the time when he
was assaulted by the complainant.

The respondent was forced to the ground by the complainant and realised that he had been stabbed when he saw blood on his shirt and felt the wound. The respondent returned to the shop and went about his business. It is said that he washed the scissors; droplets of water were found on the scissors by the investigating police subsequently. The complainant was sitting against the shop front and rang the police and an ambulance on his mobile phone. The respondent made no effort to go to his assistance.

The doctor who attended at the scene noticed that the complainant had a small laceration approximately one centimetre in size in his left chest. He was taken to the Southport Hospital and there examined. The doctor came to the conclusion that there was no apparent penetration of the anterior wall of the chest and the complainant discharged himself from hospital.

He returned the next day. He clearly had some lung difficulties and on X-ray a small pneumothorax was found. This required an intercostal drain and he remained in hospital for some days.

The complainant gave evidence that he suffered some pain around the chest area, particularly in certain movements. The medical 121196 T19/JB M/T COA282/96

evidence at the trial was that untreated the pneumothorax had
the potential to be fatal. There was a slow leaking of air.

On sentencing the respondent for unlawful wounding the learned sentencing Judge concluded that the wound resulted from a deliberate thrust with the scissors into the chest of the complainant by the respondent and that it was not an accidental or a negligent wounding. He certainly found that the complainant hit the respondent on the chin but thought that he was more concerned to restrain the respondent when they were engaged in their struggle out on the footpath.

The learned sentencing Judge found, which would be perfectly apparent, that if the complainant had left the scene after being evicted from the shop instead of re-entering it to punch the respondent, then the offence was unlikely to have been committed. His Honour found that the respondent acted on the spur of the moment and that the scissors were not deliberately chosen as the weapon. It was just that they happened to be in his hand as he ran out after he had been hit on the chin by the complainant.

The learned sentencing Judge noted that the respondent was 50 years of age, he had an excellent background and antecedents. He received many references attesting to the fine service over many years that the respondent had given the community. He did have an earlier conviction for assault some eight years previously which brought a fine of some $300. There was no actual physical contact in that case, but there was an angry 121196 T19/JB M/T COA282/96

altercation in which the respondent had swept some items off a desk or a table onto the ground. That was regarded as an aberration in his life.

The learned sentencing Judge concluded that probation and community service were not appropriate, and he also concluded that because of his background, and the qualities that he had in the community, and the regard with which he was held, a conviction would be a significant ongoing penalty, more than was required by the circumstances of this offence. He accordingly concluded that a recognisance for three years was appropriate.

The Attorney-General has submitted that in an offence which involved a weapon, in particular, the scissors, that the offence should have been marked in some more significant way, with a short term of imprisonment, although it was not suggested that a wholly suspended term would have been inappropriate.

This was certainly a fracas in which both the complainant and the respondent were mutually involved. Insults were traded and blows were inflicted by the complainant as well as the respondent. A serious feature of the respondent's part in this fracas, of course, was the use of the scissors, but as the sentencing Judge said, it was by chance that the scissors happened to be in his hand when he went out on to the footpath to continue the brawl.

As has been observed in the course of submissions, it is quite difficult to make a meaningful difference to the sentence on appeal. It is unlikely that anything other than a wholly 121196 T19/JB M/T COA282/96

suspended sentence would be imposed upon the respondent were the Court to accept the appellant's submissions. It would be unlikely that a man with this background would be taken out of the community after these few months since the time of the sentence and compelled to undergo a few months period of imprisonment which would then be suspended.

Once that is taken into account, then to impose a wholly suspended sentence upon the respondent is hardly different in practical kind from the imposition of the three years good behaviour bond which was imposed upon him below. It is certainly recognised that there may be some greater inherent risk with a suspended sentence in that a person who offends during the operational period would more likely be ordered to serve the term of imprisonment than in the case of a good behaviour bond. Nonetheless, in practical terms, it does not seem to me to be sufficiently different to activate the principles that have been so often expressed on Attorney's appeals.

No doubt other sentencing Judges may have imposed a term of imprisonment either wholly suspended or with some small part actually served in prison. However, having said that, it is simply a different way of expressing the discretion. There is no doubt that brawls with weapons must be regarded as serious offences, however it does not seem to me that what was done below lies outside the scope of a proper sentencing discretion.

The fact that no conviction was recorded was within the sentencing discretion and His Honour, in my view, weighed all 121196 T19/JB M/T COA282/96

the factors when he reached this decision which were appropriate
to this man.

The respondent's community service over many years was a very important factor in reaching this decision. In all the circumstances, I am of the view that the sentence imposed below does not lie outside the scope of a proper sentencing discretion and I would dismiss the appeal.

McPHERSON JA: I agree. On behalf of the Attorney-General, Mrs Clare of counsel, contended on appeal for a sentence of 12 months imprisonment with or without suspension. I think a sentence of imprisonment might fairly have been imposed in this instance, even if in the end it was suspended. It is necessary to re-affirm that offences of this degree of seriousness ordinarily attract a sentence of imprisonment.

Instead the sentencing Judge here imposed a three year good behaviour bond. The practical effect is probably not very different from the lesser of the two sentences for which the Attorney-General contended on this appeal. At any rate, it is not so different, in my view, as to call for interference in an appeal by the Attorney in a case of this kind against the background and in the personal circumstances which have been described by Justice White.

Without in any way sanctioning the course followed in this case, it is, as I see the matter, not one in which this Court should intervene with a view to increasing the sentence that was 121196 T19/JB M/T COA282/96

imposed. I would therefore also dismiss the appeal.

DOWSETT J: I agree with the orders proposed by the other members of the Court and with Their Honours' reasons.

McPHERSON JA: The order is that the appeal is dismissed.

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