R v Fookes

[1997] QCA 39

[1997] QCA 039

COURT OF APPEAL

FITZGERALD P
DAVIES JA
McPHERSON JA

CA No 488 of 1996

THE QUEEN

v.

MICHAEL ANTHONY FOOKES  Applicant

BRISBANE

..DATE 05/02/97

JUDGMENT

DAVIES JA:  The applicant was convicted after a trial in the District Court on 9 October last of unlawful wounding on 9 September 1995.  He was sentenced to four years imprisonment suspended after 18 months with an operational period of five years.  He seeks leave to appeal against that sentence.

The applicant is a 31-year-old man with a short but relevant criminal history.  In 1984 he was convicted of rape and indecent assault on an 87-year-old woman.  He was sentenced to imprisonment for five years.  Then in 1991 he was convicted of assault occasioning bodily harm for which he was sentenced to 150 hours community service.  He also has a conviction for a drug offence which is of no present relevance.  The relevance of the other offences is of course that they are offences involving violence. 

The circumstances of the present offence were as follows.  On the evening of 9 September 1995 the complainant, Mr Solomon, who is dark skinned, was standing at the bar of Friday's Nightclub in Maroochydore.  The applicant came up to him, he said, and told him to "get away from me 'cause you're black and I hate black people and you smell".  Other witnesses heard the applicant say repeatedly, "Fuck off you black cunt". 

After apparently enduring this abuse for some time Mr Solomon palmed the applicant in the face causing him to step back.  The applicant then attacked him and then with a swinging motion deliberately struck him with a glass in the left side of the face.  This caused a number of cuts to his face including to a blood vessel which continued to bleed heavily. The complainant, we are told, will have permanent scarring.  When interviewed by the police the applicant gave a false story. 

The incident, in my view, should be viewed as an unprovoked and cowardly attack on Mr Solomon.  The fact that the latter attempted to push the applicant away is of almost no relevance.  The learned sentencing Judge was right to emphasise the importance of general deterrence of offences of this kind and he was right to conclude that in view of the applicant's previous history of violence this was a case in which leniency could not be extended and although the applicant was entitled to a trial, his exercise of that right, and the fact that his version of events must have been disbelieved by the jury deprives him of the benefit of a reduction in sentence to which he would otherwise have been entitled.

The head sentence of four years imprisonment is, as the respondent has conceded, a high one.  Moreover, I find it difficult to see why if a sentence of four years imprisonment was appropriate for this offence the applicant was entitled to suspension after 18 months.  The most comparable sentence cited to us was that imposed by the Court of Criminal Appeal in Robertson, CA No. 103/89, 18 July 1989.

In that case the applicant struck the complainant in the head with a beer jug with some considerable force causing it to break on contact and to lacerate the complainant's face.  He had lacerations and was scarred for life apparently with a fairly serious cosmetic disfigurement.

The offence therefore seems a little more serious than this case.  On the other hand, although the applicant in that case had been previously convicted of attempted rape and resisting arrest, there had been no offences of violence in his case for 12 years before the subject offence.  The Court of Criminal Appeal held in that case that the sentence of three years imprisonment imposed was within the appropriate sentencing range.

In my view a sentence of four years imprisonment in the present case was outside the range of a sound sentencing discretion.  Moreover, in my view once the appropriate sentence is arrived at I do not see any basis on which there should have been any further reduction whether by way of suspension or recommendation for early parole. 

I think that the appropriate sentence in the present case would have been one of three years imprisonment.  I would therefore grant leave to appeal, allow the application, set aside the sentence imposed, and substitute a sentence of three years imprisonment.

THE PRESIDENT:  I agree.
McPHERSON JA:  I agree.

THE PRESIDENT:  The application is granted, the appeal allowed, the sentence imposed below is set aside, and in lieu this sentence of imprisonment for three years is substituted.

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