R v Field

[1996] QCA 403

IN THE COURT OF APPEAL  [1996] QCA 403

SUPREME COURT OF QUEENSLAND  C.A. No. 324 of 1996

Brisbane

BeforeFitzgerald P.

Moynihan J.
Mackenzie J.

[R. v. Field]

T H E   Q U E E N

v.

ALLAN JOHN FIELD

(Applicant)

FITZGERALD P.
  MOYNIHAN J.
  MACKENZIE J.

Judgment delivered 18/10/1996

JOINT REASONS FOR JUDGMENT FITZGERALD P. AND MACKENZIE J.; SEPARATE REASONS OF MOYNIHAN J. CONCURRING AS TO THE ORDER MADE.

Application for leave to appeal against sentence refused.

CATCHWORDS:     SENTENCE - unlawfully doing grievous bodily harm - 21 year old applicant with relatively minor criminal history - 42 year old complainant - unprovoked, savage and cowardly attack - applicant invaded the complainant’s property and terrorised the complainant’s family - whether two and a half years’ imprisonment within the sentencing judge’s discretion

Amituani (C.A. 524 of 1994, unreported, 28 March 1995)
Davis (C.C.A. 336 of 1990, unreported, 28 February 1991)
Pascoe (C.A. 459 of 1995, unreported, 9 February 1996)
Pop (C.A. 549 of 1994, unreported, 15 March 1995).
Tapuaka (C.A. 192 of 1994, unreported, 3 August 1994)

Counsel:A. Rafter for the Applicant

P. Ridgway for the Crown

Solicitors:Price and Roobottom for the Applicant

Queensland Director of Public Prosecutions for the Crown

Date(s) of Hearing:     10 October 1996

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND MACKENZIE J.

Judgment delivered 18/10/1996

The applicant has applied for leave to appeal against a sentence imposed in the District Court on 16 July 1996.  On that day, he was convicted after a trial of one offence of unlawfully doing grievous bodily harm to Robert Stephen Breslin on 28 December 1995, and was sentenced to imprisonment for two and a half years.  The applicant was born on 21 September 1974, and was aged 21 years when he committed the offence and was sentenced.  While he was not a first offender, his two previous convictions were for relatively minor drug offences.  

The complainant’s daughter, Sheila, and the applicant’s brother, Steven, are the parents of a son, Tyson, who was aged about 18 months at the time of the offence.  Their relationship had ended, and Sheila had formed a new relationship with another man, Daniel Daly.  On the afternoon when the offence was committed, the applicant, his brother Steven, the applicant’s mother, and a number of other females arrived at the residence of the complainant in two motor vehicles at about 5.30 p.m.  The complainant, who was 42 years old, had been fishing and was cleaning the boat which he had used.  The applicant and the other members of his party came over to the front fence of the Breslin residence and “were yelling out for Daniel to come up to them”. 

The applicant and his mother came into the Breslin yard and the complainant told them to leave and pushed the applicant in the chest, whereupon they left the yard.  The applicant’s sister said, “We won’t be giving up until we’ve got Tyson.” 

Steven Field then entered the Breslin yard and ran down towards the rear of the house where Daly was with another man.  According to Steven’s evidence, he went to get his son, Tyson, “but then I saw Daniel Daly there and I had arguments with him before and I was there to sort out - I asked him for a fight.”

The applicant and his mother came over to the complainant, and the applicant grabbed the complainant around the neck, pulled him hard to the ground, and they began wrestling.  The applicant had the better of the altercation and, when he arose, the complainant was curled up, apparently in pain, with blood on his face. 

The applicant commenced to leave but, when the complainant stood up, the applicant came running back and punched the complainant to the right side of his face, knocking him to the ground.  The applicant then commenced to further assault the complainant, but decamped after a neighbour stated that he had telephoned police.

About a fortnight later, the complainant underwent an operation to have a plate inserted in the bone underneath his right eye and there is some prospect of further surgery being required.  Since he was assaulted, the complainant has been unwell, has lost ten kilograms, has trouble sleeping, and suffers recurring headache and double vision at certain angles which affects his ability to drive a motor vehicle.

It is convenient to set out the sentencing judge’s remarks in full:

“..., after a trial you have been convicted of a very serious offence, causing grievous bodily harm.  You are aged 21.  You are a strong man.  I am satisfied that there was no threat to your mother and that you were not at any time going to the defence of your mother.  I regard that evidence as a total fabrication.  I am satisfied that this was a cowardly and vicious attack by you on an older man in his 40s.  The attack was rightly described in evidence as a king hit on your victim.  I am satisfied  you ran up from behind and struck your victim in the area of the eye and the cheek bone as he was turning towards you.  It was a very severe blow.

You have shown no remorse at any time and that is a significant matter.

You had taken alcohol on this occasion.  Shortly beforehand you had threatened violence to a daughter of your victim.  You were in a violent and aggressive mood.

You went to the dwelling-house of your victim.  You entered the yard and threatened violence to him.

Your victim subsequently underwent an operation.  He has had a plate inserted underneath his eye.  He is said to be unwell and to have trouble with headaches and double vision.

It is case where a cowardly attack has had serious consequences for your victim and I regard this as a totally unprovoked attack, and I am not satisfied that any provocation was offered to you at any time.

There is a need to deter others from violent and aggressive conduct of this nature.

I record a conviction.  I sentence you to two and a half years’ imprisonment.”

Before this Court, the applicant emphasised his youth and that he had no significant prior convictions.  The respondent, on the other hand, pointed to the unprovoked, savage and cowardly nature of the attack, which it was said involved the invasion of the complainant’s property and the terrorising of the complainant’s family.

Regrettably, there is nothing remarkable in the applicant’s offence.  In our opinion, the sole question is whether or not the sentence of two and a half years’ imprisonment was within the sentencing judge’s discretion having regard to other sentences which have been imposed in recent times in relation to comparable offences.

In Pascoe (C.A. 459 of 1995, unreported, 9 February 1996), this Court again acknowledged the difficulty, which had been referred to in Amituani (C.A. 524 of 1994, unreported, 28 March 1995), of reconciling all the decisions, even of the Court of Criminal Appeal and this Court, in relation to sentences imposed for offences of doing grievous bodily harm.  On this occasion, the Court was referred to Davis (C.C.A. 336 of 1990, unreported, 28 February 1991), Tapuaka (C.A. 192 of 1994, unreported, 3 August 1994), and Pop (C.A. 549 of 1994, unreported, 15 March 1995).  A number of other decisions were referred to in Amituani and Pascoe.

Although it is regrettable to see a young man who had no established pattern of offending imprisoned for two and a half years, a perusal of the cases referred to has persuaded us that it is impossible to say that the applicant’s sentence was outside the permissible range.

Accordingly, the application for leave to appeal must be refused.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 18 October 1996

The considerations relevant to this application for leave to appeal against sentence are canvassed in the reasons of the President.  The circumstances and nature of the attack on the respondent in my view outweigh any considerations on account of the applicant's youth and the absence of a significant criminal history.  I agree that it cannot be said that the applicant's sentence was outside the permissible range so as to found the intervention of this Court and that the application for leave must be refused.