R v Francis

[1996] QCA 160

COURT OF APPEAL

[1996] QCA 160

MACROSSAN CJ
SHEPHERDSON J

BYRNE J

CA No 44 of 1996
THE QUEEN
v.

GERALD DAVID FRANCIS	Applicant
BRISBANE ..DATE 24/04/96
JUDGMENT
240496 D.1 T9/JB M/T COA75/96

SHEPHERDSON J: On 16 February 1996 a Judge of District Courts sentenced the applicant on his pleas of guilty to two charges, one of unlawful wounding and one of causing wilful damage. The applicant was 34 years of age at the time when the offences were committed on 14 March 1995.

On the unlawful wounding charge His Honour sentenced the applicant to nine months imprisonment and recommended that he be considered eligible for parole after serving three months of that sentence. In respect of the charge of wilful damage, he sentenced him to one month's imprisonment. The applicant's counsel submits that the sentence of nine months was manifestly excessive.

The offence was committed fairly early in the morning of 14 March 1995. The applicant and his wife had separated, they having been married for some little time, and having had a child who, at the time of the offence, was about three months old. There was some acrimony between the parties concerning custody of the child and each had obtained a Domestic Violence Order against the other. The wife had planned to move back to Melbourne. She had booked an early flight on the date on which the offence was committed.

The applicant was living in the same block of units as the wife and her parents. At about 5.30 a.m. on the morning in question he had driven to a milk bar and en route noticed the wife's father's car loaded with luggage. He stopped his vehicle, got out and, after getting a screwdriver, punctured the front tyres of the vehicle.

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He did this to prevent his wife leaving. He was caught in the act by the wife who ran out followed by her father, a man named Whitney. There was a scuffle and the applicant stabbed at Whitney with the screwdriver. It appears that there was a graze of Whitney's rib and later shortly afterwards another attempt to stab which succeeded in striking Whitney in the back under the left shoulder. The laceration penetrated subcutaneous tissue but not muscle. The laceration required internal and external sutures. Whitney pinned the applicant until other men arrived to help.

The learned sentencing Judge in the course of sentencing referred to the history of matrimonial discord and referred also to the existence of the domestic violence orders. He took into account the matrimonial discord leading up to the incident. He also took into account the fact that the applicant was 34 years old and had no previous convictions. There was a reference which, as His Honour said, he took into account as well as the desire of the applicant to continue to remain in Australia, he having been born in South Africa.

It seems, from what we have been told, although not specifically mentioned by the trial Judge, that there was to be an application for custody in the Family Court, and it may well have been that the thought of the child leaving Brisbane had much to do with these offences being committed.

His Honour took the view that the deterrent aspect had to come to the fore and in my view this was a correct approach. He also

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accepted that the offence occurred on the spur of the moment but was made more serious by the fact that there was a domestic violence order restraining the applicant at the time of the offence. As His Honour said, "Those orders are not granted lightly and when granted must be strictly complied with".

In my view the learned sentencing Judge showed no error in imposing the sentence which he did and nor can it be said that the sentence imposed was manifestly excessive. I note in passing that in the written submissions of the applicant's counsel he said the range within the which the sentence for unlawful wounding should have been imposed was for non-custodial to up to 12 months imprisonment. The sentence imposed is within that range.

I would refuse the application.

THE CHIEF JUSTICE: I agree.

BYRNE J: I agree and would add only that, in my view, the existence of the restraint imposed by an order of the court made pursuant to the domestic violence legislation is a significant feature. The existence of the order ought to have impressed upon the applicant the need to avoid situations in which he might lose his composure or his reason desert him.

THE CHIEF JUSTICE: The order of the Court is that the application is refused.

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