R v Fisher

[1997] QCA 158

COURT OF APPEAL

[1997] QCA 158

McPHERSON JA
MOYNIHAN J

de JERSEY J

CA No 115 of 1997
THE QUEEN
v.

ALAN MARK FISHER

BRISBANE
..DATE 30/05/97
300597 T13/SJW M/T COA112/97
McPHERSON JA: This is an application for leave to appeal
against sentence which was brought in this Court by Alan Mark
Fisher. The application relates to a series of offences
committed on different dates for which sentences have been
imposed at various times; but primarily the application is
concerned with the sentences imposed by the learned Judge of the
District Court in relation to a count of attempted robbery and a
count of assault occasioning bodily harm, to which the applicant
pleaded guilty on 24 January 1997 and was sentenced on 28
February 1997.

In order to understand the matter, however, it is necessary to refer to the other offences involved. It will slightly simplify the process of understanding if I identify the offences as falling into three categories A, B and C. Category A consists of three offences, that is to say, assault, wilful damage and stealing, that were committed on 17 August 1995. In respect of those offences, the sentence imposed was originally imprisonment for 12 months suspended after four months. The assault consisted of the applicant's participating in a group of some five men who entered a hotel armed with staves or pieces of wood. They threatened the licensee and then smashed a door and stole some liquor which they took away.

Category B consists of an assault on a prison warder consisting of throwing water at the prison warder. As to that, the applicant was sentenced to imprisonment for five months. That sentence was, naturally enough, cumulative on the other sentence to which I have referred for the category A offences; and it also had the effect of activating the suspension in relation to 300597 T13/SJW M/T COA112/97

those offences in category A.

The offence in that instance was committed on 20 September 1996,
which was, in fact, after the offences in category C, with which
I am now about to deal. They were committed on
16 March 1996, and consisted of an offence of attempted robbery
and another offence, committed in the course of it, of assault
occasioning bodily harm. The attempted robbery was a street
offence. It involved an attack on a man who had, it seems, been
drinking; he brushed past the applicant and the companion;
having done so, he attempted to apologise. He was, however, set
upon and struck. At one stage, the applicant considered taking
the victim's wallet; but, having been told or realised that
there were people watching, he did not proceed with the attempt
to steal, which gave rise to the attempted robbery charge.

In respect of those two offences, the learned Judge imposed a sentence of four years for the assault and two years for the attempted robbery. It is really quite clear that his Honour made a clerical mistake in ascribing the sentences to the two offences in that fashion. He clearly intended that the sentence of four years should be imposed in respect of the attempted robbery and the sentence of two years in respect of the assault occasioning bodily harm. We will make an appropriate correction, so that the record reads as was intended by the learned sentencing Judge. That effective sentence of four years was made cumulative on the sentences for the other two offences in group A and B, which I have already described. In addition to that, the Judge made a recommendation that the applicant be considered for release on parole at 28 August 1998.

300597 T13/SJW M/T COA112/97

Taking it all in all, the sentences seem to me to be not unreasonable having regard to the fact that suspensions were involved and that the sentences that were suspended were re-activated, but the Judge, in respect of those sentences in group A, did not displace the effective duration of imprisonment which was four months.

The applicant before us has made a quite lengthy and impressive plea for special consideration on the basis of his unfortunate history of detention in gaol for much of his life, or at least his adult life, and has put before us the fact that he has been making real attempts to rehabilitate himself. Much as this attracts my sympathy, I must say that I do not think that the sentence in this case was severe, and in the circumstances it is not possible for this application for leave to appeal against sentence to succeed.

I would therefore refuse the application for leave to appeal against sentence, adding however that the sentences in respect of what I have described as group C will be corrected so that the sentence of four years in respect of count 1 in the indictment dated 14 October 1996 (being number 3211 of 1996) is substituted for the sentence of two years imposed for that offence; and the sentence of two years is substituted for the sentence of four years imposed in respect of count 2 in the same indictment. That is simply a clerical correction and is not strictly speaking one which involves a setting aside of the sentence but is simply designed to give effect to what the Judge intended.

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MOYNIHAN J: I agree.

de JERSEY J: I agree.

McPHERSON JA: The order will be as I have stated it.

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